By Leonard Bucklin

Excerpted from Building Trial Notebooks

In some jurisdictions, a short jury questionnaire is sent out to prospective jurors with the request that they answer the questions and return the form to the court. Usually the form is short and demographic in nature. Name, address, age, employment, and education are the questions commonly asked in court-generated questionnaires. That information is better than nothing, but such questionnaires usually leave out questions on relevant attitudes.

The juror questionnaire is a commonly neglected tool in trial strategy. Even in important cases, trial lawyers rarely fully use the capabilities of the juror questionnaire in exposing bad jurors. The reasons for non-use are probably the following two: it is work to develop a questionnaire from scratch; and litigators who have not used a juror questionnaire see it as a relatively low-priority item.

Those two reasons are not going to apply to you. We are taking most of the work out of developing a questionnaire to give to the judge by giving you a basic format (with directions and discussion) that can be easily customized for your case. As to the second reason for non-use (thinking a questionnaire is a low-priority item), I want you to consider with me the following facts about the uses of a written questionnaire: how a juror reacts to a written questionnaire, and what the responses may show.

Advantages of Using a Written Questionnaire

Even if the judge allows you to conduct the voir dire, the advantages of also using a juror questionnaire include the following:

  • A written questionnaire ensures you get the same information about each juror in the entire pool.

  • A written questionnaire helps when voir dire time is limited. The questionnaire ensures you get basic needed information about each juror in the entire pool — even if the judge restricts your voir dire time and cuts you off when you still have several jurors who have not orally answered any questions.

  • A written questionnaire enables you to get more in-depth information about each juror.

  • A written questionnaire helps flush out information from jurors who are reluctant to talk in open court.

  • A written questionnaire draws out more honest responses. (Not the same thing as the previous point.)

  • A written questionnaire minimizes the risk of contamination from one juror convincing others of a position opposite from your interests.

  • A written questionnaire ensures key questions on your selection model are asked of each potential juror.

You will get much more information if you combine oral voir dire with a written questionnaire. Show-of-hands questions don’t tell you much about your future decision makers. Yes/no answers on a follow-up to a show-of-hands question don’t tell you the fervor or emotion with which the juror holds the opinion. For example, consider three male potential jurors in a gender discrimination case. One is a man who has not thought about the matter of gender discrimination but believes it is politically correct to say in public that women are not given opportunities equal to men. The second man has seen raw discrimination, knows it exists and holds that belief with great warmth and intensity of emotion. The third man thinks that no business today discriminates against women — it does not exist at all, he thinks — but believes it is politically correct to say in public that women are not given opportunities equal to men. All three men give the same “Yes” answer in open court to the question whether gender discrimination against women does exist. Yet you really have a “Yes,” a “Don’t Know,” and a “No.” A written questionnaire is more likely to produce real information you can use in making choices about the depth of feeling of a potential juror.

A written questionnaire is a relatively “safe” place for a juror to answer questions. The juror does not expect that the other jurors are going to see the answers, but rather only a group limited to the judge and the attorneys. Further, most people feel that they are “like the majority of people,” so their responses to a written questionnaire are not generally going to make them stand out as “different.” In contrast, social pressures in court can be overwhelming to a juror. Now, in court, looking at the dissimilar persons around him/her, a juror realizes his/her answers may be different than the rest of the group, and also that two attorneys with adverse attitudes are looking at him/her. Typically, jurors feel more direct social and personal consequences from their responses to oral voir dire than they do from their written questionnaire responses. That is why responses within the juror questionnaire sometimes are at odds with responses to oral voir dire. When the oral and written responses do not “fit” with each other, you are getting a clearer view of what is really going on inside the juror’s head. The juror questionnaire is letting you effectively gauge jurors’ attitudes.

You can include questions in a questionnaire that you wouldn’t dare risk asking the entire panel. Some questions run the danger of answers that encourage an entire panel to start off with the wrong feeling toward your side; e.g., “What do you think about personal injury lawyers [or claims adjusters, if you are defending a bad faith case]? Why do you feel that way?” Asked in the open courtroom, you can get a 3-minute horror story that will have the entire panel wondering how honest you or your client is.

Some questions are just too personal to answer comfortably in a large group setting; you can just feel the intake of breath in the courtroom; e.g., “Have you or anyone in your family lost sexual ability for a period of time?” In many cases, you will want to ask questions such as whether the juror recently lost a loved one, has ever witnessed a serious accident, or has lost a loved one to cancer. A good follow-up question to these sensitive questions that works well on a questionnaire but not in open court is, “How affected are you by this today?” The responses in open court to that follow-up question are likely to be short, neutral, and give you little choice-making information. On the other hand, a written response is going to give you more information, both by its content and also by how detailed or long the description is.

