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A version of this article first appeared in TRIAL magazine.

Dealing With Biased Jurors During Voir Dire

Get rid of the ones you can; "de-program" the ones you can't

by Amy Singer, Ph.D.

It's reality-check time for the plaintiffs' bar - many prospective jurors across America are, in effect, tainted, i.e., prejudiced against plaintiffs, and a key manifestation of plaintiffs' basic Seventh Amendment Rights - fair and full recovery for damages. We're referring to a substantial number of the jurors you may seat now, or ever seat again in the future.

Think not? You need look no further than your next case for proof - plaintiffs' attorneys are finding it more difficult than ever before to impanel jurors who are not already biased against justifying large damages awards for products liability, medical malpractice, and similar cases. Today's venire seem to be convinced that: 1) Far too many plaintiffs are receiving lottery-type damages awards today, 2) There are too many frivolous lawsuits, 3) Juries are getting way out of hand; and 4) It is high time for somebody (them) to start slamming on the brakes.

Jury surveys indicate that this anti-plaintiff attitude is becoming more prevalent in all venues, and on a nationwide basis. Interview voir dire panelists anywhere - small towns, medium-size cities, giant metropolises - and you'll find that a large number all parrot the same notion: Jury award amounts are climbing dizzily out of sight - a principle reason, they claim, why manufacturing, insurance, and medical costs are also rising steeply.

A strategic approach to eliminating biased jurors

This article details numerous time-tested and highly reliable strategies and techniques attorneys can use to target and eliminate, or, alternatively, to "de-program," biased jurors during voir dire. But since the problem of anti-plaintiff bias is so closely tied to the issue of jury award amounts, it will be instructive to first briefly examine the anti-plaintiff/anti-jury propaganda war that is currently being waged across America. It is hard to win inside the courtroom if you are always getting clobbered outside of it. Unfortunately, this is largely the case for plaintiffs and the plaintiffs' bar today.

In the court of public opinion, plaintiffs are losing badly

Let's face it: In terms of their public image today, plaintiffs truly are on the defensive. The reason for this is clear: Powerful, vested interests, who favor constricting Americans' Seventh Amendment Rights by placing, among other limitations, a cap on plaintiffs' abilities to recover for damages, have spent untold millions of dollars in recent years to promote their position to the American public. As a result, the idea that jury awards are skyrocketing into the stratosphere has become accepted dogma among wide numbers of the general public.

If you watch television, listen to the radio, or read newspapers and magazines, there is no escaping the message that juries are "unreliable" and "out of control" - it comes at you night and day, in every possible form, and from every conceivable angle. Is it any wonder that this anti-jury message has stuck with many Americans, who now consider it gospel? (And yes, the O. J. Simpson verdict has added considerable fuel to the fire.)

The vested powers who are so adept at pumping their anti-plaintiff/anti-jury ideology into every nook, corner, and cranny of America are, at the same time, fervently proselytizing regarding other closely related themes: The notorious "Loser Pays" rule (losing party must pay the winner's legal bill in suits alleging defective products or securities fraud), eliminating joint and several liability, reducing plaintiffs' attorneys' fees, barring recovery in some negligence suits, requiring that 75 percent of all punitive damages go to the state and not to the plaintiff, and even eliminating the right to jury trials in certain cases.[1]

Powerful anti-plaintiff/anti-jury forces

The robust interests that have lined up against plaintiffs and juries include some of the most influential groups in America - major manufacturers, giant industrial concerns, the insurance companies, the health care industry, plus most of their lobbying groups - the American Medical Association, the American Hospital Association, the National Association of Manufacturers, the American Tort Reform Association, and the Washington Business Group on Health, among others.

These potent anti-plaintiff/anti-jury elements are conducting, a relentless, scorched-earth propaganda campaign to massively manipulate public opinion. Money is no object. Every conceivable means of public persuasion is being employed - sophisticated public relations campaigns; hand-tailored communications programs targeting the nation's most respected citizens and primary molders of public opinion; speeches and lectures; books and articles; radio, TV, and print advertising; direct mail (consider the dire warnings about the need for tort "reform" that are printed on the stuffers insurance companies regularly [and insidiously] mail to their customers along with their statements), and on, and on.

These anti-plaintiff/anti-jury forces have been enormously successful in their proselytizing efforts. They have successfully converted a large number of Americans - and more to the point, a sizable percentage of potential jurors - to their viewpoint. They have proved that it is possible to radically alter the minds of millions of Americans.[2] You just need to be willing and able to spend millions of dollars to do so.

Alter minds? As a psychologist, I believe that it goes deeper than that. Based on results achieved, the tort reformers are almost like The Shadow, the venerable radio hero of the '30s and '40s, who possessed the mysterious power to cloud mens' minds!

For example, I find it interesting to note that two slurs most commonly voiced against plaintiffs' attorneys - fees are outrageous, and cases drag on interminably due to endless motions - are, in reality, problems more properly associated with defense attorneys. Most plaintiffs' attorneys, after all, work on a contingency basis. They are not the ones charging their clients $75-100, or more, to return a phone call, or to answer a letter. Nor is it to their pecuniary or logistical advantage to draw court cases out forever by filing copious memos, briefs, and special pleadings. The opposite is true for defense attorneys, however, who many times can (and do) bill their clients every time they do something relating to their cases.


It is my contention that the steamroller effect of the massive propaganda disinformation campaign against plaintiffs and juries parallels classic "mind-control" techniques commonly associated with police states, cults, and fanatical religious groups. Many Americans - and thus, many jury pool members - now seem to accept the anti-plaintiff/anti-jury philosophy on a visceral, even non-rational, level. That's a tough situation to counter.

