Ten Questions You Should Ask Jurors
As we've discussed before, jury selection, or voir dire, varies tremendously from court to court. In some places you get literally days to ask highly personal questions of an army of people. In others you get the first eight folks in the box and learn that Fed. R. Civ. P. 47 effectively reads “LOL just let the judge do whatever.”
But assume you have some minimal input into voir dire questioning, either because you can ask questions yourself or because you've been ordered to submit proposed questions to the judge. What should you ask? Obviously, every case is different, but there are roughly ten categories of questions that you should try to ask in essentially every case.
1. Know Any of These People?
It goes without saying that you don't want the other side's mother or brother sitting on the jury. And even the dimmest lawyers will usually ask whether potential jurors know the plaintiff or defendant. But there's a whole parade of people who come through the courtroom during a trial and you need to know of any of the jurors are acquainted with any of them. So do not forget to ask about witnesses, trial support staff, and folks who aren't testifying but whose names appear on exhibits. And as a final check ask the jurors if they know anyone else in the courtroom, including each other. The last thing that you need standing in the way of a unanimous jury is a divorced couple squabbling with each other inside the jury room.
2. Sue or Been Sued?
Prior experience with the legal system is a massive source of potential bias. Individual plaintiffs and defendants often find litigation to be a traumatic experience and come away with very strong opinions about attorneys, courts, insurance companies, and even “plaintiffs” or “corporations” as a class. If one of your jurors spent three years suing a neighbor over a rotten tree or was questioned at trial about their experience in a car accident, you need to know that. And be sure to ask about family and close friends as well—a juror who watched their father or daughter humiliated on the witness stand is going to have very specific ideas about how you should behave in the courtroom.
3. Know Anything About the Industry?
One of the great things about litigation is that you get to learn – at an extraordinary level of detail – about how various businesses or activities function. In your normal life you'd probably never need to know about how trade financing for semi-finished metal products works or what major design limitations exist in coin operated arcade games. But for the right trial you need to learn it and learn it well enough to teach eight people off the street.
Because trials involve teaching specialized knowledge, you need to find out whether your jurors are walking in with a background on the topic if your case turns on a botched surgery, you need to probe for any medical industry experience of any kind. Why? Because an experienced juror will know things. Because other jurors may defer to them because they know things. And because many of the things they think they know may turn out to be wrong.
This isn't to say that you never want an educated or experienced juror. But it impacts your presentation, so if you are making the choice, you need to know that you are making it.
4. Do You Work For the Other Side of the Bar?
In some areas of law there is no plaintiff or defense bar. Indeed, for the kinds of commercial cases we often handle, which party is the plaintiff, and which side is the defendant is often arbitrary and the idea of there being an organized plaintiff’s or defendant’s bar seems ridiculous. But in other areas of law like mass tort, personal injury, or criminal law, the firms, lawyers, and even vendors and service providers are totally bifurcated, with some serving only plaintiffs and others surveying only defendants.
People who work in these bifurcated ecosystems tend to develop pretty strong opinions on the other side. It's only human nature. If your job is defeating discrimination claims, you're probably going to tell yourself that most or all of them are frivolous. If your job is bringing false advertising cases, you're going to see yourself as a defender of consumers against corporate greed, not a shakedown artist responsible for warning labels (“do not eat”) on wax fruit.
As such if you've got a case in a bifurcated bar, you've got to check whether jurors have any connection to the other side’s ecosystem. In criminal cases that means asking about experience with law enforcement, corrections, or prosecution. In personal injury or mass tort cases, that means probing about insurance industry experience. This isn't to say that you would never accept a juror who had some connection to the other side's ecosystem. But as above if you are making the choice you need to know that you are making it.