In complicated cases, such as complex engineering testimony cases, it may be crucial to determine the information processing styles and capabilities of jurors. The handwritten responses in a juror questionnaire provide information on how meticulous and comprehensive prospective jurors typically are in their use (or at least their reporting) of information they know. For example, suppose the information processing ability of jurors is important to you in a case. Instead of a written question asking “What is your job and what do you do?” you can ask a question that reveals the precision, thoroughness and detail a prospective juror uses, such as:

Question: Please list your last three jobs, including the employer, the positions and duties held, and the length of time on each job.

You can safely assume that — in general — jurors with better attention to detail will be more accurate with titles (e.g., will include “Inc.” after the employer name, or give the job description and title of their position); more comprehensive in the description of their work duties; and more precise with their dates of employment. Your ability to gather information about information processing abilities of jurors is much better with handwritten responses than rushed oral voir dire responses.

The words chosen by a juror in answering questionnaire answers may be as important as the answer itself. For example, in an employee discharge case, jurors who say they know great amounts of information about employee rights may be revealing a “know-it-all” response pattern coming into the project. That is, a know-it-all juror would generally answer in the last response category (very) to a voir dire item such as the following:

How familiar are you with the local community attempts to attract new business to come here?

not at all / a little / somewhat / quite / very

A “very familiar” answer may not accurately reflect the actual amount of information known by the juror at all, but it may reflect the person’s attitude toward others or judgments based on hindsight rather than actual information. Thus, it may be predictive of orientation in a case where it is an individual suing a new business for not having spent the money to make the premises safer. In other words, the juror’s belief about his own knowledge may be predictive about attitudes. The most dangerous jurors in some cases — those responding in the most extreme category (the “know-it-all” jurors) — can be most reliably identified with the aid of a questionnaire that offers at least two questions with “know-it-all” choices in the responses.

Jurors with strong opinions typically are more likely to use extreme multiple-choice response options in a questionnaire, even though they will use less extreme positions (or claim “no opinion”) in oral statements in open court. Sometimes you may even find a juror who will pick the most extreme position in a written response scale, but when questioned about it in oral voir dire in front of other jurors, will say he/she made a mistake on the written form. Jurors with extreme attitudes may not be apparent at all without the use of a juror questionnaire as a double check. To find extreme juror attitudes, a simple “favorable/unfavorable” choice as a response option will not accomplish the intended purpose.

Let’s take an example. Suppose your client is well-known, or the case involves items typically associated as “lawsuit abuse.” Then whether you are the plaintiff or defendant’s attorney, you will want to ask written questions such as these. These questions flush out the extremists in a way that oral questions will not. (Plus there is the benefit that you get the information on each juror without having to bore everyone to death asking the same question orally.)

What is your opinion of [your well-known corporation]?

q   very favorable

q   favorable

q   somewhat favorable

q   somewhat unfavorable

q   unfavorable

q   very unfavorable

     — Why do you say that?

How many doctors do you think stop delivering babies because of lawsuits?

none / a few / many / a large number

There is one difficulty with using a written questionnaire to find persons with extreme positions. That difficulty is that both you and also your opponent want to find who are the “keepers” you want to keep, and who it is that you want to strike. Whomever the questionnaire shows has an extreme position in your favor is going to be one that the other side is likely to strike, and vice versa. But, it is a two-way street, so both you and your opponent wind up with a jury without persons holding extreme positions. That is better than not knowing the kindly lady in the blue dress is going to kill your case if she gets on the jury.

Using a questionnaire helps you make better decisions about alternate jurors. Alternative jurors are the persons chosen to become jurors if one of the jury becomes sick or otherwise unavailable before jury deliberation begins. Choosing the alternatives tends to come after the full panel of jurors expected to try the case has been chosen. The tendency of a judge is to push you into choosing alternative jurors quickly. Because you want to get into the “real trial,” you tend to question possible alternate jurors hastily, and as a result, selection decisions are made with inadequate information. At least with a jury questionnaire, you have the basic information available.

Writing the Right Questions

The most effective juror questionnaires have behind them the efforts of a professional jury researcher, who has done empirical research conducted in the venue, which explicitly identifies the characteristics of bad vs. favorable jurors for making decisions in your case. If you can afford it, and the case justifies it, you will be well served by one of the many professional jury selection experts available.

