By Dr. Ken Broda Bahm:
Here’s a scenario that I’ve dealt with quite a bit recently. Counsel for plaintiff and defense both question a panel of prospective jurors, and in the process, we end up learning a good amount about the panelists’ experiences and views on the issues that might relate to the case. The individualized information we are getting provides a solid foundation for cause challenges and for the later exercise of peremptories. Then, when one member of the panel exits due to a hardship or a cause issue, another individual is pulled from the gallery and placed into their seat. The judge asks, “You have heard the questions,” asked over the last hour, or several hours. “Do you have any affirmative responses or anything to add on those topics?” Well, they haven’t been taking notes, and at least half the time, the response from the newcomer is a simple “Nope.” As the cause and hardship process continues, we then face the rich/poor information-gap of knowing quite a bit about the early panelists, but knowing next to nothing about the newcomers who are now being filed in.
That scenario, common in the California “Six-pack” method of jury selection, has the dual disadvantage of taking a very long time and, often leaving the advocates with critical gaps in information when it comes to making their strikes. Counsel generally has a chance to follow-up with the newly-added panelists, but often feels implied or explicit pressure to keep it short, or even pass on following up, in order to move things along. Still, I believe that the stakes in jury selection are so high that counsel should do whatever they can within the constraints of the court’s method in order to transform these mysteries into relatively-known individuals. If you have one or two critical issue-based questions for your case (e.g., injury or caretaking experience in a personal injury case, management experience and attitudes in an employment case), then I recommend re-asking those questions again to each newcomer, even if they are literally covered by the judge’s catch-all questions at the start. But, more generally, it is important to get the potential juror past the “Nothing to add” phase and get them talking. In this post, I’ll share ten good questions to ask as a catch-up during juror substitutions.
10 “Catch up” Questions for those Substituting Into Your Panel
1. What do you do for a living? How do you spend a typical day on that job?
2. As you listened to the questioning when you were in the gallery, did any thoughts or reactions pop into your head?
3. Was there a moment where you would have added something if you had been up here on the panel?
4. As you listened, did you find any of those questions particularly important? Or particularly unimportant?
5. Did any of the other panelists make any comments you agreed with?
6. Did anyone – other jurors or attorneys – say anything that you disagreed with?
7. If there was one thing that would be essential for us to know about you, what would that be?
8. Would you be looking forward to jury service, or dreading it? Why?
9. Based on what you’ve heard so far, do you think you would be a good juror for a case like this? Why or why not?
10. Is there anything we didn’t ask that you feel is important for us to know?
Naturally, these are general ice-breakers, and the best questions are going to be those that encourage a juror to open up and to share experiences and opinions that have some bearing on the issues they will decide on the case. Those are the discussions that carry the best chance of opening up an issue that you want to explore for cause, and that is the kind of information that can realistically and fairly justify a decision to strike a potential juror. Within the time constraints of jury selection, particularly when a “strike and replace” system like the California “six-pack” method is used, that high-quality discussion isn’t always possible. But, remembering that the composition of the jury is a vital step in the trial, attorneys should do what they can to make sure every potential juror is a known quantity.
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Other Posts on Voir Dire:
- Save the Strikes: ASTC’s Research-Based Case Against Prohibiting the Peremptories
- (Sometimes) Reinforce a Higher Threshold for Cause Challenges
- Voir Dire: Create Your Own ‘Candor Script’
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