Using Voir Dire to Secure a Winning Verdict

By: Wylie Aitken

I. Introduction

The modern day trial lawyer finds he or herself in a very interesting, difficult and serious dilemma.  More and more inroads are being made to substantively and procedurally limit a trial lawyer’s role in voir dire, while at the same time more and more resources are devoted to manipulating the public against the civil justice system.  Therefore, the trial lawyer’s ability to select a fair and impartial jury is increasingly limited even though the need for full and robust jury selection has never been greater.

Much has been written about voir dire, or jury selection.  Articles on this topic generally follow one of three approaches, or some combination thereof.  One category of articles focus on the substantive law governing jury selection, as well as the procedures established by case law and statute.  A second category attempts to analyze community attitudes pertaining to jury service itself and to divine public perception and attitudes regarding issues which commonly are dealt with in jury trials.  The third category focuses on the techniques to be used when actually selecting a jury.  This particular article will primarily focus on the latter two topics.  In an era of misguided and manipulative “tort reform” and the alleged “litigation crisis”, to say nothing of the Proposition 30 campaign, proper voir dire becomes even more important in the everyday trial.  Indeed, jury selection may be the only effective counter that the plaintiff’s lawyer has to the “spin doctoring” engineered by the insurance industry and others and their allies in the media.

II. The Jury Selection Process

In California, “counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause.”  California Code of Civil Procedure Section 222.5.  To that end, “the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case.”  Id.  While the length of voir dire examination is not set, “[s]pecific unreasonable or arbitrary time limits shall not be imposed.” Id.  See also, California Rules of Court, Rule 228, which states that the length of voir dire “shall be within reasonable limits prescribed by the trial judge in the judge’s sound discretion.”  Unfortunately, the law in California is often given judicial “lip service” and is honored more in its breaking.

III. Common “Myths” Regarding Jury Selection

For a trial lawyer to preserve the right to select a fair and impartial trial in today’s environment, the lawyer must deal with and directly confront some common myths.

MYTH #1–Jury Selection Prevents Fair Trials:

One common myth that seems to predominate in much of the legal “establishment” is that voir dire in the hands of a competent trial lawyer does not in fact accomplish justice but merely allows a clever practitioner to precondition a jury pool to accept a preordained result.  Nothing in fact could be farther from the truth.  We primarily practice in what is commonly perceived to be one of the most, if not the most, conservative area in the United States–Orange County, California.  While attempting to limit voir dire, we have heard a number of judges in our area express the notion that through voir dire plaintiff’s lawyers are merely attempting to manipulate the jury such that they will award millions of dollars to the plaintiff without regard to the merits.  Quite frankly, and with all due respect, it is absurd to suggest that an Orange County jury would ever or could ever by biased in favor of the plaintiff.  If we are skillful (or perhaps merely lucky) we might possibly be able to select a jury that is willing to be fair to our clients, in other words create an “even playing field”, but only if we given the proper opportunity to conduct a rational and reasonable voir dire.

MYTH #2– Thorough Jury Selection Is Not Essential To A Fair Outcome.

A second “myth” we have noted is the attitude that a mediocre result which favors no one, or equally punishes both sides, is somehow analogous to “justice”.  Such an attitude is manifested in what we often describe in lectures as the “Irish System”.  A number of years ago, the authors of this article traveled to Ireland.  While in Dublin, we took the opportunity to visit the Five Courts, which is the historical courthouse of Dublin.  As Irish luck would have it, we were able to observe the opening stages of a personal injury trial.  In a method that would have pleased many current members of the trial bench, jury selection took all of about fifteen minutes.  There was no voir dire of jurors, neither by the judge and certainly not by counsel.  Each of the attorneys (or, more accurately, barristers) were merely given a list of the names and addresses of the prospective jurors and, with little or no further information, selected the twelve jurors who were going to hear the case.

Puzzled by the procedure, we approached the plaintiff’s barrister at the first break.  We inquired why no questions were put to the jury, and were informed that juror questioning was prohibited by law.  We asked the barrister further how he felt a fair jury could be selected with such limited information.  Even in the most restrictive jurisdictions in the United States, one would normally at least be apprised of the jurors occupations, their spouse’s occupation and other minimal background information.  We further asked the barrister if it was not possible that certain jurors he had just selected on behalf of the plaintiff might be claims adjustors or supervisors for the local insurance companies or other like individuals who clearly would not have an open mind on this type of matter.

