The 3-Step Home Run Formula To A Successful Plaintiff’s Jury Selection In Breach Of Contract Cases

You have a strong breach of contract case, but what's the best way to present evidence to the jurors? The Home Run Formula removes all the guesswork.You know you have a strong breach of contract case, but what is the best way to present your evidence to the jurors? What techniques, language and demonstratives will be most persuasive?

Today, with the help of trial expert, Dr. Karen Lisko, we’ll explain how to simplify jury selection in breach of contract cases.

This strategy has been developed after 22 years of observing hundreds of mock juries and conducting post-trial interviews with actual jurors. With this systematic formula, all the guesswork involved in the plaintiff’s jury selection, one of the most daunting phases of trial, will be removed.

In this post, we’ll break it all down for you, step-by-step, so you have an easy-to-implement blueprint to use in your next breach of contract case.

How the Home Run Formula Takes The Guesswork Out Of Jury Selection In Breach Of Contract Cases

When selecting a jury in a breach of contract case, the Home Run Formula will help you:

  1. Determine which criteria will illuminate bias against one’s case,
  2. Create questions that will evoke the most meaningful, honest responses, and
  3. Use jurors’ answers to narrow down your list of preemptory strikes in court.

The 3 steps involved in the Home Run Formula include:

  1. Designing a profile for jurors who will be risky for you in representing your client, the plaintiff,
  2. Choosing key attitudes and experiences you’ll want to discover through your questions to potential jurors, and
  3. Creating questions that ensure the most comprehensive responses from your prospective jurors.

Step 1: Designing a profile of risky jurors for the plaintiff

The following are three types of high-risk jurors who have qualities that will make them likely leaders on the jury during breach of contract cases. These jurors may be more outspoken in deliberations because they believe they have a better baseline understanding of the issues than their fellow jurors. This is because they typically share the following characteristics:

  • Are experienced in contract negotiation, administration, and/or enforcement
  • Have hired a vendor to provide services
  • Have been a vendor for client companies
  • Are well versed in breach of contract elements including the different types of breach of contract
  • Are experienced in marital or relationship counseling

While the characteristics listed above might be good for the plaintiff, it is important to be certain that pro-plaintiff attributes outweigh pro-defense propensities before leaving them on the jury.


3 Profiles of Plantiff’s High-Risk Jurors In Breach Of Contract Cases


Juror Profile #1: Contract Rigid in Making Exceptions

“Contract Rigid” jurors for the plaintiff are those who severely judge that party for having agreed to deviate from the contract terms at all. For these jurors, affirmative defenses to breach of contract do not exist. They possess some or sometimes all of the following traits:

  • Believe deviating from a business contract, even to make exceptions, hurts the parties’ business relationship in the long run
  • Have never deviated from a business contract to make exceptions
  • Generally read contracts word-for-word rather than skimming for meaning
  • Believe contracts and the law are more important than ethics and fairness
  • Believe more that “business is business” than “business should be fair”
  • Describe themselves as a parent who incorporates a more authoritarian style (aka “Do what I say because I’m the parent.”) with consistent follow-through on discipline
  • Describe themselves as politically conservative regarding social issues
Juror Profile #2: Contract Relaxed in Post-Exception Phase

Some jurors believe that, even if a party’s behavior contradicts the details in the signed contract, there are situations in which that behavior trumps the written terms of the contract itself. These jurors can be identified via some or all of the following traits:

  • Believe exceptions in business constitute legitimate precedent for future expectations and that there are defenses to breach of contract
  • Feel behavior subsequent to signing the contract should trump the contract’s written language
  • Feel too much emphasis is placed on contracts after they’ve been signed and filed away in a drawer
  • Use value-laden language, like, “I feel that,” “I sense that,” “It is not fair that,” “It is not right that,”
  • Feel that, in business, a company should put its customers’ financial interests ahead of its own.
  • Subscribe to the adage, “The customer is always right.”
  • Believe verbal conversations that contradict or update written contract language supersede the contract’s written terms (even when there is no written amendment to the contract or a breach of contract letter or breach of contract)
  • Have personally benefited from business exceptions, and have a positive view of anticipatory breach of contract
  • Believe volume discounters make ample money even with some shortfall
  • Have had good experiences with important personal relationships that have been significantly altered from their original understanding of the commitment and might see these as examples of remedies of breach of contract
  • Believe people see divorce as more of a tragic option than it needs to be
Juror Profile #3: Anti-Litigation

