By: Dr. Ken Broda Bahm –
Last week, in part one of this post, I wrote about the increasing tendency for jurors to express irritation and insecurity at the prospect of serving out their jury duty, a greater proportion of hardship claims, and some recent research showing that the resulting changes in the jury pool could lead to a more defense friendly climate. The other lesson to be taken from this information relates to voir dire strategy for those who are not eliminated for cause. Where the circumstances allow, you should sensitively question your potential pool on their economic vulnerability. In an employment defense, for example, you will want to look for several risk factors indicating that your potential juror is economically vulnerable:
- Unemployed or under-employed and seeking work
- Believes that they have been unfairly terminated or suspended from a job
- Believes that they have been singled out for unfair treatment at work
- Philosophically opposed to “at will” employment
- Believes employment is a right not a privilege after a period of years (e.g., “tenure”)
- Believes that only the most extreme circumstances justify a termination
- Believes that employees need to be offered a second, third, or fourth chance
- Believes that they have been (or someone close to them has been) the object of workplace retaliation
- Has felt, or knows someone who has felt discriminated against in the workplace for race, age, gender, nationality, or religion
- Has received poor evaluations in the past that she or he has deemed to be unfair
- Has had job changes to his or her disliking
- Has been forced to move from higher status position to lower status position
- Belongs to or supports a consumer advocacy group
- Comes across as low in personal responsibility (e.g., identifies external factors as the cause of past problems)
So the next question is, how should you use time in oral voir dire to sensitively identify those individuals who might fit those categories, and have lower than average employment security? The following sequence provides one example, with questions on the left and an explanation of the strategy on the right.
| Employment Security Bias Questions | Commentary |
| 1. I’d like to ask you about terminating or firing someone from a job. I know these questions might feel a little personal so please forgive me and know that I don’t need any specific details from you on this subject. | In order to prevent jurors from being reticent during this segment, fearing that they will be embarrassed by very personal follow-up questions, begin by asking for their understanding, and providing the reassurance that you will not be needing details. |
| How many of you have ever been in the position of having to let someone go from a job – having to terminate somebody? Have any of you had to face that decision? | As long as you have a sufficient number of panelists with management experience (so as to not highlight a favorable minority), it will help to remind jurors that there is another side to the termination equation.
These questions are designed to elicit the theme that terminations are often necessary and are no cause for blame. If a substantial number of those on the panel have terminated employees, then it cannot be too shocking that the defendant has as well. |
| a. Mrs. C, without revealing any details that are private, could you tell me generally what that situation involved? | |
| b. Mr. D, I noticed that you also raised your hand. Could you tell me what your situation involved? | |
| 2. Let me move to a slightly different area of questioning – an employee’s choice to resign from a job. How many of you have ever resigned from a job? | If the facts of your case contain some ambiguity on whether the plaintiff chose to leave or not, then you should move on to asking about resignations. Again, the message that you are after is the confirmation that an employee’s choice to leave is a common one.
If your facts contain no such ambiguity about the employee’s choice, then you would leave out question #2. |
| a. Mrs. C, without revealing any details that are private, could you tell me generally what that situation involved? | |
| b. Mr. D, I noticed that you also raised your hand. Could you tell me what your situation involved? | |
| 3. Now, let me flip around my last question. It certainly happens to many of us at some point in our lives — but if you don’t mind sharing, how many of you have ever been terminated or laid-off from a job? | Once you have sent the message that termination and/or voluntary separations are common, it is time to target the first risk factor: experience of having been terminated. Again, reassure jurors that termination is a normal enough experience that jurors shouldn’t be ashamed to admit it (…and shouldn’t lead to blame either). You will want to note those who raise their hands as potential strikes, but avoid following up with them, in order to avoid negative statements. |
| 4. Has anyone here ever heard of the phrase “at will employment?” | When asking about the meaning of “at will” employment, you will want to fish until someone comes up with the notion that it cuts both ways – e.g., it means that either side can end an employment contract with or without cause. |
| a. Mrs. E, what does it mean to you? | |
| b. Mr. F, anything else? | |
| 5. Mrs. G, is the idea of “at will” employment something that you support or not? | Once the concept is defined, ask for open-ended responses about the value of “at will” employment. If the juror supports it, ask how many agree and why. If the juror opposes it, ask how many disagree, and why. In each case, your goal is to identify those in the presumptive minority who oppose “at will” employment, while hearing thematic statements from the presumptive majority who support it. |
| 6. I’ve noticed there are some different points of view on “at will” employment. Some people don’t agree with this notion of “at will” employment. They feel that, setting the law aside, a person should never be fired unless they have committed some very serious offense. Others feel that, while it is never nice to terminate someone, if that person isn’t performing after several chances, it can be better to let them go. | If the open-ended question does not lead to a clear division of supporters and opponents of “at will” employment, or if panelists are unclear about what you mean, you might consider asking it as an either-or option. |
| a. How many of you would say that you are closer to that first group – employees should never be fired unless they have committed some very serious offense? | Again, you will want to take note of those who oppose “at will” employment, but avoid following up with them (by asking “why,” for example) because they will only make thematic statements that are counter to your case. |
| b. And how many of you would say that you are closer to that second group – after several chances, it can be better to let them go? | Save your follow-up for those who are likely to speak more favorably about the need to have “at will” employment. |
| 1. Mrs. G, why do you think so? | |
| 2. Mr. H, do you have any different reasons? | |
| 7. Now, you’ve heard some about this case already and possibly guessed some of the rest. In this case, Mr. Smith is suing because he was terminated from a job and he believes that he was treated unfairly.
Now, with this in mind, I do need to ask you one question — and I don’t mean to unfairly pry, so I’m not going to demand details from any of you, but have any of you ever left a job and been left feeling as Mr. Smith feels: that you were treated unfairly? |
Having covered the abstract issues that are relevant to the case, you may also want to ask more directly: How many of you have been in the same position as the plaintiff?
Note that because these jurors are higher risk, it is wise to note who they are, but not to follow up by encouraging them to talk more about what they think about the experience, as that could potentially influence the rest of your panelists. |
| 8. Have any of you ever left a job and felt that, all things considered, it was probably for the best? | To flip the previous question around, it is also possible that individuals have left a job and not felt that it was necessarily a bad thing. |
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Related Posts:
- Assess Your Juror’s Economic Security: A Vulnerable Juror Can Make for a Vulnerable Defense (Part One)
- Understand Juror Bias, But Bet on the Evidence
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Photo Credit: wynk, Flickr Creative Commons