Litigation Tips Archive

Avoiding Stereotypes in Voir Dire

Most people use stereotypes as quick and easy ways of judging other people. Social psychological research on stereotypes has been conducted for almost 80 years and in general, has revealed that stereotypes often lead to bad decisions. Although, by definition, stereotypes contain a “kernel of truth,” they are conducive to producing judgmental errors because of their reliance on generalizations. Many attorneys rely on generalizations about certain types of people based on gender, race, occupation, and other demographic characteristics. These generalizations, in turn, lead to stereotypic decisions about the type of person who would or would not be a good juror for a particular case. Given that decades of social psychological research have revealed little predictability of jury verdicts based on juror demographics, it should come as no surprise that jury selection based on demographics and stereotypes is likely to be inaccurate. The dangers associated with demographically and stereotype based jury selection are due to: (1) reliance on information that has little basis for predicting verdict; (2) likelihood of failing to exercise a peremptory challenge on someone who should be excused because challenges have been used to strike other jurors based on stereotyping; (3) inability to ask probing questions that allow the attorney to get to know the prospective jurors’ personalities, attitudes, values, beliefs, and life experiences, all of which are more related to verdict than generalities based on stereotypes; and (4) a general tendency to prefer jury selection decisions that are “good enough” instead of accurate. Each prospective juror is a unique person who deserves the attorneys’ and court’s time in finding out whether he or she will be well suited for the case at trial. A “good enough” strategy in jury selection is likely to backfire when important voir dire questions, designed to obtain crucial information, are discounted in favor of finishing jury selection as quickly as possible.

Interestingly, there have been research studies that reveal lawyers’ experience in selecting juries does not necessarily lead to accuracy. In fact, lawyers are accurate in predicting which jurors are favorable to their side of the case 50% of the time, meaning they are performing this important task at chance level, much like the accuracy of predicting the outcome of a coin toss. In addition, research has shown lay persons are as accurate as lawyers when it comes to selecting juries. The primary reason lawyers perform poorly on jury selection decisions is their use of demographics and stereotypes. Avoiding stereotypes requires a major shift in thinking on the part of trial counsel. Asking though provoking questions, most important, open ended questions that require the venire members to do most of the talking, is a skill that must be fine tuned in order to lead to accurate decision making. Selecting the people who will decide the case demands accuracy over “good enough,” or “that one will do,” decisions. Overall, there is more to conducting an excellent voir dire than asking simple questions that demand socially desirable answers.

Contact Magnus for instruction in voir dire techniques that will enhance your accuracy in selecting juries.

People are NOT Reptiles and Reptiles are NOT People

The latest fad among plaintiffs’ lawyers is viewing the people who decide their case, that is, the jury, as comprised of individuals with brains that function in reptilian ways. This fad would be humorous if it was nothing more than an interesting way of describing a certain type of person, in much the same way as members of certain professions are referred to as “sharks” or “snakes,” however, the reptilian view of jurors goes much deeper than that, leading to an erroneous view of the way in which juries make decisions, not to mention human nature as a whole. Magnus Research Consultants does not endorse any view of jurors that does not hold them in high esteem and we have chosen to write a brief overview of our reasons for opposing the premises behind this latest fad in litigation. First, just as there is no scientific basis for the view, held by many attorneys, that demographics predict verdict, there is no scientific basis that the human brain is similar to the reptilian brain. The reptile enthusiasts are touting the validity of their “theory” on outdated neuroscience research from the 1960s. Those of us who have conducted scientific research on the ways in which people make decisions know we humans are far more complex than reptiles and we are not even closely related on the phylogenetic tree! Second, there is no “one size fits all” approach to jury selection and jury persuasion. Adopting an overly simplistic view of people and the decisions they make is likely to lead to mistakes. The “safety” themes endorsed by reptile fans may appeal to some people, but certainly, they are not for everyone. It seems as if some attorneys have jumped on the latest bandwagon out of a desire to make decisions about jurors that are “good enough,” when their decisions should be based on a desire for accuracy.

Magnus’ Director of Research, Dr. Melissa Pigott, has spent decades in the scientific study of human behavior. As a psychologist who works with attorneys on complex cases throughout the U.S.A., Dr. Pigott guarantees her opinions about jurors are based on actual psychological research, not the latest “pop” psychology fiction that is being sold to attorneys.

Contact Magnus for help in understanding that people are people; people are not reptiles.

