Jury selection has always presented a problem to trial lawyers. Determining the right questions and how to frame them for the issues in the case is a difficult challenge. Under our modern procedure, It has become even more challenging due to the judicially imposed unreasonably short  time limits and the frequent court-imposed process of remote jury selection where the lawyer and the jurors aren’t even in the same room. There is an enormous number of possible questions that might be asked, and no one is right for all cases. However, here are some examples that might be appropriate in some cases as well as a few examples from attorney Gerry Spence’s cases.

GENERAL QUESTIONS

The following are examples of questions that are generally appropriate in many cases. The are  not focused on a specific issue, but rather regarding a general state of mind:

We need absolute honesty in this case. That includes being willing to admit\ some difficulty or  discomfort sitting as a juror in this case. Or admitting knowledge or beliefs  that make it hard for you to serve in this particular case. Remember, admitting a problem with serving is not a failure, Honesty is what the process is designed for. There are no right or wrong answers to the questions. Only honest answers. We need to be thoughtful, complete and candid.

What have you heard or read about this case or cases with similar circumstances. Please share what you have heard, know or believe?

Have you made any public statements that relate to the issues in this case. on social media like Facebook or TikTok or social media? Please describe them.

How would you feel about being a juror in this case?

Would you be uncomfortable with serving for any reason?

We have been talking for a while. As the time passed, had you reconsidered your answers or has  anything else come to mind?

 Is there anything we have not asked that would bear on your ability to be fair and impartial in this case?

Is there anything else that’s important for us to know?

What are your feelings about being a juror in this case?

Do you think you would be a good juror in this case? Why or why not?

GENERAL PSYCHOLOGICALLY ORIENTED QUESTIONS

If you were to put your finger on one thing that makes you especially qualified to sit in this case what would be?

What is the most important thing you can teach a child?

What do you enjoy doing most in your spare time? What makes your life enjoyable?

What makes you good at what you do either at work or as a parent or at anything else you do?

What you tell me what radio news programs you find are the most accurate and reliable thought was most informative?

Which TV news station do you rely upon for accurate news from?

QUESTIONS RELATING TO DAMAGES

Here are a few questions that are focused on the damages in the case. They are designed to prepare the jurors for the money demand and find those jurors who have difficulty with awarding damages:

I’d like your reaction to the fact our experts will tell you that the past bills for treatment and lost wages plus the bills for his care and treatment over his remaining life is some _____dollars. After you review all the evidence if find that is the total for the costs would you have any difficulty in including it in the verdict if you found in his Favor?

In addition to the economic bills past and future, this case also involves non-economic damages for (1) disability (2) mental and physical suffering and (3) loss of enjoyment of life. After you review the evidence, if you find he has suffered these kinds of injuries would you have any difficulty in including the damages in the verdict should you find in his Favor?

Some people feel juries should not provide money for anything other than the bills and others feel there should be a limit on jury verdicts. Other people believe a jury should provide full and complete justice for all harm done, both the bills and the injuries. Which way do you lean, even if just a little?

At the end of the case, I will give you my evaluation what I believe is fair and reasonable appraisal of the verdict in this case as well as the reasons. But you have the total power to decide this issue. Suppose at the end of the case you find a fair and reasonable verdict would be $______.  How would you feel about exercising your power to sign a verdict for that amount of money?

Can you imagine that it would be possible for you to feel proud and have a really good feeling about a verdict in that amount now and for the rest of your life?

What would be your biggest concern to being on a jury that signed a verdict of that amount?

CONCLUDING QUESTIONS

At the end of the questions focused on issues in the case, it is a good idea, if time allows, to ask some follow-up or concluding questions. Here are some examples:

How do you feel about taking on the job of being a juror in this case?

What else would you like to know about being a juror here?

What else should we know about your being a juror?

Given what you know about yourself is there anything you can think of that we haven’t talked about that would make it even a little bit difficult to be a juror in this case?

GERRY SPENCE VOIR DIRE EXAMPLES

Wyoming trial lawyer Gerry Spence created his Trial College and he invited me to be a lecturer. For over twenty years I went to the College to teach. Here are some ideas Spence taught and used in jury selection that are worth considering in the right case:

Creating “tribe” or Bond with the Jury

We want to belong to something or someone. We have a tribal need to belong to a group, fan club or a team. It is a survival need that we belong to a group  or tribe. In jury selection jurors have the same kind of need and the same kind of reaction to being excluded. The lawyer’s job is to create a bond between the jurors and become a member of that group with common beliefs and interests. Here are a few examples Gerry used.

“You don’t know me or defense counsel. You don’t know my client, Harry. And you don’t know each other. Nor do you know the judge. We are all strangers to each other. Yet, we all have the duty to do the right and just thing in this case. You have the responsibility and the enormous power to determine what is right in this case. I. I have the responsibility to represent my clients to the best of my ability. Even though ’ve been a lawyer a long time, I find my job to be a little frightening. I’m wondering if you find your job a little bit frightening as well. Do we have that in common with each other?

So, it’s a matter of trust, isn’t it? We have to trust each other to do the right thing in this case. Because we don’t know each other, trust is a problem for us. How do you feel about that?”

The Process of Excusing a Juror

What would you do if you were me and you had a juror who honestly said, “I don’t like malpractice lawsuits”? What would you do about keeping or excusing the juror if our roles were reversed?

Given what we have been talking about, do you think it would be proper for me to excuse you? You want me to do the right thing don’t you?

I don’t think it would be fair to you for me to ask you to be on this  jury because you  would be under a whole  lot of pressure. Would you understand if you were excused from serving on this particular jury?

You know, I could be wrong about you and maybe you would be fair. Can I trust that?

Dealing with your case negative issues

Spence has taught that for every problem or danger point in the case the lawyer should become “the Devil’s advocate” Raise the issue and argue from the negative viewpoint. Identify the danger points in your case. Arrange each issue in order priority and talk to the jury about them as well as the concern they present:

You know, I don’t like malpractice cases like this one. I depend upon doctors. They work very hard, and they do a lot of good for many people. I feel uncomfortable when I bring a lawsuit like this. How many of you would the reluctant to sue a doctor? (He raises his own hand) I agree with you. I feel we should embrace protecting doctors. What do you think about that?

However, do you think that doctors can negligently injure a patient? Cause harm unnecessarily. When they do, should we give a special free pass, or should we hear the evidence and if they did make sure they are held accountable just like you and me?

It’d hard not to resent a convicted felon asking a jury for a verdict because of injuries he suffered after he was in prison isn’t it? Should we reward such a person even if they were negligently injured? Aren’t that granting favors to a wrongdoer? How do you feel about that?

The fact is, Joe has told lies. In fact, he is a convicted liar  When someone has been shown to be a liar about something important, it’s hard to believe them when they are claiming damages for injuries isn’t it?. Why should we even listen to him about being negligently injured? Joe has lied, but hasn’t everyone lied about something in their lives? I admit I have. So, are we going to deny deserved justice to someone because they once told a lie?

CONCLUSION

These ideas and suggestions do not fit every case and every trial lawyer’s style, but they should offer a basis for developing your own case issues on these subjects. They are a guide for you to consider.