Weeding out biased jurors during voir dire

Before discussing how to best deal with jurors who are automatically opposed to the issue of large damages awards for plaintiffs, let's first discuss the issue of biased jurors in general, and how to target and eliminate them during voir dire. Few tasks are as important for the plaintiff's attorney. All it takes is one biased juror to kill his or her case and sink the plaintiff for good.

Bias on the part of a juror is established primarily by the expression of an opinion that is clearly contrary to the plaintiff's case, and by the clear inability of the juror to render a verdict one way or the other should the facts warrant it.

With this definition in mind, the primary goals of the attorney during voir dire are twofold: 1) To determine those prospective jurors who are inclined to weigh the facts against the plaintiff in light of their own prejudicial attitudes; and 2) To intelligently use challenges to eliminate these individuals from the panel.

Biased thinking is the bitter fruit a prejudiced juror brings to the trial proceedings. When searching out biased jurors during voir dire, it is helpful to keep in mind this often-quoted admonition from the Bible: "By their fruits you will know them." [3] Let's now discuss how to plan for, and to conduct, voir dire so as to easily locate such rotten fruit, and then get rid of it quickly.

First: How not to conduct voir dire

Before detailing how to orchestrate voir dire so as to most effectively de-select biased jurors, it will be useful to first discuss, and eliminate, some wrong-headed approaches many lawyers often take in this essential area.

Attorneys are "demographic-dependent" - Far too many attorneys base their juror selections on demographics - age, race, sex, job, religion, and so on - despite various studies showing there is no correlation between demographics and verdicts. Nevertheless, many attorneys cannot liberate themselves from the hoary myths and old wives' tales that continue to exist regarding jurors. They often seat jurors who end up unexpectedly torpedoing their cases as a result.

Psychologists know that stereotypes concerning demographic groupings are usually wrong. People's attitudes and beliefs are not merely a function of race, age, sex, and so on. Not all Jews are liberal, nor all women compassionate. Many bankers have strong social consciences. Many clergy and social workers do not. Nevertheless, most attorneys continue to rely on demographics as an irrefutable Rosetta Stone to determine jurors' proclivities and biases.

The "20 Questions" Approach - Jurors control voir dire, not attorneys. In most cases the attitudes (and biases) jurors hold concerning the issues of the case are not going to be changed by the style, content, and/or direction of the questions the attorney poses to them during voir dire. Nevertheless, attorneys try to control and to contain jurors during voir dire by using what I term the "20 Questions" approach.

For instance, they ask conditioning questions - e.g., "You understand, of course, that it would be improper to diminish the money to which my client may be entitled simply because it is a large sum" - to get jurors to pre-commit to their desired view of the case before the trial has begun. Or they treat the voir dire panelists as surrogate students so they can teach law school - "Do you realize that sympathy must play no part in your verdict?" One of the most egregious mistakes attorneys make during voir dire is to direct personally insulting questions at the jurors concerning their abilities: 1) To comprehend the issues of the case, and 2) To render impartial verdicts. Such questions insult the jurors, while making the attorney appear fatuous. They are a large waste of time because they can only be answered in a socially acceptable manner. If you think otherwise, consider the alternative:


Do you fully understand what I have been trying to explain to you (concerning a particular case issue)?


Well, I don't know. I'm pretty stupid, so it takes me a while to get the gist of things. How about if I tap my right foot - that is, if I can remember which foot is the right one - two times when I don't understand, and three times when I do?



Sir, are you sure you can be fair?


No, in all honesty I really can't. That's why I will now publicly humiliate myself by proclaiming to you, the judge, and this room full of total strangers that I am a close-minded bigot. As such, I am hopelessly biased to judge this or any other court case on its merits. Please strike me from the jury, so I can quickly slink out of here and back to the hole from which I crawled out.

Invariably, asking jurors simple-minded and demeaning questions of this type will result in responses that are equally worthless.

Close-ended questions - Another big mistake many attorneys make during voir dire is to rely almost exclusively on close-ended questions when interviewing jurors. When it comes to determining jurors' attitudes, this approach is doomed from the outset. Close-ended questions - "How many of you have ever had surgery?" "How many of you have lost their mothers?" - severely limit the jurors' responses to "yes," "no," and similar tightly circumscribed answers that reveal little or nothing about them or their attitudes. Close-ended questions do not provide jurors with the opportunity to tell what they think and how they feel about the primary case issues. Without such knowledge, it is virtually impossible for the attorney to accurately gauge what the panelists' biases will be concerning these key issues. Using close-ended questions to ferret out juror bias is like trying to play darts blindfolded - it's possible to hit the bull's-eye, but not very likely.

Kill the conversation - The most effective voir dire takes place when the jurors can discuss the case issues in an open and animated fashion as a group, i.e., just as they would during actual deliberations. The strong advantage to the attorney of being able to view jurors as they participate in this revealing conversational-type activity is clear.[4]

This conversational approach to voir dire can be achieved by allowing the individual jurors: 1) To honestly express their feelings about the case issues, and 2) To feel free to weigh in with their own opinions and attitudes about what the other jurors have said. Many attorneys, however, try to shut down any conversation among the jurors during voir dire. They worry that negative views expressed by one juror will poison the others.

This is an unnecessary concern. Common sense indicates that one negative juror cannot suddenly "infect" the other jurors by merely voicing an opinion. Attitudes and beliefs are not contagious. Indeed, the key task of the attorney during voir dire is to use probing questions to determine which panelists enter the box already contaminated, then eliminate them as quickly as possible.