Background Checks of the Venire

There are a wide variety of methods that can be utilized to obtain information about potential jurors during jury selection. Gone are the days when the trial attorney merely asked voir dire questions then, based on the potential jurors’ answers to the questions, exercised challenges for cause and peremptory strikes. Oral voir dire questioning is, of course, still used during most jury trials and written questions in the form of supplemental juror questionnaires are also used in an increasing number of cases, however, these methods are rarely used absent other forms of investigations into the jurors’ backgrounds. The services of private investigators and others who perform background checks are a valuable supplement to the information provided in the venire members’ answers to the attorneys’ voir dire questions. It is also relatively easy for someone who works for the trial attorneys to conduct searches of potential jurors’ backgrounds by purchasing information readily available on the Internet. Even simpler are in house searches of potential jurors’ social media accounts and GoogleTM or similar databases of public information. Obtaining information from sources other than the jurors’ answers to voir dire questions is essential. This information may yield one or more of the following results: (1) the attorney may find one or more jurors have omitted important details in their answers to voir dire questions; (2) the attorney may obtain information that, although not case specific in nature, may reveal a source of potential bias on the part of one or more jurors; (3) the attorney may uncover dishonesty on the part of one or more jurors in the answers to voir dire questions; (4) the attorney may obtain useful information that enables him/her to inquire about issues of interest to the potential juror; and (5) the attorney may discover that one or more venire members has been blogging or otherwise engaging in outside communications prohibited by the court. Although background searches should be performed prior to seating the jury, it is also important to monitor the jury’s Internet use once the trial is in progress. Even though the jury will have received the court’s admonishment to refrain from using the Internet during the course of the trial, it is unrealistic to expect all of the jurors to comply with the court’s instruction. Therefore, in an abundance of caution, particularly when the trial involves high profile or controversial issues, the jurors should be monitored daily for the duration of the trial. Today’s jurors are more informed than ever before. It is essential for attorneys to embrace the challenges of trying cases to today’s jurors using every tool available. Traditional means of obtaining information about the venire will stop short of providing the attorney with all of the information needed to decide the suitability of potential jurors.

Contact Magnus for information on how to “really get to know” your jury.

Judge’s Expectations During Voir Dire

Voir dire is a difficult process. It is made even more difficult by attorneys’ reluctance in inquiring about the judge’s expectations. All judges have expectations about important issues such as: the time each attorney has to ask questions; the seating arrangement of the venire; the movement of jurors within the panel once a strike is exercised; whether a written juror questionnaire will be permitted; where the attorneys may stand during voir dire; and how the striking process will be conducted. The most effective litigators know that asking the judge about his/her expectations regarding the voir dire process makes jury selection considerably more efficient and effective.

Contact Magnus to learn more about streamlining your voir dire.

Case Specific Voir Dire

Over the past decade, social scientists and legal scholars have conducted considerable research on the ability of jurors’ answers to voir dire questions to predict verdict. This research has consistently revealed that jurors’ answers to case specific questions are the best indications of jurors’ predispositions. The next best predictor of jurors’ predispositions are personality based questions that provide a view into jurors’ underlying characteristics. Research has also shown jurors’ demographic characteristics to be the worst predictors of verdict. The reason demographics are poor predictors of verdict is obvious: people who share demographic traits are fundamentally different as individuals. Nothing, including using sophisticated computer software designed to profile jurors based on their demographic characteristics, can replace a thoughtful voir dire approach that assesses how jurors respond to the key case issues.

Contact Magnus to obtain a complimentary publication on voir dire mistakes and how to avoid them.

The Importance of Developing Cause Challenges

The Litigation Consultants at Magnus have had a wide variety of experiences with attorneys during the jury selection process. We have found that attorneys differ considerably in their willingness and/or ability to develop challenges for cause. All too often we have observed questioning of an unfavorable juror being stopped short, before the necessary statements are made to elicit a challenge for cause. The attorney conducting voir dire must ask a series of questions of the unfavorable juror in order to provide the court with reasonable doubt as to the juror’s ability to be fair and impartial. (These questions are typically specified in case law pertaining to jury selection.) Given the relatively few peremptory strikes available to the attorney, expertise in developing cause challenges is essential for a successful voir dire.

Contact the jury selection experts at Magnus for information on how to develop cause challenges.

Making and Defending Neil Challenges

Many attorneys miss valuable opportunities to make Neil challenges. In fact, many attorneys who work in the civil trial arena appear unfamiliar with the case law on Neil and its related cases, all of which pertain to the impermissibility of excusing a juror based on membership in a protected class such as race, ethnicity, or gender. If opposing counsel has challenged a potential juror from a protected class, you must be prepared to make a Neil challenge to the court, to force opposing counsel to justify a reason, other than the juror’s membership in a protected class, for excusing the juror from serving on the case. The court must then exercise its option to either excuse or keep on the panel the juror in question, based on the strength of your argument. When you are attempting to excuse a juror who is a member of a protected class, you must be prepared to present the court with legitimate reasons for excusing this juror. In both instances, there is an abundance of case law to guide your handling of prospective jurors from protected classes.

Contact Magnus for expert assistance in selecting your next jury.