5. Are You an Entrepreneur?
There is a huge temperament and experience gulf between people who start businesses and people who don't. Neither side is necessarily better or worse, but there is a lot of information baked into “have you tried to start a business?” It tells you about how they approach risk, how they view employee employer relationships, and what experience they may have with issues like insurance, financing, and contract disputes. Not every would-be entrepreneur is the same, but finding out that a potential juror tried to start a business and asking just a few follow up questions about what it was whether it was successful and why it succeeded or failed can give you a very good read on how a juror approaches many legally significant issues.
6. Have You Been the Victim?
You need to know if a juror will sympathize with the plaintiff. Sometimes this is obvious. Every car crash lawyer asks potential jurors if they've been in a car crash. But many lawyers do not stop to think about the fundamental “wrongs” in the case and whether potential jurors have been the victim of them.
For example, a case may nominally be about a broken contract. Most jurors will not have been involved in a contract case. But plenty of them will have been in a situation where someone made-up an excuse to get out of doing something that they promised. Most jurors in a drug defect case will not have been poisoned by a medicine. But plenty will have had a situation where a company was an honest with them about a product.
Trials are morality plays and there are only so many species of sin. If your jurors have been sinned against in a way that mirrors the case, you need to find out.
7. Have You Been Falsely Accused?
Most people, god willing, will never be falsely accused of a crime. But lots of people in the world have been falsely accused of something. Maybe they had a crazy friend or a bad boss or were in a relationship with a “toxic narcissist” as the kids would say. Either way someone accused them of doing something that they unambiguously did not do.
Being falsely accused is a very unpleasant experience and it cannot help but color how someone views a swearing contest like a trial. As such, it's not enough to find out whether a potential juror has literally done the thing the defendant did. If the defendant is going to say that the plaintiff’s story is a malicious lie, you also want to know if any of the jurors believes that they have had malicious lies told about them.
8. What is Good and What is Evil?
Every trial is about right and wrong and ideally you want the jurors to think that your client is on the side of virtue and the other side solidly rooted in wickedness. But the world is wide and not everyone agrees on what is vice and what is virtue. Is ambition virtuous? Is religious devotion virtuous? Is political activism virtuous?
Some important questions you ask jurors directly. But some equally important questions can only be asked indirectly. So you ask jurors who they admire most and why. You ask them what charity they would donate to if they could. You ask them the most important lesson a parent can teach their children. This isn't so that you can assemble some sort of top ten list. It's because you need to know if a juror believes in right and wrong and what they think qualifies for each.
9. Are You Insane?
Some people in your jury pool are crazy and you'd probably prefer that they not make the cut. Some may literally be mentally ill, but others are simply weird or disagreeable in ways that make their actions in jury deliberations unpredictable or just generally disruptive. Like virtue ethics, it's difficult to ask about this sort of thing directly. No one is going to give a straight answer to “are you a weirdo?”
So how can you guard against crazy jurors? By ensuring that every person who ends up on the jury has spoken—out loud—about something of substance for as much time as you can spare. Forms and questionnaires are nice and can save time on background information gathering. But if you're a juror is someone who can't speak for five minutes without going into a tirade about Q-Anon or how their boss conspired with their girlfriend to turn everyone against them, you need to know that before they get on your panel. Not every crazy person will present as crazy in casual conversation. But many will and you don't want any of them on your jury.
10. How Much Do You Want to Be Here?
The average person's desire to be on a jury ranges from neutral trending negative to solidly negative. This is understandable, as jury service is dull, inconvenient, poorly compensated, and can involve exposure to deeply unpleasant information. So there isn't anything disqualifying about the fact that someone isn't jumping for joy to be put on a jury. The fact that someone doesn't want to be on a jury is not reason to exclude them.
But if someone's reaction to jury service is wildly outside that normal range, either because they seem eager to be put on a jury or violently angry about the prospect, that's a serious red flag. People looking to serve may have an agenda that you don't want any part of. And anyone who puts curse words on a jury questionnaire—yes this happens—is either emotionally unstable or in a place where they cannot possibly do the job fairly.
So you need to ask questions that gauge enthusiasm or hardship, not because you expect a lot of meaningful answers but because a truly aberrant result is cause for concern.