Attorneys who try to constrict conversations during voir dire should understand this proven fact: Every conversation has a beginning, a middle, and an end. Trying to shut down a conversation that has "broken out" among the voir dire panel means that it will simply start up again later in the jury room. It is much better to have the conversation take place in front of the attorney during voir dire - where he or she can still control it to some extent by being able to eliminate some of its participants.

What works in voir dire?

I have listed some approaches not to take during voir dire. OK, so then, what works? Following are various strategies and techniques to target juror bias during voir dire. These approaches have proven reliable in thousands of civil cases of every possible type. If implemented as suggested, they will assist the attorney to more efficiently and effectively: 1) Determine with maximum possible certitude those jurors who will be most likely to find against his or her client due to the jurors' own biases; and 2) Successfully remove these prejudiced jurors for cause. This strategic approach begins with pre-trial litigation research.[5] Let's take a look.

Litigation research

There is balance to a trial. The closing argument addresses the main points brought out during opening statement. Direct and cross-examination cover the same witnesses and subjects, but from bi-polar perspectives, and with mutually exclusive goals. And what comes out in deliberations should also come out in voir dire.

Savvy attorneys can ensure that this takes place through the use of litigation research conducted before the trial begins. Litigation research can provide the attorney with invaluable and otherwise unavailable data regarding what the voir dire panel members will consider to be the core issues of the case, and how they are liable to react to these issues emotionally and intellectually. Such research also enables the attorney to determine the ideal voir dire questions to ask that will most effectively ferret out juror bias.

Litigation research uncovers the all-important value beliefs of jurors regarding a particular case. No other information the attorney can discover about jurors is as critical as what their value beliefs may be - i.e., the core internal precepts by which they think and operate. Research shows that it is value beliefs that most clearly correlate with verdicts - not demographics, life experiences, or any other factor.

When the attorney gains this key information concerning the jurors' value beliefs, he or she will also then be able to discern how these internal attitudes will translate into external opinions, prejudicial and otherwise, that will be expressed regarding the primary case issues. Thus, the attorney will be in the ideal position to know what type of biased and negative jurors to watch out for, and to subsequently de-select, during voir dire.

Litigation research is usually conducted through focus groups and jury simulations prior to voir dire. This research is similar to the consumer testing that companies employ prior to bringing a product to market. It allows the attorney to see the case as the jurors are likely to see it.

Focus groups - These highly revealing sessions help spotlight vital case information, including, among other data, the relevant issues of the case, the key value beliefs of the jurors and how they relate to these issues, and the relevant attitudes that may predispose jurors to be less than neutral.[6]

Key issues - People are very "issues"-oriented, and the key issues of the case are the factors upon which it will be decided, e.g., "physician indifference" (in a medical malpractice case), "commercial arrogance" (in a products liability case), "gambling with other people's lives" (in a auto crash case), and so on.

It is very common for the attorney to assume he or she is in touch with the key issues of the case, only to learn though jury simulations that what was considered important turns out to be far different from what will be important to the jurors.[7]

Value beliefs - These are the precepts, principles, dicta, and codes that people hold most central to their personalities. They often are expressed through the use of such words and phrases as "should," "must," "ought to," "could," or with such terms as "everyone..." and "anyone..." For example, "doctors should...," "people must...," "the patient could have...," "everyone knows that...," and so on.

Value beliefs represent the internal standards people use to weigh what is proper behavior and what is not. "Doctors must not ignore their patients' complaints," "Manufacturers shouldn't be held responsible for a product that is 20 years old," and "Everyone knows that you shouldn't expect handouts" are examples of some value beliefs.

Jury simulations - These surrogate jury sessions enable the attorney to fine-tune his or her trial presentation strategy so that it most comprehensively answers the questions and addresses the issues raised in the previously conducted focus groups. During jury simulations, surrogate jurors discuss the important case issues in a manner similar to what will take place during actual deliberations. Jury simulations demonstrate with uncanny accuracy what the jurors are going to deliberate about, and what type of juror will take what type of position.

Jury simulations provide the attorney with an almost magical ability to "tap" into the jurors' deliberations. A careful analysis of these deliberations will reveal the discrete points in the conversational "script" where certain jurors felt prompted to voice their negative and/or biased viewpoints. Armed with this data, the attorney can then plan highly specific voir dire questions that will prompt the panel's problem jurors into clearly revealing their own biases.

Basically, the attorney listens to the negative and/or biased beliefs and attitudes expressed during jury simulations and focus groups, and then designs his or her questions to provoke the same type of negative responses during voir dire. This is just like the hunter who uses his or her favorite duck call to trick the unsuspecting prey to come flapping out of the bullrushes for an easy shot.

It bears repeating that jury deliberations normally takes the form of a conversation. If the attorney can anticipate this conversation because he or she has simulated the case, then a similar conversation can be held with the panel members during voir dire. But this will be a loaded conversation, and it is the attorney who will have all the ammunition. Thanks to the pre-trial research already conducted, the attorney will know precisely what questions to ask to raise the same concerns during voir dire that will be discussed later during deliberations.

Most people love to volunteer their opinions if provided an opportunity. This is particularly true for opinionated individuals. If during voir dire the attorney can ask the question(s) that his or her pre-trial research has shown the negatively opinionated jurors want (indeed, need) to answer - then all he or she has to do is stand back, and wait for these jurors to blow themselves out of the water. If handled properly, the process can seem almost to be scripted.

To illustrate, let's first consider a deliberation that might have taken place during a jury simulation concerning an auto crash case:

Juror #1:

I'm familiar with the accident scene. I've driven through it many times before. It's dangerous.