The barrister, in his Irish brogue, promptly acknowledged that it was certainly possible that defense oriented jurors were selected; however, it was equally possible that the jurors selected were individuals who were totally and exclusively predisposed to award for the plaintiff.  He also promptly assured us that justice in the overall system ultimately prevailed since he, over the course of his career, had lost many cases he should have won, but had won many cases he should have lost.  Therefore, it all “evened out” in the long run.

That, of course, may be true for the system and for the lawyers, but it certainly was not true for the individual litigants which are at the heart of the system and the reason the system exists.  It could not be any comfort to those plaintiffs whose meritorious claims were unfairly rejected that a later innocent defendant was going to be socked with a large damages award on somebody else’s case.  Unfortunately, we have found this attitude all to prevalent in this country, where people confuse a system that is equally unfair with a system that is truly just.

MYTH #3–The Judge Is The Solution.

A third “myth” we often encounter is that the trial judge should conduct voir dire (as opposed to putting reasonable controls in place).    The argument is not premised necessarily on the jurist’s ability to effectively pick a jury, but on the judge’s “objective” position in the litigation.  The faulty logic is that an unbiased examiner (assuming such a creature exists) will by his or her very nature select an unbiased jury.  Though technique without ideals is certainly to be discouraged, ideals with no technique is equally dangerous.  We are reminded of the story told by a present sitting federal judge who, prior to his elevation, was an outstanding trial lawyer.  Shortly after completing one of the last trials he handled as an attorney, he ran into the trial judge at a local bar function.  This trial judge complained that the opposing lawyer had conducted what this judge perceived to be the worst voir dire he had ever witnessed.  The now sitting federal judge concurred that it was a very poor performance and, in fact, it was almost as bad as the very best voir dire he had ever heard conducted by a trial judge.

In our opinion, and as the above story illustrates, it is neither prudent nor just to entrust jury selection solely to the trial judge.  Depending on the circumstances, the trial judge may neither have the disposition nor the background to ferret our biased jurors.  In all cases, the trial judge will have not a strong grip on the factual nuances of the particular case about to be tried, at least in comparison with trial counsel who have lived with the matter for months or years.  This is not to say that judicial voir dire is not helpful; on the contrary, the authority that the trial judge commands before the jury can be invaluable in promoting truthful responses and inquiring into sensitive topics.  Our point is that any system that relies solely on the trial judge to conduct jury selection is doomed to be inadequate, and forces the trial lawyer to rely on the “luck of the Irish”.  Least it be perceived that the author is ethnically insensitive to the Irish, I plead to my Catholic heritage.

Myth #4 – Jury Selection Is Too Time Consuming.

This “myth” is not really worthy of response since justice always consumes some time.  A trial lawyer, however, must be prepared to deal with all of these myths in order to secure his or her client’s right to jury selection.

IV. The “Legal and Philosophical” Approach To Jury Selection.

Most cases go to trial because the opposing lawyers and their clients see the same set of facts differently.  We have found that this observation accurately describes some of the major trials we have conducted over the past few years.  The question is then, how can one identify the prospective jurors who are amenable to the trial lawyer’s “philosophy” of the case and willing to follow the law and facts which support it?

First, you must have faith in your own position and a strong faith that an objective juror would accept that position.  In other words, if you do not yourself share the commitment and understand the philosophy behind the reason you should prevail, you will be a poor salesman in conveying the message and a poor buyer in selecting the appropriate audience to receive that message.  To illustrate our point, we will draw upon the facts of a recent case we completed.

The facts were as follows:  The plaintiff, a 20 year-old male college student and the defendant, a female, also age 20, who were both occupants in a vehicle that was involved in a broadside collision.  Prior to the collision, they had been drinking beer that they had shoplifted from a liquor store, and later blood tests indicated that they were both legally intoxicated at the time the collision occurred.  The plaintiff and the defendant were travelling in plaintiff’s Chevrolet Blazer when it ran a red light and was hit by a car proceeding through the intersection on a green light.  Plaintiff was partially ejected from the passenger side window, and his head and shoulders became pinned between the ground and Blazer when the Blazer rolled over onto its passenger side.

Neither defendant nor plaintiff recalled the details of the accident itself.  While initially denying any knowledge who was driving when first questioned by the investigating police officers, the defendant claimed that the plaintiff was the driver when she was threatened with arrest.  Defendant later claimed that she and plaintiff were on their way back from a failed cocaine purchase when the accident occurred.  As a result of his injuries, plaintiff had no recollection of these events, and he and his family initially accepted the plaintiff’s role as the driver.

The evidence indicated that plaintiff had not been wearing his seat belt at the time of the collision, which was a conceded point at trial.  Plaintiff partially severed his spinal cord at C4-5, and is a quadriplegic with on-going bladder infections and an inability to care for himself.  

