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A version of this article first appeared in Inside Employee Rights Litigation.

Voir Dire in Employment Law Cases

by Amy Singer, Ph.D.

© Amy Singer, Ph.D. 1998

The economy is booming, unemployment is falling, and there is a greater degree of national sensitivity to workers' rights than ever before. Feeling their strength, more employees are standing up in court for their employment rights, suing companies they work for, right and left, on charges of unlawful employment discrimination, wrongful termination, sexual harassment, and a multitude of other workplace conditions they deem unfair. As a result employee rights is quickly becoming one of the fastest growing areas of litigation activity for plaintiffs attorneys.

But not everything is coming up roses - in this post-Reagan, tort reform, anti-labor, era, many jurors enter the courtroom automatically biased in favor of businesses and against plaintiffs. The Wall Street Journal reported this phenomenon in an April 1992 story: "Jurors generally were predisposed in favor of business defendants before trial and rarely subjected them to the same level of scrutiny faced by plaintiffs."

Employment law attorneys who represent plaintiffs are presented therefore with a vexing conundrum: an opportunity to bring more cases to trial, but also possibly to lose more of these cases to pro-defense, anti-plaintiff jurors. It is vital for plaintiffs' attorneys therefore to determine, prior to oral argument, which jurors will be unable to objectively evaluate their cases, and to de-select such jurors accordingly. As a result voir dire planning has become, for many employment lawyers, an increasingly critical component for any trial.

What makes for a successful voir dire in an employee rights case? The techniques for planning and conducting voir dire in such cases are basically no different than for other typical forms of litigation. Let's take a look.

Some misconceptions

It is odd but many seasoned trial attorneys approach voir dire as if they don't know what it is about. Voir dire is the attorney's precious and sole opportunity to intelligently determine who the prospective jurors are, what their attitudes and opinions may be, and how they feel about the key case issues. Yet many attorneys mistakenly organize voir dire not so much to learn about the jurors but rather to indoctrinate them to accept a particular version of the case; to lecture them on abstruse points of law and courtroom procedures; to grill them with close-ended questions that permit only rigid "yes" or "no" responses revealing little; to treat them almost as job applicants; to routinely question their ability to be "fair" and "unbiased"; and to blindly categorize them according to an ever-changing set of largely meaningless demographic criteria - age, sex, religion, ethnicity, along with other often misleading factors such as body type, mode of dress, even style of expression. It should come as no surprise that voir dire conducted along these lines seldom provides much reliable information or valuable insights about the prospective jurors.

Value beliefs

Attorneys need to quit worrying so much about demographics. Objective, observable variables are actually the least predictive of jury behavior and verdicts. Instead, attorneys should concern themselves with jurors' value beliefs for it is these factors by which the jurors will ultimately judge the case. Value beliefs are the bedrock principles and codes that people hold most dear, i.e., the internal standards that all of use to determine what is proper behavior from what is not. They are often expressed through the use of such words and phrases as "should," "must," "ought to," or with such terms as "everyone" and "anyone." For example, "anyone who objects to sexy pin-ups in a locker room is just being way too sensitive." The key in voir dire is to get panelists to clearly identify their primary value beliefs, then de-select those members whose value beliefs run counter to your case.

Litigation research

The attorney who begins voir dire without first conducting litigation research is like the pilot who tries to fly his plane blindfolded through a storm: neither is likely to successfully end up where they want to go. Litigation research - i.e., jury focus groups and jury simulations, along with litigation intelligence surveys (pre-trial polling) - enable the attorney to use hard data instead of hunches regarding how he or she should plan voir dire (and the entire case), the specific questions to ask the venire, and which jurors should be de-selected.

The way litigation research works in terms of voir dire is straightforward: the attorney may employ litigation intelligence surveys, plus jury focus groups and jury simulations to discover the particular negative and/or biased beliefs and attitudes that are likely to affect his or her case, and then designs his or her voir dire questions to provoke the same type of negative responses during voir dire. It's just like flushing ducks out of the marshes with a duck call.

Litigation research is particularly useful to help set up biased jurors for cause. Let's say your research has established that some jurors may feel obligated to support the company regardless because it operates a large local plant that is a primary employer in the area, and an unfavorable verdict could negatively impact its overall operations. Armed with this valuable insight, the attorney can then plan his or her voir dire questions to specifically spotlight jurors who think this way, and who thus will find it difficult to weigh the plaintiff's case objectively.