Juror #2:

You're right. It's not very safe.

Juror #3 (to Juror #2):

You've driven that road before, but you've never been in an accident. How come? Why did she?

Juror #2:

The plaintiff had a beer before getting in her car. Maybe that affected her ability to make the curve.

Juror #4:

That's right! Don't drink and drive.

Juror #5:

But all she had was one beer.

Juror #4:

One beer too many.

Juror #1:

Anyway, I still think that curve is dangerous.

Juror #2:

I think the beer and the curve make it dangerous.

Juror #6:

I agree. Maybe we wouldn't need to be here today if it weren't for that one beer.

This simulated deliberation indicates one clear fact: Even though the plaintiff had just one beer prior to her crash, and although the road on which the crash took place is considered dangerous, the surrogate jurors are overly concerned about the issue of drinking and driving. It can be anticipated the actual jurors will feel the same way. Since the issue of drinking and driving appears to be a key issue of the case, the attorney now must: 1) Get the voir dire panelists to participate in a similar "deliberation," 2) See which jurors are most negative about the issue of drinking and driving, then 3) Plan how to de-select them.

In other words, the attorney must engage the voir dire panelists in a conversation regarding the issue of drinking and driving. He or she must be the spark to get the conversation going, then make sure everyone gets an opportunity to speak. So, for example:

Attorney (to juror #1):

What are your feelings about driving after just one or two drinks?

Juror #1:

I don't think it's a good idea.

Attorney (to all jurors):

How many agree with this gentleman? (Notes positive and negative responses, then asks Juror #2, who has voted in support of Juror #1's statement, why she feels the way she does.)

Juror #2:

My mother suffered severe skull fractures when the car she was driving was hit by a drunk in the wrong lane.


I'm very sorry. How does that make you feel?

Juror #2:

To be quite honest, I hate anyone who drinks and drives.


I can see how you might feel that way. Thank you for being so candid. (Then asks juror #3 whether he believes that having only one drink can make a person "drunk.")

Juror #3:

Sometimes it only takes one.

Attorney (to juror #4):

Do you agree?

Juror #4:

No, that's ridiculous. Often, I have an entire six-pack before driving, and I never have any problems.

Juror #5 (in a loud aside to Juror #4):

That's right. Guys like you give the problems to everyone else on the road.

This is the way voir dire should be handled. By carefully listening to the responses provided by the voir dire panelists, and by encouraging all jurors to speak freely and to offer their own opinions regarding these responses, the attorney will have set up the perfect voir dire - i.e., one in which the jurors pre-deliberate regarding the case's primary case issues - out front and in the open. By getting the jurors to offer their own opinions about the key case issues, the attorney will have a pretty good idea who to de-select, and who to keep. Under these circumstances, it does not take a Sigmund Freud to de-select jurors for bias.[8]

When it comes to voir dire, litigation research provides the attorney with an immense advantage. It means that he or she will know how, why, and what buttons to push to get the jurors to reveal their true feelings - and thus, their biases - concerning the primary case issues.

Trial research is worthless if not organized properly

Most attorneys don't understand how to properly organize focus groups and jury simulations that will provide meaningful results regarding the primary case issues, and how the jurors will relate to them. Often, the attorney will round up his or her associates and friends, then "trial-run" various aspects of the case in front of these individuals. Many attorneys often "win" their cases before such casually selected (yet subconsciously sympathetic) groups, then lose in court later. Clearly, this is not an effective method to "mock-try" the case. And it is certainly not an effective means to develop any useful information that can help find and eliminate biased jurors during voir dire. [9]

When it comes to organizing focus groups and jury simulations, it makes no sense to use associates, friends, and similar individuals as surrogate jurors. Such individuals likely will all share the same value beliefs. Often, these prove very similar to the attorney's - but have no similarity to what the jurors are liable to truly think and feel.

Attorneys like to hear thoughts expressed that are positive regarding their cases, but often shun negative expressions concerning them. This tendency is understandable considering the often vital stakes associated with many court cases. It doesn't assist, however, in the development of an objective understanding and appraisal of the case, or of the jurors who must decide it.

Target the case's problem areas

The best way for the attorney to organize pre-trial research is not to assemble like-minded individuals who may be psychologically inclined to present a pro-plaintiff viewpoint concerning the primary case issues. Instead, it is far more useful to organize a room full of surrogate jurors who will be intensely negative to the plaintiff's position - in short, 12 "Hitlers."[10]

Focus groups and jury simulations should be organized to concentrate on the problem areas of the case (e.g., the issue of drinking and driving in the case of the woman who drank one beer and then crashed her car). It is the case's problem areas, after all, that cause the most trouble, and that the attorney must therefore be most concerned about. And it is these problem areas that will yield the most valuable information in determining what type of questions to use to uncover biased jurors during voir dire.

Pre-trial litigation research represents the heavy lifting portion of the overall strategic approach to spot, disarm, uncover, then de-select biased jurors during voir dire. It enables the attorney to learn precisely what issues the jurors will be most concerned about, along with the right voir dire questions to ask to elicit juror bias.

Remember: Voir dire is an exploration to get jurors to articulate beliefs. With the appropriate questions (gleaned from pre-trial research) asked in the proper manner (open-ended questions regarding feelings and thoughts), the prejudiced jurors will reveal themselves - and their biases - for all to see.