But in most cases, you are not going to be spending the money for professional jury research. Preparing a questionnaire is not overly difficult. You don’t have to have a jury consultant. General sources of questions are Bennett’s Guide to Jury Selection & Trial Dynamics, and Jeffrey Frederick’s second edition of Mastering Voir Dire and Jury Selection. Another general source for questions is the website of the jury consultant firm of Zagnoli McEvoy Foley, found at www.voirdirebase.com, where you can download some good questions for a price. If you are working on a budget, you can download questionnaires from the Internet. In any event, questions selected from elsewhere are only the beginning; you need to decide exactly what to use for your case and your parties and customise the form to fit your case.

The job of thinking up the questions to ask on a juror questionnaire is something a lawyer can do. You use your own logic and experience to think of the characteristics of bad vs. good jurors for making decisions in your case. Some characteristics are readily thought of by you (e.g., employment-related variables, income levels and ethnicity). Let’s call those characteristics that are associated with who the person is and what he/she does the status characteristics. It will take you more time and thinking to identify the predictive variables represented by deeper beliefs, values and attitudes held by the individual. Let’s call those the values characteristics.

The status characteristics are not the same as the values characteristics. The values characteristics are the most important in identifying the bad jurors. Let’s take an example. You may have come to the conclusion that 90% of Mexican-Americans who work in non-executive jobs will favor a shopper who slips and falls in a grocery store on a wet spot. But when you come to a Mexican-American on the panel you only know the status characteristics. You do not know if you are faced with one of the 10% who is not going to favor the shopper. You are only going to know if you have one of the 90% or one of the 10% by probing the deeper values characteristics. So your questions in a questionnaire should always include questions that will give you values characteristics.

Questions used on a questionnaire can be phrased differently than questions asked in open court. It is easier to use categories that flush out the extreme and reveal emotional responses. You can write questions with at least four categories of response (rather than just “yes/no” or “agree/disagree”) to find the jurors who are on the extreme. It is best for you to use four categories of response with attitude statements, usually asking for the person to choose among:

strongly agree / somewhat agree / somewhat disagree / strongly disagree

This range of choices forces jurors into one of these four categories. You do not want people to be able to retreat into “no opinion.” However, some courts will be more receptive to attitude questions if you add a fifth response of “neutral” or “no opinion.”

Here are two questions, using the range of choices (including the neutral option you may want to omit), that you should always ask in a questionnaire. These two questions are highly predictive of attitudes and values. Asking these two questions in a questionnaire removes possible courtroom peer pressure to conform to the juror’s idea of the norm for those sitting around the juror. You want accurate and honest information on these points. The first of these questions is:

What do you think about the number of lawsuits filed in recent years? (Please circle your response.)

much too high / somewhat high / about right / somewhat low / much too low

The second is:

How do you feel about the amount of money damages awarded in lawsuits today? (Please circle your response.)

much too high / somewhat high / about right / somewhat low / much too low

Be aware that if you are on the plaintiff’s side, it is important on these two questions to have more than the three choices “high / about right / low.” If offered only three choices, these days, perhaps 80% of people are going to choose “high.” On the plaintiff’s side, you are not going to be able to get the judge to excuse 60 – 80% of the panel for cause, and you surely do not have enough peremptory strikes to do that, and you probably do not have enough time to ask detailed questions of 80% of the panel. So, it is imperative that you identify the real extremists against you. You need to offer a choice between an extreme “much too high” and a milder “somewhat high” opposition to plaintiffs.

On the other hand, if you are on the defense side, you may want to only offer three choices “high / about right / low.” These days, perhaps only about 5 – 10% of people are going to choose “low” on a three choice scale. That is a small enough number so that you do not need to differentiate. You get your information on who are the small number against you, but it does not give the plaintiff’s attorney the information she needs to sort out the large number in the “high” group.

Here is a set of three questions you probably want to use in any personal injury negligence litigation.

  1. Can you think of an example in your life when an honest mistake has been described as negligence? Briefly explain.

  2. Have you ever had an injury, property loss or financial loss as a result of someone’s negligence? If so, describe the circumstances.

  3. When a person has been injured because of the negligence of someone else, in most instances, money is the only form of compensation that a person can seek under our system of justice. Do you think that is a good system? Why or why not?

Here is a set of five questions you probably want to use in any contract dispute litigation.

    1. Have you ever negotiated any kind of contract? (Even if you are not in business, you may have negotiated when you bought a house or car.)

      • If yes, what type of contract was it?

      • Was the negotiation an unpleasant experience? Why?

      • Did the negotiations turn out to your satisfaction?

