Advanced Voir Dire and Jury Selection (Part 2)

by Brett Godfrey

Jury Selection Rules, Processes and Procedures

This material is designed to assist trial lawyers who wish to improve their understanding of the jury selection process, commencing with the procedural and substantive rules that govern, or at least affect, the manner in which an attorney conducts a voir dire examination, makes a record regarding the jury selection process, including but not limited to objections to the manner in which the opponent (or even the court) conducts jury selection, challenges for cause and the exercise of peremptory challenges. 

Many valuable checklists will be found below.

This article is principally concerned with the selection of civil juries, though most of what follows is applicable only to criminal jury selection. While most states employ different jury selection procedures in criminal trials than in civil cases, most of the law regarding the exercise of challenges, manner of questioning potential jurors and — most importantly, the psychology of jury selection2 — remain the same in criminal and civil cases.

Key Laws Affecting Jury Selection

The United States Constitution: Amendments VI and VII.

The Sixth Amendment guarantees the rights of criminal defendants, which include the right to an impartial jury. It has been most visibly tested in a series of cases involving terrorism, but much more often figures in cases that involve (for example) jury selection or the protection of witnesses, including victims of sex crimes as well as witnesses in need of protection from retaliation.

Amendment VI to the U.S. Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The Seventh Amendment guarantees the right to jury trial in certain kinds of civil cases. It provides:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Constitutional scholars generally consider the Seventh Amendment to be one of the simpler and least complicated amendments of the Bill of Rights. Although the Constitutional right to a civil jury has never been applied to the states expressly3, almost every state voluntarily complies with this requirement.4 The prohibition against judicial review of a jury’s findings of fact applies to federal cases, state cases involving federal law, and the appellate review of state cases in federal court.

Most states have enacted, by statute, constitutional amendment, judicially adopted rules or standing court orders and practice standards, a body of codified guidance governing jury service and selection that are generally similar from state to state, as well as being similar in most respects to the federal system (with the notable exception that state courts are generally more liberal in permitting attorney-conducted voir dire). Because a state-by-state tabulation of jury selection and jury service law is beyond the scope of this material, we will commence our analysis with federal statutes and rules pertaining to jury selection and jury service. Brief legal research will quickly identify the statutes and orders of your state that govern jury service and selection.

Federal Rules Governing Jury Selection and Service.

In federal court, selection of a jury in a civil case is governed by Fed.R.Civ.P. 47:

Federal Rules of Civil Procedure Rule 47 — Selecting Jurors

(a) Examining Jurors. The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.

(b) Peremptory Challenges. The court must allow the number of peremptory challenges provided by 28 U.S.C. § 1870.

(c) Excusing a Juror. During trial or deliberation, the court may excuse a juror for good cause.

And in criminal cases, by Fed.R.Crim.P. 24:

(a) Examination.

(1) In General. The court may examine prospective jurors or may permit the attorneys for the parties to do so.

(2) Court Examination. If the court examines the jurors, it must permit the attorneys for the parties to:

(A) ask further questions that the court considers proper; or

(B) submit further questions that the court may ask if it considers them proper.

(b) Peremptory Challenges. Each side is entitled to the number of peremptory challenges to prospective jurors specified below. The court may allow additional peremptory challenges to multiple defendants, and may allow the defendants to exercise those challenges separately or jointly.

(1) Capital Case. Each side has 20 peremptory challenges when the government seeks the death penalty.

(2) Other Felony Case. The government has 6 peremptory challenges and the defendant or defendants jointly have 10 peremptory challenges when the defendant is charged with a crime punishable by imprisonment of more than one year.

(3) Misdemeanor Case. Each side has 3 peremptory challenges when the defendant is charged with a crime punishable by fine, imprisonment of one year or less, or both.

(c) Alternate Jurors.

(1) In General. The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.

(2) Procedure.

(A) Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

(B) Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

(3) Retaining Alternate Jurors. The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.

(4) Peremptory Challenges. Each side is entitled to the number of additional peremptory challenges to prospective alternate jurors specified below. These additional challenges may be used only to remove alternate jurors.

(A) One or Two Alternates. One additional peremptory challenge is permitted when one or two alternates are impaneled.

(B) Three or Four Alternates. Two additional peremptory challenges are permitted when three or four alternates are impaneled.

(C) Five or Six Alternates. Three additional peremptory challenges are permitted when five or six alternates are impaneled.

3.  Federal Statutes Pertaining to Jury Selection and Service.

The federal statute pertaining to peremptory challenges that is referenced in Rule 47, above, states:

28 U.S.C. § 1870

In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.

All challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court.

Additional federal statutes prohibit discrimination in jury selection,5 challenging compliance with jury selection procedures6, the protection of jurors,7 and federal plan for random jury selection8 and the basic outline of the procedure for selecting and summoning juries.9

Rules and Procedures to Know 

The basic process of jury selection.

What have your potential jurors been through in relation to their experience as jurors before you meet them, and why should you care about this question? The simple answer is that, whether you realize it or not, before your jurors are seated to hear your case they will have been annoyed, intimidated, bored, insulted and their privacy will be invaded. They will often harbor significant resentment about the process by the time you commence your voir dire, which is likely to affect how jurors come across, how they answer questions and how they will relate to attorneys from the outset of the jury selection process. 

