Jury Selection in Product Liability Cases

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Know Your Juror. Trial attorneys are confronting a jury pool today that is much more interested in and aware of civil litigation, lawsuits, and jury selection. Litigation is newsworthy. A brief look at any major newspaper, as well as publications oriented toward business, entertainment, sports and science, shows that legal issues and litigation are topics of great interest to American society.

As few as five or ten years ago, the jury selection process remained a mystery for most citizens. At most, 10 to 20 percent of the jury pool had ever participated as a juror in any type of trial. Further, participation in a trial did not mean that jurors necessarily understood challenges for cause, peremptory challenges, or the rules governing voir dire. While the juror selection process still remains somewhat of a mystery, with all of the media publicity surrounding certain trials, there are considerably more people with strong interest and opinions about the process.

However, the typical jury pool consists of an overwhelming number of people who are facing greater demands on their time from work and family. Those time pressures decrease their willingness to serve as jurors. If selected, these impatient jurors share little tolerance for unnecessary delays in a trial. They become irritated if attorneys cannot seem to ask a question correctly, if they are redundant, or if they appear to be disorganized.

As an example of their impatience, in a recent trial in Texas, several jurors stated somewhat jokingly that the day and one half they had spent in jury selection constituted mental distress, and they wanted to know where they could file a claim.

How do these developments affect the trial attorney? The main impact is that jury selection has gotten more complicated. There is more “noise” in the process caused by publicity and the pressures jurors feel to get on with their lives. This “social noise” can make it more difficult for attorneys to form an opinion about jurors’ suitability. Jury selection is often rushed without enough time allowed for a thoughtful voir dire.

Guidelines for Handling Jury Selection in Product Liability Litigation

Extensive research and observations of hundreds of jury selections suggest the following guidelines:

Juror questionnaires should be used whenever possible. They represent one way for a trial attorney to cut through barriers created by the courtroom setting and allow for the determination of juror attitudes on critical issues.

Cause challenges must be aggressively pursued. In camera or chambers voir dire is extremely helpful for cases involving highly sensitive or personal issues. Jurors are more candid in a more private setting. This procedure can and is often handled while the other jurors have been dismissed for a break.

Tackle the tough issues in voir dire and in juror questionnaires. Attorneys often avoid asking the most critical jury selection questions because of concerns about appearing insensitive to jurors. Our view is to ask the tough questions and get the best jury.

Keep a good pace and avoid organizational housekeeping delays. Jurors do not appreciate delays.

Greater attention needs to be paid to the selection of alternate jurors. In a typical product liability case lasting several weeks, an alternate juror will likely be required to serve as a deliberating juror. Our research has shown that alternate jurors tend to be more biased than regularly seated jurors. This is in large part because not as much attention or time is given to scrutinizing alternate jurors.

Developing Cause Challenges

An experienced trial attorney knows how to achieve cause challenges and is willing to go the extra distance to obtain such a challenge.  For more about cause challenges, read this article.

Practical Strategies for Using a Juror Questionnaire

Jury experts agree that potential juror questionnaires to supplement voir dire can greatly improve the jury selection process. The information learned through the questionnaire improves the voir dire process by allowing the attorney to focus on both individuals and specific topics. Benefits of juror questionnaires include:

More Candid Responses by Jurors

The courtroom setting is not conducive to open discussion.

Minimizing the Risk that One Juror’s Extreme Opinions Will Contaminate the Rest of the Panel

If one or more of the potential jurors have had an extremely negative experience with a product or a product related accident, this can cast a negative pall upon the remaining process. Juror questionnaires remove this bias, and help to identify people who may be better questioned at the bench during voir dire.

Reducing the Time Needed for Voir Dire

A problem with voir dire is that to really probe the jurors, each person needs to be asked similar questions. Jurors often feel resentful and tire quickly of the repetition. They become more reluctant to speak, and are more likely to give common answers because it is easier. This voir dire is often of limited value as an assessment tool of juror bias. Juror questionnaires help to structure the voir dire process and avoid this problem.

Research has found that many judges are likely at least to consider a juror questionnaire. In a survey of Northern California federal and superior court judges, more than 90% of the judges were willing to consider use of a juror questionnaire, and two thirds have actually used them. Research from Los Angeles has shown that while 66% of Superior Court judges have used questionnaires, almost all would consider their use. In a similar survey of Texas federal and superior court judges, more than half of the judges would consider using questionnaires. Judges are especially likely to consider use of juror questionnaires in long cases, in complex or multiple part cases, and in cases involving sensitive issues.

When judges resist administering a questionnaire, it is usually because they consider it a waste of time. These objections can be overcome by designing a much shorter questionnaire. Demographic questions asked by the court, such as age, residence, and work history, are redundant when included in a questionnaire and thus can be left out.

Attorneys can also prepare several versions of a questionnaire to be considered by the court. They can develop a set of the most important questions, the core of the questionnaire, and add to it only if the judge does not object to its length. A brief version of a questionnaire should include questions about the relevant attitudes and experiences related to the case. This information typically can be obtained in 20 to 30 questions, which amounts to a four or a five-page questionnaire. However, there are a number of mistakes we see being made in the procedures used to administer questionnaires and the manner in which questionnaires are designed.