    2. Have you ever been involved in a negotiation, or in a contract, where the parties disagreed later?

      • If yes, what happened?

      • Was the disagreement resolved to your satisfaction?

    3. Do you believe written agreements are more valid than oral ones? (Circle your answer.)

strongly agree / somewhat agree / somewhat disagree / strongly disagree

— Why do you feel that way?

  1.  Have you ever been “taken” on a written agreement or contract?

  2.  Are you more likely to rely on written agreements or oral agreements? (Circle your answer.)

strongly agree / somewhat agree / somewhat disagree / strongly disagree

— Why do you feel that way?

Remember that although you want information, you need to construct a questionnaire that is not unfair to the other side. You’ll be ahead in getting the judge to use your questions if you get opposing counsel to agree to the use of a questionnaire and to the contents of it. Besides, the judge does not want to have the court handing out something that looks prejudiced toward one side!

Sometimes attorneys will shrink from 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:

Do you feel trucking companies put profit ahead of the safety of the public?

How important is it that a truck driver follows all safety regulations in handling his truck?

An attorney might be afraid that these types of questions will plant a seed in jurors’ minds. Our experience agrees with the advice of jury consultants. Such adverse preconditioning by the question is minimal and is greatly offset by the information gained from the question. If the issue 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 think they know which attorney submitted the question and will then hold it against that party. For example, in cases involving a divorced plaintiff, attorneys may be hesitant to ask jurors how many times they have been divorced. These concerns about jurors’ reactions to the questions do not give enough credit to the jurors. As a rule, jurors are not that naïve 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 judge. Few jurors doubt the appropriateness of a question when it has the authority of the court behind it.

Using the Questionnaire

Getting the court to use a questionnaire — that includes your questions.

In some jurisdictions, the court already uses its own standard questionnaire for all cases. In those jurisdictions, what you want to do is convince the court to either add your questions to the court’s established questionnaire, or have the jury panel answer the additional questionnaire when the specific panel reports to the courtroom.

There are times that the court has made clear that it does not favor use of a questionnaire, and you feel the risks of displeasing the judge by pursuing a request for a juror questionnaire are greater than the potential benefits of a questionnaire. If that is your judgment, stick to your judgment.

However, if the court does not already use its own questionnaire, most judges are agreeable to looking over your proposed questionnaire and then deciding if it is “worth our time and the jury panel’s time” to use it. Every state survey that I have seen shows that most judges at least will consider using a juror questionnaire if it is proposed to them. 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. Your job then is to convince the court that a questionnaire will both save time and produce a better jury.

A written questionnaire can reduce the time required for voir dire. Sell it to the judge that way. Argue that a juror questionnaire expedites the entire voir dire process and makes it more efficient. Point out that fundamental questions related to employment, experiences and bias issues connected with cause challenges information will be obtained by the time the venire walks in. Oral voir dire can then be limited to streamlined, specially targeted follow-up queries.

When judges resist administering a questionnaire, it is usually because they consider it a waste of time. These objections can be reduced by designing a shorter questionnaire. For example, if the judge herself routinely asks the obvious question of occupation, this question can be left out of your printed form questions. You can also prepare several versions of a questionnaire to be considered by the court. Develop first a set of the most important questions, and add to it additional questions in each succeeding version.

In those cases, where the judge needs to be convinced to use a questionnaire, a great deal depends on whether both sides want to use a questionnaire and have agreed on the content. If possible, get opposing counsel to agree to the content of the questionnaire well before trial. Send your first draft of the questionnaire to opposing counsel four to six weeks in advance of trial.

Before the trial date, send a copy of your proposed questionnaire to the court with a request that it be considered at the pre-trial conference or otherwise. It is important to submit a proposed juror questionnaire to the court as early as possible. If the other side is going to submit its own proposal, you want to have the first proposal. Judges do not want to take the time to construct their own combined version when they can choose one of those submitted. Often judges put the burden on the second attorney to demonstrate why his/hers should be used instead of the first submitted. The same is true for individual questionnaire items: first proposed on the subject usually wins. As we have discussed, the wording of the question and the manner in which response options are formatted can do much to reveal a particular type of juror. You want to have your question in to the judge first.

Once the judge has ruled that your questionnaire can be submitted to the jury, work with the court personnel on when it will be given to the juror panel, how the original responses will be copied, and when copies will be available to you. All too often, the juror panel is not given adequate time to fill out the answers because the bailiff thought he was supposed to hand them out only after the last, late, possible juror was seated in the courtroom, instead of being mailed out 15 days before the panel was to report. All too often, blue paper was used by the court clerk for the original, so photocopies are illegible. And you certainly do not want to have to wait to see the responses until after the judge has found the time and inclination to look at them!

