By Dr. Ken Broda Bahm:
The voir dire process has got to be one of the most complex, information-rich, and high-stakes communication settings. To someone unfamiliar with the rituals, it won’t always be clear what is going on or why. For new attorneys, or experienced attorneys who just have not selected a jury in a while, it is useful to understand the broad tactical considerations and keep them in mind. The main goal, of course, is to get at the substance — to identify and to deselect those who cannot or will not be fair to you and your client during trial. If you can get jurors talking in ways that start to sow your themes for trial, then that is an important goal as well. That is what you are after, and understanding and mastering the underlying tactics will help you get there.
Having just finished a multi-day jury selection, some of these are on my mind. My advice is based on the “struck method” of jury selection, where the entire panel is questioned, then strikes are exercised to winnow the pool down to the correct number of jurors and alternates. That is, in my experience, the most common method by far, but there are other ways, and every judge is a little bit different. Broadly, though, here are the top tactical questions to keep in mind when following that method.
1. What Is the “Magic Number”?
It is a little funny that everyone calls it “magic” when it really isn’t “magic,” it’s just math. The magic number is found by adding together a.) the number on the ultimate seated jury panel; b.) the number of alternates; and c.) the combined number of strikes to be exercised by all parties. That is the number you need to have in order to get to the phase of making your strikes and then seating the remainder as your jury. When that number exceeds the number of potential jurors you have left, then you have officially “busted” the panel, which may push selection to another day. Sometimes that is done purposefully, so that one party gets a chance to roll the dice on another pool of jurors.
2. What Is Your “Strike Box”?
It isn’t literally the jury box. These days (in the persistent-pandemic mode), potential jurors are more likely to be spread throughout the courtroom gallery, or even in a larger civic venue. The “strike box” is a measure of how far you go into your list before you hit the magic number. If it is 20, then your box at the beginning of the day would be juror seats 1 through 20. Then, as some in that span are excused for hardship, or removed for cause, the box creeps into the larger numbers. It pays to keep this in mind during your questioning. That way, you can focus your time and attention on those who are in the box, or likely to be in the box in the future. When it is time to make your strikes, you will want to strike only those in the box, since striking someone who wouldn’t numerically make the cut is a wasted strike.
3. Who Is on Your “Walk List” and Your “Keep List”?
Many potential jurors will come through the door with a good reason to be excused based on a hardship or excused for cause (a built in reason why they can’t be fair). Some of these you would not mind being rid of, and others you would want to keep in an ideal world. To some extent, the quality of their hardship or cause reason will matter. But mostly, what matters to the advocate is whether this person would be good for your side or bad for your side. Those on your “walk list” are the ones you would not want on your jury, and letting them go on a cause or a hardship just saves you a strike to use on someone else. Those on your “keep list” are the jurors you like and don’t want to let off so easily. You have some room for variation in how hard you argue for or against the various reasons for the potential juror to leave, but venire members and the judge will notice if you’re obviously inconsistent: Travel plans can’t be enough of a reason to excuse those you don’t like, but not enough to excuse those you do like. And that leads to the next consideration.
4. Are We “Tight” or “Loose” on Reasons to Excuse?
It will vary a little for each juror, depending on which list they’re on, but in general terms, you should have a somewhat consistent attitude on whether there is a high standard for being removed from the jury (“tight”) or whether you are pretty easy on accepting potential jurors’ excuses (“loose”). That should be based on your own analysis of the case, the venue, and the composition of those who show up and are trying to leave — are you helped more if the standard is tight or if it is loose? In many (but not all) cases, the plaintiff benefits from a loose standard, because there are more cause-based reasons that work against a plaintiff — if they can get rid of all who hate lawsuits, think damages are out of control, or favor personal responsibility, etc., then they can fundamentally reshape the panel before a single strike is made. In that situation, the defense would want to argue and set the precedent for a tight standard during the first few challenges. Even if that standard might prevent a few defense challenges, it may help the defense overall.
5. What Is Our “Strike Priority” and Our “Strike Order”?
The list of who you want to strike in order of worst to better is your strike priority. Your order is the sequence in which you would make those strikes. The reason that those two are not the same is that strikes are exercised in an alternating fashion: plaintiff makes their first strike, then defense makes their first, then plaintiff’s second, defense second, and so on. If there is a juror you would like to strike, it is possible that the other side wants to strike that juror as well. That actually happens pretty often, since there are many who, during voir dire, might give both sides a reason to believe they’re too risky. If you think your target could be a target for the other side, put them later or last on your order of strikes. That way, you increase the chance that the other side will strike the person and you will win an extra strike.
Ultimately, the jury selection process is about the questions you ask, the answers you get, and the choices you make based on all of that. It is not just a game of tactics, it is a chance to get to know your panel and to make some strategic decisions that will improve the fairness of the results. Keeping the tactics in mind will also help you realize those broader goals.
Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current area of litigation, or a question about your own case, contact me now.
Other Posts on Jury Selection:
- Look at Whether Your Jurors Are Reading: It May Say Something About Their Empathy
- Add Context to Your Voir Dire
- Peremptories: Don’t Learn from Arizona