Setting up jurors for cause

In order to get jurors to speak up and reveal their true feelings during voir dire, the attorney must make them feel at ease and comfortable; ask open-ended questions that require thoughtful, comprehensive answers; be completely non-judgmental regarding what jurors have to reveal; and be sure to include all jurors in the voir dire "conversation" to learn what they think and feel about the issues of the case.

Making jurors feel comfortable - The attorney can go a long way to put the jurors at ease if he or she simply employs good common sense - along with good manners.[11] For example, the attorney should come away from the podium and approach the panel members, but maintain a mutually comfortable distance; be sociable and smile; establish and maintain proper eye contact; ask all questions in a friendly and open manner; and permit the jurors to respond according to their own tempo and style. It is also important for the attorney to ensure that all juror responses are treated with courtesy and respect, even the horrible ones.[12]

Finally, the attorney must listen carefully to the jurors, and be sensitive to what they have to say. So, for example:


What type of work do you do?


I'm a bricklayer, but I recently contracted Parkinson's Disease and can no longer work.


And what sort of job does your wife have?

Clearly, the attorney is either not paying attention to what the juror is saying or is highly insensitive to the juror's problem. This is unfortunate. By sympathizing with the juror over his hard luck, the attorney would have probably won a friend on the jury, along with points with the other jurors for being a caring and considerate individual.

Additionally, the attorney is blindly passing up a potentially valuable line of inquiry concerning the juror. For example, a follow-up question along this line might be revealing: "I'm very sorry to hear that, sir. How does being in this situation make you feel?" A juror who answers that, "A person must learn to accept his or her fate in life" probably will respond far differently to the plaintiff's problem than someone who would react less stoically.

Open-ended questions - Most people like to speak about themselves and what they think and feel. Indeed, it makes them feel important to be asked about, and to reveal, their thoughts and feelings to an interviewer. Good interviewers know that one of the secrets to get people to open up during an interview is by using open-ended questions. For example:

"Can you please share your feelings about obstetrics cases?"

"How did it make you feel when you lost your father due to an explosion at the plant where he worked?"

"What are your feelings about the need for standards in the X industry today?"

"What do you think about compensating people for pain and suffering?"

Note that these questions all employ the words "feel" and "think" in various contexts. By framing the questions in this manner, the jurors are forced to respond in kind, i.e., with their own thoughts and feelings concerning the issues raised.

Treating jurors non-judgmentally - The great psychologist Carl Rogers was a master in getting his patients to quickly open up and tell him how they truly felt about things.[13] Key to Rogers' strategy in dealing with patients was being completely non-judgmental regarding what he was told.[14] Rogers understood that his patients would not reveal themselves if they had to worry about being judged harshly for what they had to say. This is a simple truth of human nature, and it applies as much to jurors during voir dire as it does to patients on the psychologist's couch.

Reinforcement, reflection, clarification - In addition to permitting his patients to say whatever they wanted without fear of retribution, Rogers utilized some additional techniques to promote open, clear communication. Specifically, he would reinforce any statements made with an approving reciprocal statement - "I'm glad you brought that up!" or "Thank you for that comment!" Rogers understood that reinforcement increases the probability of a response. He would then openly reflect on the patient's statement - "The confusion and anguish you are now feeling must be difficult to bear" - to signal that he had indeed heard what had been said. Finally, he would attempt to clarify the statement - "So by that, you mean......" - to eliminate any ambiguity.

The attorney can effectively employ this same polished approach during voir dire to determine precisely who the jurors are and what their biases may be. For example:


What are your feelings about jury awards?


They are way out of line. People are getting fortunes today for minor things. As a result, insurance rates are going through the roof.


Thank you, sir, for that honest statement of opinion. (Reinforcement) Now, I hear you also saying that jury verdicts are driving up insurance rates, is that correct? (Reflection)


Yes, that's right.


Why do you think this is so? (Clarification)


With everybody getting sued, the insurance companies have to raise their premiums to make a profit - so the little guy ends up getting the shaft.


You mean the typical person such as yourself? (Clarification)


That's right.


So you're saying jury awards are directly costing you money? (Clarification)


No question about it.


In other words, you feel that it would be against your own personal financial interest to award my client money, even if the facts of this case prove that she should be financially compensated. (Clarification)


I'm sorry, but I have to tell you the truth.


Please don't apologize at all, sir. I very much appreciate your honesty. (Reinforcement)

The attorney in this example has been able to clearly set up the juror for cause.[15] This has been accomplished by reinforcing (and thus encouraging) the juror to reveal his true feelings; by reflecting with the juror concerning these feelings; and then by asking clarifying questions to illuminate the juror's responses (and possible biases) for all to see and hear.

This is basically how the procedure of setting up a juror for cause works. It is not a complicated or mysterious process - indeed, it is remarkably straightforward. The attorney must be warm, friendly, sensitive, and respectful with the jurors, so they will feel comfortable to speak openly and freely. He or she should ask open-ended questions requiring revealing answers that go to the heart of the jurors' predispositions. The attorney should attempt to restate and clarify the jurors' responses and statements so they will feel understood. And he or she should convey an attitude of acceptance and approval regarding all juror responses.

If the attorney follows this suggested approach, the jurors will in all likelihood be willing to reveal themselves, along with their attitudes and biases, during voir dire. Once those biases are clearly revealed, the biased jurors should then be able to be struck for cause.[16]

Most important, the attorney should make the jurors feel comfortable to open up, then be quiet and let them speak! The more the biased jurors speak, the more judgmental and brittle they will appear, and thus the deeper they will bury themselves.