No matter what type of litigation is happening, these jurors have a generally hostile attitude toward any and all parties who file lawsuits. This hostility is usually apparent from the beginning of the jury selection process and is quantified in the following characteristics:

  • Believe plaintiffs bring suits out of greed, rather than out of a sense of justice
  • Believe monetary awards do little good for anyone
  • Strongly support tort reform
  • Believe he or she has had reason to sue in the past but would have never filed a complaint or breach of contract lawsuit
  • Are in a “high malpractice risk” profession (physician, attorney, corporate executive)
  • Have been sued before
  • Have religious and/or moral objections to civil lawsuits
  • Have an extra-heightened sense of personal responsibility and cannot envision any circumstances under which one person should be held responsible for the bad acts of another
  • Have a high internal “locus of control” (aka he or she tends to believe most events that occur are within their control)
  • Majored in or specializes in hard sciences like engineering, mathematics, or the physical sciences.
  • Are employed in a highly analytical profession. For example he or she may be an accountant, auditor, or a statistician
  • Status inconsistent (combination of low education level and high status occupation)
  • Highly educated (college and beyond)
  • Higher-income

Step 2: Choosing key attitudes and experiences to identify through questions

In this age of shrinking time for oral voir dire, your profiling should focus primarily on anti-plaintiff attitudes that your prospective jurors may hold.

The obvious question then becomes “How do you identify the most meaningful criteria?” And remember: this will be criteria that apply only to breach of contract defenses and the interpretations of them.

Note: Be very careful about how much weight you place on the demographic characteristics in your high-risk juror profiles. Extensive research regarding a link between attitudes, demographics and damages awards rightly concludes that demographic characteristics are poor predictors of the awards, whereas attitudes are slightly stronger predictors but never as strong a predictor as the evidence.

Instead, start the identification process by choosing the key attitudes and experiences from the risky juror profiles above that you most want to identify through your questions. Then, using these traits as guidelines, attempt to determine which questions you are most likely to be allowed to ask by the court through either a written questionnaire or oral voir dire. Even if you find yourself in a court where you are only allowed to submit questions to the judge for him or her to ask orally, it is critical that you go through these first steps to ensure you are choosing your few questions wisely.

Written and oral voir dire questions should be developed with the goal of bringing out the key biases listed above. Asking open-ended questions that invite narrative responses allows you to listen for clues regarding such biases. You might learn, for example, many things by simply asking “What is a breach of contract?” to the group. Many jurors will be able to speak candidly about their attitudinal biases. Others will not. Additionally, if a juror exhibits numerous patterns of anti-plaintiff life experiences, you may be able to conclude he is a likely strike.

**In-Practice Tip: Mock research can be particularly helpful with contradictory profile elements.

When a profile rightly yields two contradictory jury mindsets in the same party, mock research is an immensely valuable remedy for determining which mindset should carry your focus during jury selection and the rest of trial.

Step 3: Creating questions that ensure comprehensive responses

Many treatises on effective jury selection recommend using an “either/or” approach whereby you either ask questions to the entire group or ask questions to individuals. Using an “either/or” approach is a bad idea because it reduces the quality of the information you collect, especially if you don’t have a lot of time for asking questions.

A better approach is the Triple-Layer Structure. This structure combines group and individual questions to achieve two important goals. First, the group-individual combination ensures you collect everyone’s general response to the attitudinal question. Second, the group-individual combination helps the venire to feel engaged given the variety of approaches to questioning. When done correctly, the Triple-Layer Structure hits the following marks:

  1. The tone of oral voir dire was informal and conversational.
  2. The format feels like you ran a focus group.
  3. Importantly, the prospective jurors spent more time talking than you did.

Let’s look at each layer individually.