The most immediate and recent experience of your jurors with the system.

A person’s experience as a juror, leading up to the commencement of voir dire, is important for a trial lawyer to know and keep in mind, for it affects the way potential jurors view the process and how they are likely to answer questions during jury selection. It is important to understand the emotional arc (or trajectory) jurors follow before they are empaneled, which is when they will first transition from an emotional tone of irritated uncertainty to a level of curiosity and interest. The questions posed by an attorney can have a subtle but profound effect upon how the juror makes that transition. The simplest manifestation of this principle is found in the process of “breaking the ice,” at the commencement of voir dire to lubricate the free flow of information from potential jurors.

The process commences with the issuance of juror summonses by the jury commissioner of the court or county in which the case is being tried. Jury summonses are sent to citizens who are selected from voter registration lists, drivers license bureaus, property tax records and public tabulations of local citizenry. The jury summons is viewed by most who receive one as a cryptic, invasive, annoying and slightly intimidating document. It merely indicates one has been selected for jury service, and instructs that the recipient must report — under pain of law — to the court in question on a particular date and time. There is no information given regarding what kind of case will be tried, how long the trial will take, or even how the jury for a particular case will be selected. Jury summonses vary somewhat from jurisdiction to jurisdiction, but most resemble that which is shown below: 


When the potential juror arrives on the date set forth in the jury summons, she will be directed to check in at a window or desk and then guided to a waiting area where dozens, or perhaps hundreds, of other citizens are waiting to be called for a particular case. The sea of humanity that populates this area is something every trial lawyer should see, but few do. Most lawyers begin their experience with potential jurors after they have been allowed to stew in this pool for several hours. 

During this wait, jurors are sometimes shown introductory videos, featuring a speech by a judge or court employee outlining the basics of jury service, beginning with a very simplified overview of the history and importance of the jury system, sometimes covering rules for juror conduct. These rules often entail a directive not to discuss the process with anyone until it is over, avoiding direct contact with the lawyers, parties or witnesses in a case, avoiding newspapers, TV, radio and the Internet to avoid being contaminated with information that has not been judicially reviewed or approved, and information regarding how to communicate with employers regarding the mandatory nature of one’s jury service. These presentations often enumerate the qualifications for jury service, and provide a few hints on how to avoid jury service on the basis of legal disqualification, handicap or hardship.

Eventually the potential juror’s name is called as part of a list of 20-50 potential jurors who will be moved into a courtroom for jury selection in a particular case. In most courts, these large groups are herded onto elevators and guided by court staff to your courtroom, where they file in and fill the spectator benches behind the rail. Once seated there, the specific group of potential jurors called for your case will be given a brief introduction by the court and asked whether they fail to conform to the qualifications required above. Unqualified jurors are sent back to the jury commissioner with instructions. 

When that stage is complete, the venire is then selected.

Observing the panel before the venire is called forward.

The term venire usually refers to a list of individuals who are called forward to take a seat in the jury box, and in seats in front of the jury rail, to be questioned specifically. In most states, the venire will consist of the number of jurors, plus the number of alternates, plus the number of peremptory challenges to be permitted in total by all sides. Thus, if the court allows four peremptory challenges per side in a two-side case (a common number used in most state courts in civil cases), with plans to seat eight jurors plus two alternates, then eighteen people will be called forward. Twelve will usually fit into the jury box, and six more will sit in seats arranged just in front of the jury rail. The venire is now sworn in for purposes of responding to questions during voir dire; most courts swear in all persons sitting in the courtroom so that if a juror is excused during voir dire — which usually happens when one member of the venire is dismissed for cause — a replacement may be called from the general pool of potential jurors remaining behind the spectator rail in the courtroom. When the entire group is not sworn in in advance, replacement jurors are individually sworn before they are questioned individually.

It is during this process that the attorney begins to assess potential jurors. While some attorneys feel ill at ease when visually surveying the pool of potential jurors, for doing so appears odd if not done with discretion and often requires the attorney to turn in his or her chair, it is possible to covertly begin to closely observe the panel and note any remarkable indicators that will help the attorney in fine-tuning the voir dire and adjusting the emotional tone of his delivery to make it compatible with the apparent emotional state of the bulk of the panel. For example, if the panel appears surly or unhappy (which is often the case if the panel has been kept waiting for hours or if the court personnel with whom they have interacted is rude or unfriendly), then the attorney will have to “warm up the house” before expecting frank and candid answers from potential jurors. If a particular juror is dressed like a member of a motorcycle gang, is wearing a military uniform, has an oxygen tube up his nose, has food stains on his or her clothing, is coughing frequently or appears ill, is taking pills or drinking something out of a handbag, these are good things to have noted before the questioning begins. These observations may not be possible once the venire has been seated in the forward part of the courtroom, and may provide invaluable information to the attorney about to conduct voir dire and exercise challenges.

Questioning commences.