Do not sabotage your own challenges for cause

After getting a juror to reveal his or her bias, the attorney should not turn around and ask if he or she can return a verdict. Instead, the attorney should come back to that person at the end of the questioning, get the juror to repeat his or her bias, then thank the person for being candid. For example: "You already have told us that you believe doctors should not be held to the same degree of accountability as other people, and that a doctor's word should be worth more in court than someone else's. You are to be commended for your honesty. Now your feelings in this regard are not likely to change in the next three days, right? Thank you." A series of follow-up questions along this line allows the attorney to solidify the challenge for cause as the bad juror further commits to his or her initial biased opinion(s).

Don't forget to poll the jurors

When a biased juror clearly reveals his or her own prejudices, the attorney then has an excellent opportunity to find out how the other jurors feel about the same issue(s). The attorney should immediately take a poll of the other panel members to determine who agrees or disagrees with the juror and his or her biased idea(s).[17]

Get rid of problem jurors right away

The attorney should attempt to strike a biased juror for cause as soon as possible. Problem jurors usually cause more trouble during breaks and over meals than they do in the courtroom. They often engage the other jurors in "negative" conversations (e.g., about those "ambulance-chasing" plaintiffs' lawyers, the plaintiff's obvious lack of character in bringing a lawsuit against saintly Doctor Bob, and so on). The best thing is to try to dump biased jurors immediately - before they can do any real damages.

"De-programming" biased jurors

It is not always possible to successfully eliminate all biased jurors during voir dire. In some cases, it may become necessary for the attorney to utilize special goal-oriented communications techniques to "de-program" such jurors, i.e., to assist them in seeing the particular case issues in a new light.

The term "de-program" is used deliberately. To illustrate, consider voir dire panelists who believe that most jury awards are exorbitantly unrealistic. As detailed earlier, many of these individuals - just as many Americans - have, in effect, been programmed to believe that excessive monetary awards for plaintiffs are the norm. This concept has been drummed into them for so long and so often that they now accept it, indiscriminately, as fact. They know it's true; they don't need to think about it.

These jurors are, in effect, like "brainwashing" victims who need to learn the truth. It therefore becomes the task of the attorney during voir dire to provide new perspectives for such jurors in order to help them see things more objectively.

Some beliefs can be altered during voir dire

In most cases, it is extremely difficult to alter a person's attitudes and beliefs. These normally spring from a person's primary life experiences. An example of a life-experience belief: If a man was brutally mauled as a young boy by a large, black-haired bulldog, he will probably make sure as an adult to stay as far away as possible from large, black-haired bulldogs - automatically (subconsciously) assuming (believing) that such dogs will surely attack him if they get the chance.

Attorneys should understand, however, that jurors' attitudes regarding such subjects as large damages awards are likely not central to their bedrock belief systems. True, such beliefs are implanted in the psyche, but not in the same profound manner as the core value beliefs (e.g., the deeply felt internal knowledge a mother holds that she will do anything to protect her small child from harm). It is only the core beliefs that resonate deeply in the psyche (e.g., the shrill alarm bells of terror that go off inside the mind of the dog-fearing man when he turns the corner and is quite suddenly and unexpectedly confronted with a large, black-haired bulldog).

Since the prejudice against large jury awards is not a primal, life experience belief for most prospective jurors, it is quite possible to be changed during voir dire. Furthermore, such change is liable to have a cathartic effect on the jurors in question.[18]

Scripted behavior by jurors

Attorneys should be aware that some voir dire panel members may exhibit minute but nevertheless unusual demeanor changes if the issue of large damages awards is raised. For instance, their speech may sound a bit scripted, their eyes may appear to glaze over slightly, and they may even seem to be in brief "trances," physically present, but not completely there mentally. (These acute changes to demeanor may be noticeable only to a psychologist, psychiatrist, or other trained observer.)

The reason for these faint changes in demeanor, however, is very clear - when it comes to the topic of "excessive" damages awards, many voir dire panelists already know the supposed "truth." This means they will find it easier to simply "close down" mentally when the subject of damages awards is raised. It is much easier for them to "nod off" with their eyes open than it is to think critically about the subject.



Voir dire - a wake-up call

During voir dire, attorneys must "wake up" jurors so they will be able to consider the issue of large damages awards more objectively. This can be achieved by a carefully planned and directed series of sharp questions to the jurors. Through this bracing query technique, the attorney can snap jurors out of their dull, "trance-like" states to get them to begin to question their own prejudicial attitudes regarding damages awards.

This interrogatory technique is similar to that used by cult exit counselors to help bring victims of mind-control groups back to reality. It is based on the concept of providing fresh perspectives so the individual can begin to view his or her beliefs in a new, more objective light. The following exchange illustrates what I mean. (Note: I will again use the issue of "jury verdicts" since it seems to be such a big problem for many jurors today.)


What are your feelings regarding jury verdicts?


Well, I know there are a lot of people out there who will sue, then get paid off royally, and all for the stupidest things.


Could you give us an example?


I guess that McDonald's case would be the best one. Suing because you spilled some hot coffee on yourself in your car? Ridiculous!


Do you think that's all there was too it?


As far as I recall, yes.


Sir, did you know that prior to this case there had been hundreds of complaints against McDonald's because of its scalding hot coffee?


No, I didn't know that.


Did you know that in this particular case, the woman was severely burned by the hot coffee?




Or that she was not driving her car when she was scalded but instead was sitting stationery in the McDonald's drive-through, simply trying to add some sugar to her coffee?


Uh, no, that's news to me, as well.


Since McDonald's had already received so many complaints about scalding hot coffee, do you think they should have made some adjustment to the temperature of coffee served to people who would then have to balance it in their cars?


Yes, that would make sense.


