Posted on: 9/5/2012
Melinda K. Bowen, Snow Christensen & Martineau
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In preparing for a recent trial, our trial team and opposing counsel agreed that, to make the most of voir dire, we would distribute jury questionnaires in advance of trial. After negotiating about various questions and then agreeing to the questionnaire's final form, a stipulated questionnaire was sent to the court clerk, who in turn sent the questionnaires to each prospective juror. About two weeks before trial, we received completed questionnaires from most of the potential jurors; only a few failed to respond. The process of reviewing each questionnaire seemed fairly uneventful until I reached the questionnaire completed by a juror whom I will call Juror X. Juror X refused to answer about 80% of the questions. Specifically, she refused to answer any questions requesting personal information and cited to her right to protect her privacy and security interests as the basis for her refusal. When reading her questionnaire, I first smiled to myself while wondering what Juror X would be like in person. But then, I began to wonder whether Juror X was being honest in her answers or whether she was intentionally trying to avoid jury duty.
The latter thought stemmed from recent stories illustrating the ways that jurors have used the questionnaire process to force counsel and the court to excuse them for cause. In one such case, a woman identified as Juror No. 799 disclosed severe racial prejudice on her jury questionnaire. When asked to "name three people she least admired," the woman answered, "African-Americans, Hispanics and Haitians." John Marzulli, Judge Gives "Juror No. 799" Indefinite Jury Duty After She Makes Racist Remarks on Questionnaire, N.Y. Daily News, April 6, 2011, http://articles.nydailynews.com/2011-04-06/local/29404820_1_jury-duty-basciano-vinny-gorgeous. Upon further probing by the judge, she explained, "You always hear about them in the news doing something." The Assistant U.S. Attorney on the case requested that the woman be dismissed for cause, and the motion was granted. It was unclear whether the woman was trying to use her answers to get out of jury service, but if that was her intent, her efforts backfired. The federal judge on the case, Judge Nicholas Garaufis, reprimanded the woman's answers as "an outrage" and then ordered Juror No. 799 to serve an indefinite term of jury service: "She's coming back [today], Thursday and Friday – and until the future, when I am ready to dismiss her."
Although the motives of Juror No. 799 in this story and the motives of Juror X in my case were not entirely clear, it is undisputed that citizens employ various means and methods to avoid serving on a jury. Some may be more drastic than others—think Liz Lemon dressing up as Princess Leia. Of the many ways that jurors could use to avoid their civic duty, jury questionnaires provide a unique opportunity for potential jurors to insert bias into their answers, even blatantly.
At the same time, however, jury questionnaires also provide a unique, and often critical, opportunity for counsel to learn more about potential jurors and to conduct a more probing voir dire. Through a questionnaire, counsel can discover each juror's background; experience with the legal system; case-related experiences; knowledge of and relationships with witnesses, parties, and attorneys; awareness of the case; and general opinions and attitudes. Although this information may come out in voir dire, jury questionnaires allow a juror to be more candid and allow attorneys to supplement voir dire with specific information. To make the best use of jury questionnaires, counsel should consider the following issues and how each issue affects the particular case and trial.
1. Understand your case and your jury pool.
Jury consultants generally counsel in favor of using jury questionnaires. See Thomas J. Hurney, Jr. & Randal H. Sellers, Picking Juries: Questionnaires and Beyond, 75 Def. Couns. J. 370, 371 (2008). But the first step with respect to jury questionnaires is to determine whether you should even try to use one in a given case. Counsel must ask questions such as: Are the costs of a jury questionnaire justified in the specific case? Are there case-specific biases that will be uncovered through a jury questionnaire? Or, on the other hand, is the case such that the important biases can be handled adequately through traditional voir dire?
Another important question is whether the jury questionnaire will uncover information that will be more helpful to plaintiff's counsel than it is to the defense. As one jury consultant has explained, counsel should consider assessing the percentage of a jury pool who are predisposed to find in favor of the defense.
If that percentage is very small, you may be better off without a questionnaire. If you discovered that 84% of a jury pool is likely to be predisposed toward your opponent, the plaintiff, then you could exercise your strikes at random and still have an almost 9 in 10 chance of having a plaintiff-oriented juror excused.
When – And When Not – To Use a Jury Questionnaire
In such a situation, the use of jury questionnaires may allow plaintiff's counsel to identify the small number of defense-oriented jurors and strike them.
2. Understand your judge.
It is also critical to understand whether and how your judge will utilize the questionnaires in conducting voir dire. Since the methods for conducting voir dire are usually within the discretion of the trial judge, each judge handles voir dire differently. Indeed, the Federal Rules of Civil Procedure give courts the following discretion: "The court may permit the parties or their attorneys to examine prospective jurors or may itself do so." Fed. R. Civ. P. 47(a). With this discretion, a trial court also has the discretion to determine if and how jury questionnaires will be used.