If the jury questionnaires are completed in the courtroom, the lawyer should complete one as well. This is a way to humanize yourself in front of the jury. Even if the jury questionnaires are not completed in the courtroom, fill one out yourself and use it as an example of why you need honest answers to your oral voir dire. E.g., “I filled out one of these questionnaires and answered that I went to college. But it doesn’t show that I had a roommate that studied traffic engineering, so I think I know some traffic engineering. I would use traffic engineering in deciding an auto accident case. Now, Mr. Jones, your form shows you work for the ABC company, but I would like to know if your work involves safety rules for the place where you work.”

Let us assume that the judge does use a questionnaire (either hers or yours) and it is available before the jury voir dire begins. As soon as it is available you need to make sufficient copies of the jury questionnaires so that everyone in your office that will participate in the voir dire has a copy, plus a copy for the client. Everyone should participate in reading the answers, including the client. Although you are in charge of making the ultimate decisions on use of your strikes, being able to talk with others on your team before you make those decisions will sometimes make your decisions easier.

As everyone on your side reads, have them use a uniform system of notations. That way there will not be a chance for confusion, plus if there is not time for you to read through all of them before you must do the oral voir dire, you can glance at the notes made by others. For example, everyone can yellow highlight good points, red underline points that need to be followed up, write facts gleaned elsewhere (e.g., address of the juror) at the bottom of the first sheet, and always write only ultimate conclusions about the juror on the upper right of the top sheet in the questionnaire response by the juror.

Give yourself time to examine the answers to the questionnaires before you begin the oral questioning. When you have agreed upon a questionnaire that is more than a couple of pages long, consider asking the court to mail it out to the panel 15 days before trial, with postage paid envelopes to have responses mailed back to the court. Or consider asking the court to have the prospective jurors brought to court to complete the questionnaire in mid-morning (while you take up pre-trial motions with the court). Have the panel members report back for oral questioning in the early afternoon. The point is that you want to have an opportunity to examine the answers to the questionnaire before you begin your oral questioning.

TIP:

The bare list of jurors in the panel is available before any questionnaire returns are available. In small population counties, that list may be available a month before the trial date. In large population counties, where hundreds of persons report to the courthouse and then are divided up to go to individual courtrooms for the day, that list will be available at some point. That bare list of jurors has some informational value. As soon as it is available, get it. You may as well use this list to get a running start on selecting jurors.

Look over your copy of this juror list, which usually has both names and addresses. Names, of course, may alert you to problems or benefits of a juror, especially in smaller population counties. Do not overlook addresses. Addresses may give you clues to status characteristics of the potential juror. Jurors living in relatively close proximity may be an influence on their thinking if both are chosen as jurors, or may be important in civil rights or environmental litigation.

If you get the juror panel list well before trial, send the client one copy of the juror panel list. Tell the client: “Enclosed is a jury list for the term of court in which your case may be tried. Please look it over. If there are names of any people you know and feel would be good or bad jurors on your case, or whom you know for any reason, make a note about it on the sheet and return it to me.”

§19.10 Form: Basic Jury Questionnaire

Download theBasic Jury Questionnaire in Microsoft Word.

§19.11 Form: Jury Questionnaire, Bodily Injury Cases

Download theJury Questionnaire, Bodily Injury Cases in Microsoft Word.

 

 

§19.12 Form: Jury Questionnaire, Breach of Contract Cases

Download theJury Questionnaire, Breach of Contract Cases in Microsoft Word.

 

 

§19.13 Form: Jury Questionnaire, Product Liability Cases

Download theJury Questionnaire, Product Liability Cases in Microsoft Word.

 

 


Leonard Bucklin has been elected a Fellow of the International Academy of Trial Lawyers, which attempts to identify the top 500 trial lawyers in the U.S. He served as a Director of the Academy from 1990 to 1996. He is also a member of the Million-Dollar Advocate’s Forum, which is limited to plaintiffs’ attorneys who have won million or multi-million dollar verdicts, awards, and settlements.

On the other side of the table, Mr. Bucklin has been placed in Best’s Directory of Recommended Insurance Attorneys as a result of superior defense work and reasonable fees for over 35 insurers. His legal experience spans 40 years, and has been balanced between commercial and personal work, between office practice and litigation, and between plaintiff and defense work. He is the author of Building Trial Notebooks, from which this article is excerpted.