How to learn juror attitudes and characteristics.

By Beth D. Osowski

Trial Preparation Tools

Excerpted from Trial Preparation Tools

During jury selection, simple demographics, such as age, gender, and ethnicity are typically very unreliable in predicting juror behavior. After thinking through the case themes, facts, law, witnesses, and strategies, you may want to develop your own profile of jurors who would be favorable and of the jurors to avoid. Following are characteristics that may be much more telling than simple demographics:

  • Leader

  • Experienced

  • Sensitive

  • Cautious

  • Humble

  • Idealistic

  • Creative

  • Sociable

  • Trusting

  • Calls expert

  • Pro-plaintiff

  • Talker

  • Read instructions

  • Civic-minded

  • Democrat

  • Half-empty

  • Follower

  • Naive

  • Impervious

  • Adventurous

  • Arrogant

  • Cynical

  • Logical

  • Shy

  • Suspicious

  • Do-it-yourselfer

  • Pro-defendant

  • Listener

  • Wing it

  • Selfish

  • Republican

  • Half-full

Discovering Attitudes and Experiences

Once you identify the likely themes, facts, legal issues, witnesses, and strategies involved in your case, identify the characteristics, attitudes, and experiences of potential jurors that you feel will be helpful or harmful to your case. Then you need to create a way to discover the characteristics and experiences of the potential juror. Some jurisdictions will provide answers to standard questions as to age, gender, occupations, and family members as a matter of course. If the case justifies the time and expense, you may also want to ask these basic questions in a juror questionnaire. See Form 4-02 in Ch.4.

Quick Tip: Although I cannot imagine not wanting to know about a potential juror’s occupation, education, and family–beyond those, I really do not have any questions I ask in every case. Do not waste time with questions without a set goal.

Easy Questions: Juror Experience

Questions about experiences are fairly easy. If you want to know about education, you simply ask, hopefully in a non-offensive way. If you want to know how many hunters or chess players or parents are in the venire, you ask for a show of hands and then follow up individually as needed. If you want to know if someone is more likely to read the instructions or to “wing it,” then ask whether they read the instructions as soon as they open the product to be assembled or if they wait until they are in trouble. If political party affiliation seems relevant, then you might want to simply ask. Prior injuries often seem to influence attitudes about an injured plaintiff. It is easy to ask about prior injuries, but tougher to understand their significance.

Jurors who have been injured can benefit either side, depending on their perspective. Some conclude that they or a loved one had an injury as bad or worse and were able to recover without suing anyone. Others are able to fully appreciate how disruptive continual pain can be to all aspects of life. Discover how they view the injuries, the treatment, and the recovery. Be especially inquisitive about similar accidents, injuries, and disabilities. Discuss any filed claims and lawsuits. Do not limit your inquiry to the juror, but also include the jurors’ friends, families, and acquaintances. Ask whether there was satisfaction or disappointment in the outcome, and attempt to uncover any potential biases for or against one party as a result. The following are sample questions and possible follow-up questions intended to initiate the discussion:

  • Have you, any member of your immediate family, or a close friend ever made a claim for personal injuries?
    If so, who was injured?
    Describe the nature of the injuries.
    What was the outcome of the claim?
    Was the injured person satisfied with the outcome?

  • Have you, any member of your immediate family, or a close friend ever been a party in a legal proceeding?
    If so, describe the nature of the proceeding.
    What was the outcome of the proceeding?

  • Have you, any member of your immediate family, or a close friend ever been a witness in a legal proceeding?
    If so, who was the witness?
    Describe the nature of the proceeding.
    What was the outcome of the proceeding?

More Challenging Discoveries: Characteristics and Attitudes

Characteristics and attitudes are more difficult to discover. There is also no precise test to determine what answers to certain questions will reveal as to attitude and values. Regardless, just getting potential jurors to talk about something other than cold, hard facts will be revealing.

As trial attorneys, we often talk about revealing a juror’s bias, so that a judge may permit a challenge for cause, or at the very least we will identify the jurors who should be the subject of peremptory challenges. Although the term “bias” is often used to suggest something derogatory, in actuality, we are all biased. We are all prejudiced. We all come to the courthouse with preconceived notions. Humans show partiality and demonstrate unfairness on a regular basis.

The key for voir dire is in identifying those particular biases that will be detrimental to our positions, themes, clients, and cases in general. Identifying bias in potential jurors is a process that is very specific to the case at hand. Attorneys should attempt to craft questions which get to the heart of the bias without explicitly asking if the jurors are biased (a question few will answer with a positive response). It is important that the attorney not appear judgmental. If we really hope for the jurors to reveal their deepest thoughts, they should not feel guilty for doing so.

Sample questions intended to elicit bias would be as vast as the number of existing biases. If the concern in a medical malpractice case is that a juror will side with the doctor as a default position, a reasonable voir dire question could be: “Do you feel that malpractice insurance rates are driving up the cost of health care?” If the concern is that a juror will not attribute the necessary responsibility to the defendant in an motor vehicle accident case, a question that gets to the concept of fate such as, “Do bad things just happen?” could give insight into a relevant bias.