Questionnaire Design

Juror questionnaires typically include questions on demographics (age, education, employment, etc.); litigation-related issues (jury experience, involvement in a lawsuit, etc.); and knowledge or contact with the parties involved in the litigation. Most often what is not included are questions on relevant attitudes.

Often attitudinal questions are not included in a juror questionnaire for many reasons. Sometimes judges feel attitudinal questions do not constitute a proper area of inquiry. Other times, one side or the other objects to the attitudinal questions. Occasionally, the absence of attitudinal questions is simply a mistake made due to time pressure or inexperience. Attorneys need to argue forcefully for the inclusion of attitudinal questions. Bias can only be detected if jurors are asked about their attitudes on key issues involved in the case.

Sometimes attorneys will object to asking a question about a sensitive issue. Their fear is that it might activate biases against them. For example, questions could be asked such as:

To what extent do you feel product manufacturers put profit ahead of the safety of the public?

How important do you think it is that a product manufacturer does everything possible to produce safe products?

An attorney might be afraid that these types of questions would plant a seed in jurors’ minds. Our experience indicates, however, that such preconditioning is minimal and is greatly offset by the information gained from the question. If the theme is integral to the case, it is only a matter of time before the jurors hear about it from opposing counsel. Candid questions on the juror questionnaire may help to steal some of their thunder.

Another concern attorneys express about controversial topics in questionnaires is the fear that jurors will know which attorney submitted the question and will then hold it against that party. For example, in cases involving a product that is claimed to cause cancer, attorneys may be hesitant to ask jurors their beliefs about the extent to which they are worried about getting cancer or steps they take to prevent risks to their health.

These concerns about jurors’ reactions to the questions do not give enough credit to the jurors. As a rule, jurors are not that naive about the process; they generally understand the need to ask sensitive questions. Furthermore, when the questionnaire is properly administered, it is clear to the jurors that it is a document sanctioned and approved by the court. Few jurors doubt the appropriateness of a question when it has the authority of the court behind it. If it is appropriate, jurors can be told that on certain questions, the follow-up on sensitive topics will be handled in chambers.

Question Design – Skewed Questions

The wording of a question in a juror questionnaire is extremely important. In fact, there are subtle ways to word a question that can produce a strategic advantage for one side. One such way is to write skewed questions. A skewed question is one in which the distribution of responses is uneven. For example, the question, “Do you think almost all product manufacturers put their financial interests ahead of concern for public safety,” is skewed because most people will answer, “No.” Such a response pattern would be a strategic advantage to a defendant. The advantage is gained because the few people who say, “Yes, most product manufacturers put their financial interests ahead of public safety,” are identified as likely plaintiff advocates. With the likeliest plaintiff advocates identified, the defense can focus its further inquiry and attention on them and make more intelligent use of its peremptories.

On the other hand, plaintiff’s counsel derives little useful information from the above skewed question. Most of the prospective jurors will probably respond, “No, most product manufacturers do not put their financial needs first.” Obviously, plaintiff’s counsel cannot strike all of these people from the panel; nor does plaintiff’s counsel know who among these people it would be best to strike. While the best “strikes” for the defense are clearly identified, its best “keeps” are buried in the large plurality of people who answer, “No.” Thus, attorneys can gain a strategic advantage by using the uneven response pattern of a skewed question to expose their strikes and bury their keeps.

The skewed approach could also be used in the above example by the plaintiff attorney. In writing a plaintiff question, the question would read “Do you think some product manufacturers put their financial interests ahead of public safety?” The distribution of responses to this version of the question would help the plaintiff because a minority of jurors could say no to that question and these jurors would be the plaintiff’s strike candidates.

The Questionnaire Procedure

The procedure we recommend for administering juror questionnaires is:

  • Motion for Adoption
  • Agreement by Both Sides on Content
  • Panel Sworn; Questionnaires Filled Out
  • Panel Sent Home; Copies of Questionnaires Made
  • Oral Voir Dire Begins Next Day

As can be seen from the recommended procedures, after one side moves to adopt a juror questionnaire, both sides have to agree to the content of the questionnaire; that is, they have to agree on what questions will be included. To ease agreement, attorneys will often agree not to object to each other’s questions. Notably, those questions commonly objected to in a questionnaire are commonly objected to in court, e.g., a question that asks a juror to suggest their leaning or preference in the case.

One drawback to the use of juror questionnaires is that attorneys need time to review the completed questionnaires. We usually recommend that the questionnaires are administered in the morning, and jurors dismissed until the next day. While copies of the questionnaires are being made for both sides, the attorneys can argue motions to the court.

It is extremely helpful if the court numbers the questionnaires in the order that jurors will be called into the jury box. The clerk randomly assigns the number before copies are made. When this is done, attorneys are saved the time-consuming task of reviewing all of the questionnaires equally. Enabling the attorneys to focus their attention on the questionnaires of those prospective jurors most likely to be called into the box results in a far more reasonable, rational, and higher quality voir dire process.