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Six Essential Areas of Questioning in Jury Selection

By Karen Fleming-Ginn, Ph.D.

It does not always hold true that a well-planned and comprehensive voir dire is the best voir dire. A certain amount of planning is crucial, but sometimes a judge will so substantially limit voir dire that only a handful of questions can be asked. Depending on your case, this may be a stroke of luck. More often, however, limiting voir dire will be seen as a curse and the jurors will be figuratively thought of as “mystery jurors” for the course of the trial. In situations where it is necessary to ask only a few targeted questions, it is essential that these be well-planned and well-asked. Granted, the cause of action will determine the customized questions, but following are some “must ask” questions for most, if not all, civil cases.

In most civil cases, the essential areas of questioning center around the following:

1) Experience, attitudes and beliefs about the court, lawyers, and the legal system This is significant because most people have some experience in these areas that have been instrumental in shaping biases, attitudes or beliefs that could impact their feelings about the case and, ultimately, their verdict.

(2) Business and financial savvy The way an individual handles money or conceptualizes monetary exchanges can substantially influence how they look at damage awards. Sophistication in the finance world can impact a juror in ways that seem to come out of “left field.” There is no way to know how this information will play out, but having an understanding of the roots and the depths of their knowledge about financial concepts will result in much better insight. For instance, there are many people who believe that financially savvy jurors who work for large corporations will overwhelmingly vote defense in civil personal injury cases. While this may be true in matters of probability, a juror knowledgeable about financial planning may be much more willing to award huge damages in a case involving long-term care, if they initially find in favor of the plaintiff, while a non-savvy juror will believe that the final number has grown much too large. In other words, this knowledge can cause a juror to go either way when it comes to damages, but it is essential to be aware that this may become a factor in their verdict.

(3) Emotionality as a personality structure Even though jurors are instructed not to base their verdict on “Sympathy, passion, or prejudice,” a juror who responds emotionally will see the case through a different lens than one who does not. Some people are able to identify emotional filters, while others are not. An example of a statement from a person who can identify their emotional response but can compartmentalize it would be: “I really felt sorry for the plaintiff and I believe she deserves to be compensated ... But, the instructions did not support a verdict in favor of the plaintiff, so I voted for the defense.”

(4) Internal vs. external locus of control Ascertaining the level of control jurors feels they have over their life can be critical information in trying to gauge how they will look at the issues in a civil case. Religiosity can play a factor here: “It was a matter of fate;” “There must have been a good reason that it turned out that way;” or “I’ll just have to pray about this and see what happens.” Religiosity is just one example of this cognitive framework. Other jurors may be very religious in matters of existentiality, but believe that we do have a great deal of control over our day-to-day world.

(5) Damages as a healer This ties in closely with locus of control, but it includes the concept of “deservedness.” In other words, if something egregious happened to a plaintiff and another party is liable, how much does the plaintiff deserve? And, how much of this deservedness has to do with the plaintiff because of the injuries, and how much does the award have to do with a sense of wanting to punish the defendant? (This is not a matter of punitive damages, but a subtle psychological, often unconscious intention to give the plaintiff something by taking something away from the defendant.). Some jurors believe that money should not be the unit of exchange if one is wronged by another. Even if they find the defendant liable, they do not believe that compensation will change the situation. This is seen most commonly in damages for pain and suffering, but can also impact general damages. I recently gave the following example at a training session: If a child falls down and screams due to a badly skinned knee, why give them an ice cream cone in hopes that it will lessen their pain? Some jurors see damage awards in this way and this information needs to be gleaned before assuming that if they vote in your favor in liability, they will do the same when it comes to damages.

(6) Issues of personal responsibility This is the classic defense stance in a civil case: Every behavior is risky and if you are willing to take the risk, you are responsible. This resembles the Libertarian philosophy but can extend so far as to even getting in a car and driving out the driveway of your home. A juror with this mindset will be strongly in favor of tort reform and will believe that most court cases should not ever go to court. This juror will see every case as a “due diligence” case regardless of topic. A common phrase this juror uttered in deliberations is: “This stuff happens all the time. It’s the risk you take.” These statements will typically hold true in a medical malpractice case, vehicle injury, product liability, wrongful termination, etc.

Excerpted from the article, "Pattern Voir Dire Questions" originally publishied in The Jury Expert (Vol 17, Number 1). Karen Fleming-Ginn is a principal at Verdix Jury Consulting, Inc., in Walnut Creek, California.