Voir Dire Questions by Characteristics

Following are some possible questions you may want to try in order to discover which of the opposing characteristics listed above are more accurate:

Leader or follower:

  • Have you served in an elected position in any civic organizations?

  • Have you ever run for office/considered running for office?

  • Have you ever worked as a manager?

  • Do you dislike following someone else’s rules?

Experienced or naïve:

  • Have you traveled abroad?

  • Do you speak any foreign languages fluently?

  • Did you ever discover that you were the victim (or attempted victim) of a scam?

Sensitive or impervious:

  • Do you ever cry at sad movies?

  • Are you bothered by criticism?

  • Are you easily angered?

  • Have you ever given money to a homeless person?

  • Are you a lover of music, art, or animals?

  • Do you ever feel physically ill when others are in pain?

Cautious or adventurous:

  • What are your hobbies?

  • Do you take part in any activities excluded by life insurance?

  • Do you like wild rides at amusement parks?

  • Do you regularly read the warning labels?

  • Would you accept if you were offered a spot on your favorite reality show?

  • Have you ever asked your boss for a raise or promotion?

  • What is the wildest style choice you’ve made in the last year?

Humble or arrogant:

  • What is your biggest accomplishment?

  • Do you think that you intimidate people?

  • Are you confident in your opinions?

  • Do you consider yourself a specialist?

  • Are you competitive?

Idealistic or cynical:

  • Do you prefer movies with realistic or happy endings?

  • What do you think about astrology?

  • Have you ever had a lucky object?

  • Do you believe in fate or coincidence?

  • Is there such a thing as love at first sight?

Creative or logical:

  • What types of puzzles do you enjoy?

  • Have you played a musical instrument for longer than five years?

  • Who in the family helps the kids with math problems?

  • What was your favorite subject in school?

  • Do you like a wide variety of music or mainly one style?

  • Do you agree with the statement that most people take life way too seriously?

Sociable or shy:

  • Do you prefer solitude over social gatherings?

  • How often do you strike up a conversation with a stranger?

  • What is your idea of a great night out?

  • Do you try to avoid being the one to order pizza?

  • Do you have lots or few friends?

  • When being waited on in a restaurant, do you usually talk to the waiter about more than your order?

Trusting or suspicious:

  • Do you open all of your emails?

  • Have you hitchhiked in past five years?

  • How many friends do you consider close enough to you to share any secret?

  • Do you agree with the statement that you trust someone until given reason not to?

  • Do you agree that it is really easy to know if someone is lying?

  • Do you honestly answer personal questions when someone is taking a survey by phone?

Calls expert or do-it-yourselfer:

  • Do you buy products unassembled or pay more to have them assembled?

  • If you hear a strange noise coming from something, are you more likely to grab a tool belt or telephone?

  • How many tools do you own that plug in?

  • Have you ever remodeled a room in your house without hiring outside help?

  • Have you ever taken an appliance apart and then fixed it?

Pro-plaintiff or Pro-defendant:

  • Do you feel that it is okay for the plaintiff to be here, knowing she sued the defendant?

  • Do you think less of the plaintiff because she filed a lawsuit?

  • Is there anyone here who would never sue another person?

  • Do you believe that there are too many lawsuits?

  • Do you believe that lawsuits are costing us too much money?

  • Do you believe that jury awards are often too low?

  • Before hearing any evidence in this case, do you have a limit as to the amount of money you would award as damages due to an injury?

Civic-minded or selfish:

  • Do you read the newspaper daily?

  • Do you vote regularly?

  • What charities do you support?

  • Who controls the remote control in your house?

Democrat or Republican:

  • How do you feel about current administration?

  • Are you politically active?

  • What magazines do you subscribe to?

  • What news channel do you watch?

Half-empty or half-full:

  • Will the next generation be better off than the current one?

  • Are you looking forward to jury service?

Fall-Back Voir Dire Questions

Sometimes there are no specific questions that seem likely to reveal whether a potential juror has certain characteristics or attitudes. Other times, you just need some more creative ways to get your subject talking in order to help you establish rapport and to get a sense of the juror’s personality. Following are some general questions that may ultimately tell a lot:

  • What is your favorite television show?

  • What magazines do you subscribe to?

  • What is your car or home radio station tuned to right now?

  • What station is the television you watch most often turned to now?

  • What is your favorite movie of all time?

  • What do the bumper stickers on your car read?

  • What was your favorite subject in school?

  • Would anything about your religious beliefs make it difficult to assess causation?

  • Is there anyone who really does not want to be here today?

Beth D. Osowski represents civil litigants in many areas, including motor vehicle accidents, premises and product liability, medical and legal malpractice, contract and business litigation, construction disputes, will contests, real estate and landlord/tenant matters. In 2007, she received what is believed to be the largest jury verdict in her county’s history for a premises liability case.

She has presented many legal seminars as well as authored dozens of outlines for continuing legal education courses. Ms. Osowski ranked first in her University of North Dakota law school class all three years, and was awarded Moot Court Champion and Best Oralist. Ms. Osowski is the author ofTrial Preparation Tools, from which this article is excerpted.