What to do when the Opposition reveals you have a Jury Consultant

On rare occasions, the presence and identity of your jury consultant may be revealed to venire members by opposing counsel. Although Magnus Research Consultants works with its clients to prevent the disclosure of the consultant who is participating in selecting the jury, including preparing motions for the Court to prevent such a disclosure, sometime there is no way to avoid the disclosure of our role in the courtroom. When our presence has been revealed, the most effective way to counter opposing counsel’s comments has been to acknowledge your retention of a jury consultant to help you select a fair and impartial jury in a most important case in which you are trying to do everything possible to help your client achieve the justice he/she/it deserves. Follow this kind of statement with a question raised to all venire members as to whether they have any concern whatsoever with your retention of a jury consultant to help you with jury selection. Taking opposing counsel’s remarks in stride is an essential part of your overall jury selection strategy.

Contact Magnus for expert jury selection consultation.

Professionally Written Voir Dire Questions

One of the most requested services offered by Magnus Research Consultants is voir dire consultation, including preparation of voir dire questions. Although some attorneys have considerable experience writing voir dire questions, the questions written by Magnus’ consultants are vastly different from those written by attorneys. The first distinction in Magnus’ voir dire questions is that they are customized for the issues specific to the case in trial. We have been contacted on numerous occasions by attorneys who want to purchase voir dire questions for their case, based on the erroneous assumption that we have a database of questions prewritten without regard to the particulars of a case. Magnus has strong beliefs about the need for writing fresh, innovative, customized, voir dire questions, as opposed to merely recycling questions from one trial to the next. Magnus also writes voir dire questions to elicit jurors’ open and honest discussions about the case issues. We are far more interested to know how the jurors feel, what they believe, and their life experiences as they pertain to the case at issue than we are in tabulating how many prospective jurors raised their hands in response to an inquiry. Magnus’ voir dire questions go well beyond simple interpretation of juror demographics – we know demographics are not predictive of verdict.

Contact Magnus to obtain our expertise in your next voir dire.

Jury Selection and Hardship Challenges

    The dynamics of jury selection have vastly changed in the decades since Magnus Research Consultants’ Director of Research, Dr. Melissa Pigott, has been selecting juries for attorneys throughout the United States.  Years ago, hardship challenges were rarities and were granted by judges only in extreme circumstances, for example, if a prospective juror was self employed, worked solely on commission, or had to care for a young child.  Today’s jurors face a plethora of life challenges never before witnessed when selecting a jury.  Although federal courts are still less likely to grant hardship challenges than state courts, they, too, are being faced with a different jury pool than in prior years.

     In addition to the usual and customary hardship challenges attorneys and their jury consultants expect, there are other hardship challenges that have arisen largely as a result of the economic downturn that began several years ago.  Today’s prospective jurors are more likely than ever before to indicate they cannot sit on jury for more than a day, or sometimes two, because they: (1) no longer have a vehicle in which to drive to the courthouse; (2) have been unemployed for an extended period of time and must continue to search for a job on a daily basis; (3) are just beginning a new job after a protracted period of unemployment; (4) are caring for an elderly and/or infirm loved one who lost his/her home and is living with them; or (5) cannot afford to pay for gas, meals, etc. in advance of being paid for their jury service.  There are numerous prospective jurors in every venire Magnus has observed lately who are noticeably upset and concerned that their jury service will pose an undue financial hardship on them.

     A substantial factor that relates to hardship challenges is the reduced venire size in many states, including Magnus’ home state of Florida.  Several years ago, Florida courts reduced the number of venire persons on a “typical” panel as a cost savings measure.  In some civil cases on which we have consulted in recent months, the venire size has been as low as 24.  The low venire size, when coupled with the higher number of hardship challenges, has made jury selection extremely difficult in some cases.  On several occasions, additional jurors have to be obtained from the larger venire (often including jurors who have been de-selected from other cases during the same trial period).  When this occurs, lengthy delays often occur, leading to a longer than expected jury selection process which, in turn, frustrates the first venire and in some cases, has led to outbursts that create problems for the litigants and the court.  On other occasions when the hardship challenges are more numerous than the judge expected, there have been no additional venire members waiting in the jury assembly room, thereby causing a mistrial. 

     In general, attorneys who are planning to select a jury should confer with the trial judge well in advance of the first day of jury selection regarding the venire size as well as the judge’s overall philosophy on hardship challenges.  If the court will agree to a pre-screening process in advance of bringing in the venire for a specific case, this will often expedite the jury selection process in that the hardship challenges will already have been exercised prior to the attorneys’ questioning.  Finally, all of the attorneys who are involved in selecting today’s juries should be cognizant of the fact that there are many more factors that impact the lives of our jurors than ever before.

Contact Magnus to obtain our expertise in selecting your next jury in circuit or federal court.