Many judges believe that questionnaires provide a unique opportunity to empanel an impartial jury and to expedite the voir dire process. Judge James G. Carr of the Northern District of Ohio has been quoted as stating, "A well-crafted case and a defendant-specific questionnaire are indispensable, along with attorney involvement in the voir dire process, to accomplishing that most basic of objectives—an unbiased and open-minded jury." See Linda Moreno, The Truth and Nothing But, 33 JUL Champion 20, 21 (2009). Other judges, however, do not share's Judge Carr's fondness for jury questionnaires. Some judges, and some jurisdictions, do not permit the use of jury questionnaires at all. See id. Others strongly oppose the use of jury questionnaires and may have to be persuaded that a jury questionnaire is justified in a given case.
If you feel that a jury questionnaire will be beneficial in a specific case, understand in advance where the particular judge stands on the issue. If you are faced with a court that balks at the use of jury questionnaires, you must "educate the court regarding the effectiveness of jury questionnaires through motions and argument." Id. at 22. The timing of these arguments is also important. Make the arguments early in pretrial discussions to avoid creating burdens for the judge's clerk and other personnel. See id.
Some additional questions about the judge must also be asked (before you determine whether you want to request a questionnaire). Can the questionnaires be sent to potential jurors in advance, or will jurors complete the questionnaires when they arrive at the courthouse? Will the judge allow the attorneys to ask follow-up voir dire questions to get additional information about specific answers? If so, will those follow-up questions be conducted in chambers or with the entire venire present? As in many other contexts, the judge's clerk can be your best friend in determining the answers to these questions.
3. Understand the purposes of jury questionnaires.
If the judge is on board with questionnaires, and questionnaires are a good idea for a specific case, jury questionnaires can serve two important purposes.
First, when creating a jury questionnaire, questionnaires provide a unique opportunity to plant some seeds about the case in advance of trial. Through an artful question on a jury questionnaire, attorneys can educate the jurors before opening statements are even given. This may be, and likely is, the reason that many judges do not allow counsel to use jury questionnaires. But where questionnaires are permitted, make the most of them. The questionnaire will convey information and may create a potential juror's first impression of the case. With this in mind, brainstorm and identify defense themes and critical issues. Include questions that uncover biases about the specific facts of the case but, at the same time, highlight important defense themes.
Although jury questionnaires serve to convey information to the jury, they primarily serve to gather information. "[T]he primary purpose of voir dire is to gather information from the venire so that the court and the attorneys can adequately address challenges for cause and peremptory strikes." Joseph A. Colquitt, Using Jury Questionnaires; (Ab)using Jurors, 40 Conn. L. Rev. 1, 9 (2007). This is true for questionnaires as well.
If you are fortunate enough to receive responses to jury questionnaires in advance of trial, review the responses in detail. Make a list of jurors who could possibly be challenged for cause. Then formulate additional voir dire questions that highlight the biases of the jurors that you want to strike. At the same time, identify voir dire questions to rehabilitate any jurors that plaintiff's counsel may want to strike. As much as possible, use the questionnaires to force plaintiff's counsel to use their peremptory challenges while preserving yours.
In addition to a list of jurors who may be challenged for cause, make a list of jurors who may be the subject of peremptory challenges. Glean as much information from the questionnaire responses as possible, and then identify possible follow-up questions to uncover additional information to be used in deciding where to best apply your valuable peremptory challenges.
As these tips illustrate, jury questionnaires should not be used in place of voir dire, but only as a means to make voir dire more meaningful.
[W]hile a questionnaire may offer the opportunity to ask questions that would never be posed in open court, there is a danger when it becomes a substitute for posing questions in open court. Often the judge will permit less attorney-conducted voir dire because of the use of a questionnaire. A questionnaire can never give the full flavor of the intensity of a juror's feelings about an issue, the salience of the issue to the juror, and his or her knowledge about it.
When – And When Not – To Use a Jury Questionnaire
With an understanding of the above principles, jury questionnaires can be a salient means to empanel an unbiased jury, and perhaps even to eliminate jurors that will be damaging to your case. Of course, jury questionnaires may allow plaintiff's counsel to do the same and eliminate individuals that you may want in the jury box. But as a couple of fellow defense attorneys have explained:
Although all trial attorneys are fearful of losing good defense jurors, that fear pales in comparison to the dread of placing the "stealth" plaintiff's juror in the box. Consequently, our default position in the realm of jury selection is that more information about prospective jurors, both good and bad, is always better than less information. Overall, it appears the use of questionnaires can be a valuable part of the process of voir dire in identifying jurors with attitudes unfavorable to the defense. The juror questionnaire is certainly not a panacea for all the woes associated with jury selection, but it is very often a useful tool for uncovering information, particularly when the subject to be addressed is personal and potentially embarrassing to members of the panel.
Thomas J. Hurney, Jr. & Randal H. Sellers, Picking Juries: Questionnaires and Beyond, 75 Def. Couns. J. 370, 377 (2008).
Defense counsel should seriously consider the use of jury questionnaires as a tool to supplement voir dire. Despite potential pitfalls, valuable information can be conveyed and received. If used in the right case in the right way, jury questionnaires can lead to effective voir dire and the selection of a favorable jury.
Melinda Bowen is an associate at Snow, Christensen & Martineau in Salt Lake City, Utah. Ms. Bowen's practice focuses on commercial litigation and professional liability defense. Outside of her legal practice, Ms. Bowen enjoys traveling, running, and spending time with her family.