Most lawyers agree that a case is won or lost during the jury selection process. Unfortunately, the jury panel composition is unpredictable. Further, some things are simply out of the lawyer’s control, like the amount of time a Judge allows for jury selection, otherwise known as voir dire. Efficient and intelligent use of time and resources during this portion of the case will always provide a positive return. The more eyes and ears paying attention during voir dire the better. Jury consultants can be expensive and should be considered on a case by case basis.
I. Jury Lists – Some courts will allow the lawyers to preview a list of jurors well in advance of voir dire. The normal practice however, is to provide the lawyers with a list an hour or two before starting. It is not possible to know everything about a potential juror based on a half-page or full-page questionnaire, so attorneys should be looking at key indicators that may hurt or help the case. Perhaps someone on the jury panel works in the insurance industry or has a special relationship with the defendant or their attorney. The purpose of voir dire should be to remove jurors from the panel that will be harmful to the case. To the extent the lawyer has hired a jury consultant, he or she should already have identified certain factors to flag when considering who will serve on the jury and who to strike. When requesting the number of individuals needed for a jury panel, consider the venue, facts of the case, and whether the case is pending in county or district court. Busted jury panels are less likely in first-party cases, so a pool of 50 jurors is typically more than enough.
II. Wasted Time – There are different theories on how much time an attorney should take on voir dire. While more time allows for more questions, the quality of the questions is what really matters. Lawyers should focus on eliminating the juror who may be predisposed to siding with the defendant. Thus, seeking opinions from jurors on specific issues harmful to your case is key to determining who those jurors may be. Lawyers should focus on the first 30-35 jurors on a district court case, as these are the most likely to land on the jury, and if time allows, try to speak with every juror. It is important to be conscious, but keep in mind that if counsel does not speak to at least the first 25 jurors during voir dire, he or she may wind up with a juror whose thoughts and ideas are completely unknown.
III. Using Your Strikes – After identifying those jurors to strike for cause, attention should be paid to those who seem to be on the fence. If counsel could not get a potentially negative juror to reveal his or her prejudice on the case during the general voir dire, an individual voir dire allows for the opportunity to ask more detailed questions. Each Judge will have his own way of handling these situations and the lawyer needs to know before starting what the Judge’s practices are in his court. Once the individual voir dire has addressed any doubt about the jury panel, the lawyer should decide which jurors should be stricken. Keep in mind that to the extent the lawyer is unsure about some jurors, the opposing lawyer may be equally unsure. This is particularly true on cases where neither side was able to elicit a fruitful discussion from the first 30 jurors. When using strikes, the lawyer should consider who the opposing lawyer will want to keep and try to eliminate those jurors first. Thereafter, the lawyer should have an open discussion with the client or co-counsel and make the most educated strikes possible based on the information known.