Layer One: “Warm-Up” Question to Preview or Transition to Topic

This first layer is intended as an orientation question to ensure the venire understands the topic you are about to cover. It can be asked of an individual or broadcast to the group. Because it is not intended to collect meaningful information this layer should be limited to one or two quick questions. For example:

  • “Are you all familiar with the [general topic area] that has been in the news lately?” (group question), or
  • “Ms. Brown, let me ask you: Have you had the chance to catch the [general topic area] on the news lately?” (individual question)
Layer Two: Group Questions With Two “Clear Contrast” Choices

You must take great care in designing a group question to ensure that the choices you offer are distinct enough that the group can easily see a clear difference between them. You also want to word the question to allow you to clearly identify a “strikable minority” of jurors. To accomplish this, you might need to explain the breach of contract definition and to use more extreme language to polarize the different options like,

  • “How many of you strongly feel…?”, or
  • “How many of you would rarely if ever….?”

If at all possible, run an informal mock voir dire with jury-comparable participants for your breach of contract complaint case to test the quality of your questions’ language. The purpose of the mock voir dire would not be to collect attitudinal information stemming from participants’ responses and would allow you to road test sample questions and statements like:

  • “When it comes to this breach of contract definition, some people tend to feel ‘X,’ while others generally feel ‘Y.’
  • By a show of hands, how many of you tend to feel ‘X’? [for example “how many of you feel that this is a material breach of contract?”]
  • How many of you generally feel ‘Y’?” [Introduce pro-plaintiff option.]

You want to be certain that your options are clearly worded because hearing a question is a very different than reading a question. It takes practice to design questions that make just as much sense to a listener as to a reader. Mock voir dire can help you get that practice.

Layer Three: Individual Thematic Question That Invites Thematic Response

During Layer Three, you ask individual jurors a thematic question that invites a thematic response. Assume, for example, that you represent the plaintiff and that during Layer Two, you posed the more pro-plaintiff option last. Doing so enables you to smoothly transition into individual questions concerning that option. You do not want to ask follow-up questions to those who expressed pro-defense sentiments unless you believe you have the ability to set up a challenge for cause.

Instead, spend the individual follow-up time getting a few jurors to voice your pro-plaintiff themes. It’s true that doing so will illuminate a potential strike to the defense but don’t worry about that right now. The pro-plaintiff jurors will have been identified by the end of voir dire anyway. You can take advantage of getting defense strikes to educate the rest of the panel on your themes before they are excused. Here are two examples that work well.

  • “Ms. Smith, I noticed that you raised your hand that you generally feel ‘Y.’ Can you tell me a little about that?”
  • “Mr. Jones, what do you think about what Ms. Smith just said?”
Adjust for judge’s rules and preferences.

This triple-layer approach to voir dire questioning has proven to be very successful in a number of different jurisdictions. However, if you have an extremely strict judge who does not allow attitudinal questions, you may have to adjust your questions to be more benign.

**In-Practice Tip: Keep track of it all.

Ideally, you should have a second person at your counsel table (co-counsel, legal assistant, client, or trial consultant) to keep track of prospective jurors’ hand votes and responses. Absent that, simply explain to jurors that you will need a few seconds to note their responses. Jurors are typically quite willing to accommodate that need.

In summary, it’s important to plan ahead for your jury selection process, particularly in breach of contract law. While it’s true that there needs to be some room for improvisation depending on the pool you’re questioning, you never want to go in without a solid outline of the questions you need answered.

Now that you know how to prepare potential juror questions for you breach of contract cases using the Home Run Formula, you need to work to determine how best to present your breach of contract case evidence in a persuasive manner.

To learn more methodology, language, and to see a few examples of these techniques in action, download our guide: Persuading Jurors In Breach Of Contract Cases.

Dr. Karen Lisko, past President of the American Society of Trial Consultants, has observed the deliberations of hundreds of mock juries in the 22 years she has been helping attorneys develop case strategies. She has also conducted scores of post-trial interviews with actual jurors.

Adapted from Proven Jury Arguments & Evidence, by Dr. Karen Lisko.