Where did you learn about the McDonald's case?


Newspapers, TV, that sort of thing.


Do you suppose that because McDonald's is a major national advertiser, some of the details we have been discussing here might not have been fully reported?


That's possible, I'm sure.


Do you still feel the way you did a few moments ago concerning the McDonald's case, and the subject of damages awards, in general?


No. I think I would prefer to look closer at the particulars of each case.


Thank you, sir.

This type of brisk questioning prompts jurors to think, to examine their premises, to cut through all of the propaganda and malarkey they have been force-fed over the years concerning "excessive" jury awards, so they can begin to see the facts clearly for what they really are. (Please see the sidebar article on page 00.)

If the attorney is probing for information concerning attitudes about jury awards, but the judge does not permit the extended form of questioning as illustrated above, the "de-programming" can still be accomplished, albeit in a condensed fashion. After the juror references the McDonald's case (or one similar), the verdict of which he or she does not approve, the attorney might then handle as follows:


Considering the information that has been presented so far, is there anything that would lead you to believe this case will be like the McDonald's case?


No, it sounds pretty different.


So this case should be judged on its own merits - that is, independent of any other cases and verdicts that you may have heard about?




Thank you, sir. I can't ask for anything more than that.

The attorney must realize that providing fresh perspectives to biased jurors during voir dire will not always result in changed attitudes. But, short of being able to get biased jurors off for cause, or of using up valuable peremptory challenges, this interrogatory process does offer the best chance for the attorney to balance the scales during voir dire with negatively opinionated jurors.

What about contamination?

Many attorneys may be reluctant to engage a biased juror in the manner suggested for fear of contaminating the other jurors. As discussed earlier, this is largely a needless worry. The propaganda campaign that has been waged so skillfully by the anti-plaintiff/anti-jury forces has probably contaminated most of the panelists in the box anyway, along with a majority of their fellow citizens. Attorneys who cannot accept this fact are in denial.

Attorneys must keep in mind that this "de-programming" process is designed to eliminate the effects of tainting that have already occurred. Plus, it offers an additional benefit: Once voir dire panel members begin to realize they have been conned about jury damages awards by powerful but unseen forces, they are going to become very angry. Their anger will, in turn, make it more likely that they will go the other way when it becomes time for them to set an award amount should they determine to rule for the plaintiff.