The hotly contested factual issue in the trial was the identity of the driver.  If plaintiff’s factual presentation was accepted, he would be identified as the passenger in the vehicle that ran the red light.  Now legally, if the badly injured plaintiff was a passenger in his own vehicle at the time the driver ran the red light, plaintiff would still be entitled to a substantial recovery despite his significant comparative negligence.  California is a “pure” comparative negligence jurisdiction; in other words, plaintiff would be entitled to collect the percentage of his overall injuries caused by the defendant’s negligence, even if the plaintiff was found to bear a greater portion of the blame that the defendant.  Plaintiff’s burden was increased by the fact that the plaintiff suffered a memory loss which began shortly after stealing the beer and could not testify who was driving the vehicle, and that all of the plaintiff’s evidence was circumstantial.

The deeper,  “philosophical” and legal issue concerned the concept of comparative negligence.  While in preparation for this particular trial, we ran this scenario by an informal focus group comprised of our friends, relatives and colleagues.  Although the main evidentiary point concerned the identity of the driver, it became very clear in our discussions that there was a real “philosophical” reluctance in many people to award the plaintiff damages no matter who was driving.  Looking at it from the plaintiff’s best case scenario, he was injured as a result of an acquaintance’s negligent driving after he negligently entrusted the vehicle to her, after both of them engaged in underage drinking, and after they stole the beer they drank.  The defendant testified that at the plaintiff’s insistence solely they went to obtain cocaine that evening.  The plaintiff’s crippling injuries were a result in part of his failure to use a seatbelt.  Indeed, the plaintiff actively participated in every negligent act leading up to the accident, short of physically driving the vehicle through the red light.  In light of this factual scenario, many of our informal focus group stated that they would not award plaintiff damages no matter who was the driver.  In a trial context, the jury could achieve this result by finding that the plaintiff was overwhelming the cause of his own injuries (by finding him 95% comparatively negligent, or the like), or holding that the defendant’s negligence in running the red light was not a legal cause of his injury.  Of course, a jury so inclined would give no credit to any of plaintiff’s evidence that he was indeed the passenger.

The factors we had to deal with were numerous, but the most important included:  friend vs. friend, female driving vehicle owned by a male, the theft of the alcohol, underage drinking, and the attempted cocaine purchase.  Certain issues which are always present in a plaintiff’s suit which were particularly troubling under these facts included the cost of insurance, attitudes towards lawsuits and the importance of individual responsibility.  Armed with our own common sense and knowledge gained from our informal focus groups, we knew that we had to find jurors who would “philosophically” accept that the burden of proof in a civil case, jurors who would apply the concept of comparative negligence to such emotional facts, and jurors who would accept plaintiff’s circumstantial evidence regarding who was driving despite the plaintiff’s inability to testify who was driving the vehicle.

From a purely legal point of view, if in fact the jury were to objectively conclude that the evidence preponderated on behalf of the paralyzed plaintiff, he would be entitled to a substantial award.   But what is the real world point of view?  That was the essence of the “philosophy” litigated and that is the essence of what the trial lawyer for that young boy should take into the courtroom, a strong commitment and belief in the fairness in what you are seeking and the ability to make that message clear, understandable and palatable to a juror’s sense of justice.  This story is being repeated in less dramatic fashion in courtrooms throughout the entire United States.

On the board placed before the jury, in addition to all of the background information normally sought, the judge placed what he perceived to be certain key factors within the parameters of the facts of the case.  These factors included:  LAWSUITS, QUADRIPLEGIA, DUI (“driving under the influence”), AUTO ACCIDENT, UNDERAGE DRINKING, COCAINE.  Ultimately, the judge allowed us to create a corollary column listing:  “YOUTH”, “ONE NIGHT”, “COLLEGE KIDS”, “LOSS OF MEMORY”, “SHARED RESPONSIBILITY”.  (Unfortunately we weren’t able to talk the judge into letting us put up the phrase “LET HE WHO IS WITHOUT SIN CAST THE FIRST STONE”, although that was clearly one of the “philosophies” of the case.

Now what do these key phrases tell us about this case, how to handle it and how to accomplish a favorable result consistent with the law?  As you recall our jury selection was set against a background wherein friends and fellow trial lawyers were telling us that certain individuals would not buy comparative negligence even if justified, and would outright refuse to bring in a plaintiff’s verdict.  From our standpoint, we felt we had to help this jury understand that much of the perceived bad conduct was singular and limited and conduct that many of them had engaged in when they were young (excluding cocaine).  We had to be allowed to ask the jury whether they had done anything that they had regretted between the years of eighteen to twenty-one, and whether they themselves had ever engaged in the consumption of alcohol before they were not legally able to do so.  We had to persuade them that to understand and (to some degree) forgive a singular evening of indiscretion was not to condone such conduct or to somehow reject what they then perceived to be their current strong value system.