Converse with the jurors

Voir dire is your one and only opportunity to speak with the jurors, and at the same time let them speak with you. Let's say the case concerns sex discrimination. Using open-ended questions, ask a particular juror how he or she feels about this general issue - i.e., "please tell us your thoughts and feelings about the issue of discrimination against women." Once you have received your answer, quickly ask another juror if he or she agrees with what was said and why. See if anyone else wants to volunteer an opinion. Then poll the remaining panelists to determine how each feels about the topic. Be sure and thank each juror for his or her response, whatever it may be.

The idea is to promote a free-wheeling and open discussion among the jurors in which they can weigh in with their opinions, pro or con, regarding the key case issues. If the attorney can forecast the conversation because he or she has already simulated the case through litigation research, then a similar conversation can be conducted with the panel members during voir dire.

Listen carefully to the conversation that develops as the jurors take up the issues you have raised with them, and they are raising with each other. Understand that this conversation is your best clue regarding how the jurors will eventually deliberate with each other later to reach their verdict. When voir dire is handled thusly, it doesn't take an Einstein to determine who is most likely to support your case, and who will be against it. De-select accordingly.

Avoid the "psychocentric" juror

Psychocentric jurors are the type of people who personalize all issues and negatively judge differences in consequences of equivalent actions. For example, a psychocentric juror may not be inclined to support a plaintiff who is suing for wrongful termination because, "I lost a job once before too, but I didn't make a federal case about it." Since the psychocentric juror believes that the world revolves around him or her, it is very difficult for such a person to be able to identify with anyone else. If the psychocentric juror was ever in a situation even remotely similar to the litigation complaint of the plaintiff but received little or no recompense, you can bet that he or she will crawl naked over broken glass before coming to the aid of the plaintiff.

Don't forget about supplemental juror questionnaires

Supplemental juror questionnaires (S-J-Q's) help increase the likelihood of self disclosure and can provide a strong foundation to challenge for cause. The jurors' written and signed statements concerning their basic attitudes and beliefs are down there clearly in black and white - and thus less open to interpretation. They are particularly useful in federal cases where the judge often handles all of the voir dire questioning of jurors.

S-J-Q's furnish comprehensive portraits of the jurors - who they are; what their backgrounds and their life experiences may be; and most importantly, what they think and feel regarding the primary case issues. And since S-J-Q's are court affidavits that must be signed under penalty of perjury, jurors are compelled to answer them honestly.

The bottom line on voir dire

Many attorneys approach voir dire with a sense of depredation. They are not in control of the proceedings and this fact makes them uneasy. They worry about a negative juror "contaminating" the others with his or her biased thinking. They're not sure if they have made the right choice about the jurors they are de-selecting, or the ones that remain.

For the attorney who truly understand voir dire however, these worries are largely needless. No, you can't control voir dire...but that's OK. You want the panelists to speak openly and freely, so you can learn who they are and what their attitudes and opinions may be. Indeed, the ideal is to promote a no-holds-barred conversation among the panel members, so you can see how each truly thinks and feels about the key case issues.

And don't worry about contamination; the chance of this occurring is very slim. The mere statement of a particular belief by one juror during voir dire is highly unlikely to suddenly change the minds of the other jurors.

The key to voir dire is to keep it simple. Remember: most people love it when they get a chance to speak their minds, to voice their attitudes and opinions. Many however seldom get that chance, due to work, societal, and similar pressures. Capitalize on this sociological phenomenon. Plan voir dire so the panelists clearly understand you want to hear exactly what they have to say about the primary case issues. Then be quiet, let them speak, and judge each panelist accordingly. That's all there is to it.

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Amy Singer, Ph.D., litigation psychologist and trial consultant, is founder and president of Trial Consultants Inc. (jury research and trial preparation), Litigation Consultants Inc. (America's first "litigation think tank"), The Institute for Settlement Sciences Inc. (settlement intelligence services), and The Institute for Trial Consulting Inc. (training others to become trial consultants), all based in Fort Lauderdale. Dr. Singer is a nationally recognized authority in the field of litigation psychology, a discipline she helped pioneer; and is considered a visionary leader in employing the tools of behavioral science, applied research, and psychological analysis to develop winning courtroom strategies and tactics for clients across the country. Phone: 954-525-9662.