[1] The Republican-led Congress has lined up strongly in support of the anti-plaintiff/anti-jury forces. Both the Senate and the House passed legislation in 1995 - S. 565 and H. 956, respectively - that would negatively impact plaintiffs' rights. The House bill includes comprehensive new rules that would, among other things, cap punitive damages in all civil actions to $250,000, or three times economic damages, whichever is greater; and replace joint liability with proportional liability for non-economic damages. (The Senate bill is more moderate.) The two bills must now be reconciled and approved by the joint Congress.
[2] It wasn't so many years ago that Americans largely sympathized with plaintiffs as underdogs fighting valiantly for their rights against powerful corporate and similar interests.
[3] Matthew 7:20.
[4] When it comes to voir dire, the attorney must keep in mind that he or she is not selecting individual jurors, but rather picking a jury. This is why watching jurors pre-deliberate during voir dire can be so invaluable. Such observation can provide much useful information: How will a particular juror influence other members of the jury? Is he or she a leader who can convince the other jurors to a particular point of view? Are other panelists "followers" who will easily give in to his or her personality? Is this a juror who will adopt the latest opinion expressed - or is he or she the type who will hold out on principle?
[5] An optional but often valuable early action to take when planning voir dire is to petition the judge to ensure that the voir dire process will be as expansive as possible. (Remember: In most cases, the judge wants to minimize bias regarding jurors, but the attorney wants to spotlight it.) Some worthwhile suggestions concerning how to successfully petition to expand voir dire are contained in Jurywork: Systematic Techniques, published by the National Jury Project (Elissa Krauss et al, eds., 1983). Of course voir dire will often be more constricted in federal courts since judges normally handle the actual questioning of jurors. Under these circumstances, supplemental juror questionnaires are almost a necessity. SJQs can be extremely effective when properly planned and prepared. (Since jurors must sign their names attesting to the truthfulness of their responses in SJQs, they take them very seriously.)
[6] Pre-trial research is also invaluable in helping to develop the best theme for the case, i.e., one that will achieve the widest level of acceptance with jurors. Successful litigators know that to win in court, they must be able to tell the jurors a compelling story to which they will be able to positively relate. The theme is a one-or two-word summary of the case story, e.g., "accountability" in a products liability case, "prejudice" in a wrongful termination case, or "passing the buck" in a medical malpractice case. Research indicates that jurors deliberate in themes. By utilizing the right theme during the trial, the attorney provides an important peg upon which the jurors can "hang" their deliberations. This means that the case will be discussed in terms favorable to the client. Along this line, it is always worthwhile to "envelope" the theme during all of the trial's key segments. This means to continually reference the theme throughout the trial, including voir dire. In a slip-and-fall case, for example, a workable theme might be "precaution." Therefore, it will be useful for the attorney to employ the word "precaution" when framing his or her questions to the jurors - e.g., "Can you share your feelings with us regarding whether property owners should take elementary precautions to ensure that people are not hurt on their premises?" "Do you try to take precautions to prevent injuries on your own property?" By highlighting the word "precaution" repeatedly in this manner, the attorney can gain the selective attention of the jurors. This means the jurors will begin to believe that the primary focus of the case is about "precautions," and will thus be on the alert for additional information during the trial concerning any lack of necessary precautions taken by the defense.
[7] Attorneys' assumptions about how jurors will regard the information they are presented in court often are turned upside down as a result of pre-trial research. A recent case in which I participated concerned a plaintiff who had suffered massive injuries in an auto crash. It had been established prior to trial that the defendant had several hundred feet to make a correction to his driving to avoid the collision. This incontestable fact delighted my client, the plaintiff's attorney. During pre-trial research, however, the surrogate jurors were uniform in the opinion that, given the circumstances of the case, several hundred feet was an inadequate distance for the defendant to be able to safely maneuver his car so as to avoid a crash. Now, at the same time the "several hundred feet" factor had been established, it had also been determined that the defendant had precisely 19 1/2 seconds to maneuver his car to avoid the collision. When this fact was presented to the jurors, their thinking completely changed and all immediately lined up against the defendant. The jurors now were in total agreement that 19 1/2 seconds was more than enough time for the defendant to make a correction to his driving to avoid a crash. In other words, pre-trial research had clearly established that when the case was presented to the jurors in terms of the distance factor, the defendant won; but when presented according to the time factor, the plaintiff won. Armed with this invaluable insight, the plaintiff's attorney made sure to emphasize the "19 1/2 seconds" factor at every possible point in the trial - and won the case handily for the client!
[8] J. B. Spence of Miami taught me a terrific technique that can be used to uncover negative and/or biased jurors during voir dire. I term it the "Spence Technique," and it works this way: During voir dire, the attorney should ask the juror whether there is anything about his or her attitudes and feelings concerning (the particular case issue[s]) that the attorney "should be concerned about." (Alternatively: "Is there anything about your feelings regarding the issues of this case that I should be worried about?") This is an extremely effective technique to get jurors to step back from their own biases and negative attitudes regarding the prime issue(s) of the case, then discuss them dispassionately with the attorney during voir dire.
[9]Alternatively, some attorneys mistakenly believe they must pick surrogate jurors so as to create a "representative sample" of the venire pool. This would not be practical for most cases because a minimum of 400 surrogate jurors would need to be included in pre-trial research activities for the testing to be statistically significant.
[10] These individuals can be recruited through special newspaper ads soliciting "research" assistance. In a products liability case, for example, the ad might read: "tired of people who are unable to accept responsibility for themselves and who sue manufacturers, doctors, and others at the drop of a hat? want to get paid to participate in important research concerning this issue? Contact......."
[11] I always advise my clients to pretend they are the hosts or hostesses of a cocktail party in which the jurors are guests!
[12] The following represents an actual exchange that took place not long ago between a nationally known Florida plaintiffs' attorney and a juror he was questioning during voir dire for an auto accident case. [Q] Attorney: "What do you think of jury verdicts?" [A] Juror: "They drive up my insurance rates." [Q] Attorney: "And why do you have insurance?" [A] Juror: "To pay scumbags like you." The attorney did not react emotionally or take offense when the juror spoke to him in such an insulting fashion. Instead, he thanked the juror for the "honesty" of his response, then had the presence of mind to ask whether the rest of the jurors felt in a similar manner. None did. In fact, by this time, the other jurors were clearly edging away from the crude juror in the jury box. The judge immediately discharged the juror from any further duty. It was as if a trapdoor had immediately opened under his seat, and he was gone!
[13] His techniques were so successful that they now constitute the highly respected and widely practiced "Rogerian Approach" to therapy.
[14] Phil Donahue and Oprah Winfrey have made millions of dollars on TV by expertly using this approach.
[15] When it comes to jurors, fears and doubts become indictments. If a juror is afraid that his or her insurance rates are going to go up as a result of the verdict, that juror is likely to indict the plaintiff. That's why it is crucial to de-select such a juror during voir dire, along with any other jurors who feel the same way.
[16] Before voir dire it is useful to submit a Memo of Law to the judge discussing the current legal standards regarding "challenges for cause." It is much better to get such ground rules established early, rather than trying to do so on a juror-by-juror basis during voir dire. Regarding challenges, it is important for the attorney to remember to be sure and exercise all of his or her peremptory challenges during voir dire. Ground for appeal on the basis of prejudice is predicated on a full use of all peremptory challenges.
[17] When planning for voir dire, the attorney should make sure that someone is available to fully and accurately record all juror responses. A written record will keep all juror responses in order so as to avoid any possible mix-up later. Depending on the case, it may also be worthwhile to have a designated individual available to carefully observe the jurors and their demeanor - i.e., when they are responding to questions themselves, and when they are listening to the responses of the other jurors. Attorneys need to understand, however, that jurors' gestures, body language, and other demeanor changes are very easy to misinterpret. Reliable data can only be obtained by using a professional (normally a psychologist or psychiatrist) who is expert at observing and evaluating a series of bodily signals and patterns.
[18] Research in the field of social psychology indicates that people tend to disclose more when they are pressured psychologically (i.e., when they are feeling nervous, uneasy, and so on) than when they are not. Sometimes the primary case issues prompt such feelings of anxiety among jurors. The increased level of disclosure on the part of jurors during voir dire helps to relieve the stress that accompanies these feelings. The attorney who understands this fact can use it to his or her advantage when questioning jurors. To illustrate, the attorney might address the juror as follows: "This case concerns denying equal employment due to race. You, sir, are a working man. What are your feelings regarding this topic?" The juror may respond by stating that, "Some people think they are entitled to the best job, whether they've earned it or not." Notice that by framing the question in this manner, the attorney has been able to get the juror to open up and reveal his negative feelings. The attorney will be surprised at the wealth of information that can be gained from this cathartic approach to voir dire.