In order to accomplish such a result it was obvious that we needed parents on the jury, parents who had raised children of their own, parents who remembered when they were children and young adults.  We wanted a smart jury, (frankly I think you always want a smart jury,) and we wanted a primarily female jury.  Of course, we would want to stay away from other types of jurors, such as engineers, who often fit the role of good parents, but tend to demand a higher burden of proof than the law requires, and a higher burden that could be met in this factual situation.

We quickly agreed with all the jurors that drug use and underage drinking was illegal and wrong, and in no way did we condone it, particularly our client’s parents and ultimately the client himself.  The discussion on these issues, however, allowed the jury to agree that they would look beyond the unsavory aspects of this matter and concentrate on other legally relevant issues–particularly who was driving the car.  Indeed, by the time the trial began, we felt that the drug and alcohol issues had been so thoroughly discussed at the voir dire stage that the shock value had been dissipated and the jury was less interested in the defense’s efforts to highlight, subtly or otherwise, these factors during the trial.

Our “counter-headlines” enabled us to discuss many of the same issues, but on our terms.  YOUTH allowed us to explore the fact that many of us are guilty of youthful indiscretions which are of a temporary and singular nature.  We deliberately avoided the use of the word “immaturity” because that term connotes “fault” and is not merely reflective of age.  ONE NIGHT re-emphasized the theme of a singular act on a singular evening. COLLEGE KIDS had the same effect, as well as emphasizing the fact that we were talking about a plaintiff who could have been the child of any of the highly educated potential jurors from the upscale communities of Orange County.  LOSS OF MEMORY was to let the jury know at the outset that we were at a disadvantage in that our client had no memory of the hours before the incident and could not defend himself against the defendant’s version of what occurred during a major part of the evening.

The term SHARED RESPONSIBILITY involved the concept of comparative negligence, and in fact was the KEY to the case.  In a sense, “shared responsibility” is the other side of the “comparative negligence” coin.  Our ability to define and advance this concept was probably the single most important factor in the trial.  Comparative negligence only points out that you were at fault and someone else may also be at fault.  People in today’s society, however, have been conditioned to demand “responsibility”.  SHARED RESPONSIBILITY capsulized the concept that both defendant and plaintiff bore a percentage share of blame for plaintiff’s injuries, and liability for damages should be assessed accordingly.  Through the use of this phrase, we were able at the very outset to acknowledge that the plaintiff was willing and able (and indeed, anxious) to accept his percentage of blame for the evening’s activities.  From the outset of jury selection, we emphasized that we were not running away from plaintiff’s responsibility.  We even had the plaintiff testify that he recognized that he was at fault, and to a large degree the events of the evening were his fault and that he accepted full responsibility for that conduct.  Much to our surprise (well not really), and to the surprise of the trial judge, the defense attorney objected to our client’s admission of responsibility.  Though there was no legal basis for the objection, clearly the attorney understood that this acceptance of responsibility undercut strongly his “take nothing” attitude.  By accepting the obvious (i.e., plaintiff’s own fault), we believed we gained credibility with the jury that compared favorably with the “we accept no blame” position of the defendant.

What did we then learn before first exercising our first preemptory challenge after this free, open and lively discussion?  We learned much and such knowledge was absolutely essential to giving our client any chance, and I emphasize any chance, of receiving a verdict.

Ultimately the jury after a lengthy and hotly contested trial (yes and sometimes bitter but fair) concluded that the young man, the plaintiff, was in fact the passenger in the vehicle and allocated responsibility equally between the two parties enabling the young man to recover 50% of all his damages, both special and general.

V. Conclusion

To borrow a popular and over used term, what is the “message” of this article?  It is very simple.  Though times change, technology expands and the United States is on the edge of a new millennium, people remain fundamentally fair.  They remain human.  Despite onslaughts of advertising, the extraneous outside influences that push special interest agendas, or that push procedure over substance to promote ill-conceived notions of efficiency, jurors will and continue to produce primarily just and fair results.  But only if trial counsel, counsel on both sides with a fair referee (a judge) are allowed to “engage” the prospective jurors.  Any case that should be won can be won, even in these times, but only under a system that appreciates “individual” justice has judges who appreciate the importance of the system, and realize that justice begins and all too often ends with jury selection.

Contact Aitken * Aitken * Cohn today to learn more.