With the initial empanelment of the venire now complete, the court will generally commence the examination after providing some explanation of the voir dire process. In most state courts, this is done by directing the jurors to a poster listing topics they should cover in an introductory fashion, which generally includes such items as: 

    • Name
    • Age
    • Employment
    • Marital status
    • Spouse’s employment
    • Children
    • Hobbies
    • Favorite books, radio, television, movies
    • Friends in law enforcement
    • Prior involvement as party to civil or criminal case
    • Prior jury service

The members of the venire are asked to provide this information, while the court follows up on notable, unusual or incomplete answers. The court will often then ask whether any of the jurors is the primary caregiver for a disabled or incapacitated person or child, whether the jurors have any problem with vision, hearing or health that will affect their ability to sit as jurors for the expected duration of the case, and whether any of the jurors have other special needs, such as the need to use medications or medical devices during the trial.

Most courts will report the entire jury selection process. If the court plans to do so only if asked by one of the parties, be sure to make that request. Nothing is served by foregoing a record of an important aspect of a jury trial, unless you plan on conducting yourself inappropriately or know that your client will do so, which leads to the basic rule: Always ask for a record. Failure to do so may actually rise to the level of legal malpractice. If this seems to annoy the court, be propitiative and humble, but do not ever be intimidated into foregoing the making of a record.

Methods of tracking answers and impressions.

The process of jury selection presents the trial attorney with a case of information overload. The attorney must keep track of the names of the jurors, answers to questions and what they might signify, whether the juror is “good” or “bad” in the attorney’s opinion, and statements made by potential jurors that require follow-up. This process not only requires extensive note-taking (best augmented by another lawyer than the one conducting voir dire), but also keeping those notes in a fashion that allows a lawyer to immediately track the same for each juror in a visual fashion.

Until the past few years, this process was almost always accomplished with the use of large charts and “sticky notes,” along with other notes, using symbols or color coding to aid in the determination of which jurors to strike and why, as well as information to keep track of for further record-making and fine-tuning the trial presentation. Now there are a number of valuable apps that work on iPads and other tablet computers that radically aid in this process.

Nuances of Jury Selection in Different Courts

Though the mechanics of jury selection generally follow the process outlined above quite closely, there are a few key variables encountered by trial lawyers operating in several different jurisdictions. This author has tried cases in many different state and federal courts throughout the country, and has found the key differences from court to court to include these criteria:

    • Whether the court conducts extensive questioning, or even allows attorneys to question potential jurors at all (though most now do, even in federal court)
    • Whether the court allows individual jurors to be questioned in open court where a juror is questioned on personal or unique issues, or requires the individual juror questioning to be conducted in chambers
    • Whether the court hears challenges for cause during the questioning or at the end
    • Whether the court hears challenges for cause in front of the jury, at sidebar or in chambers
    • Whether the court allows “mini opening statements” before or during voir dire
    • The number of jurors that will sit on a case
    • Whether the court will permit alternates to participate in deliberation (usually only allowed when all parties stipulate to the same)
    • Whether the court will sequester jurors
    • Whether the court will permit jury questions, which can affect how jury questioning is conducted by counsel
    • Whether the court will allow jurors to take notes, which will also affect how jurors are questioned by counsel, if time permits
    • How many peremptory challenges will be permitted (noting that the number can sometimes be much higher than the nominal minimum of three)
    • What audiovisual equipment is available in the courtroom, and whether the court permits any form of document or photo presentation during voir dire

The easiest way to learn the answers to these questions is to call the courtroom clerk and ask, or bring these questions up during the pretrial conference.

Grounds for Challenges For Cause

Qualifications of jurors in federal court are governed by 28 U.S.C. § 1865, which is substantially similar to nearly all state statutes on the same topic, and provides as follows:

(a) The chief judge of the district court, or such other district court judge as the plan may provide, on his initiative or upon recommendation of the clerk or jury commission, or the clerk under supervision of the court if the court’s jury selection plan so authorizes, shall determine solely on the basis of information provided on the juror qualification form and other competent evidence whether a person is unqualified for, or exempt, or to be excused from jury service. The clerk shall enter such determination in the space provided on the juror qualification form and in any alphabetical list of names drawn from the master jury wheel. If a person did not appear in response to a summons, such fact shall be noted on said list.

(b) In making such determination the chief judge of the district court, or such other district court judge as the plan may provide, or the clerk if the court’s jury selection plan so provides, shall deem any person qualified to serve on grand and petit juries in the district court unless he–

(1) is not a citizen of the United States eighteen years old who has resided for a period of one year within the judicial district;

(2) is unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form;

(3) is unable to speak the English language;

(4) is incapable, by reason of mental or physical infirmity, to render satisfactory jury service; or

(5) has a charge pending against him for the commission of, or has been convicted in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights have not been restored.

Challenges for cause can be made for any of the reasons that arise out of the basic requirements for qualification stated above and in applicable state laws. Challenges for cause can also be made for any reason that implicates genuine doubt regarding the capacity of a juror to serve fairly and impartially. In most jurisdictions, these include:

    • Prior knowledge of the case or opinions formed prior to trial about the case
    • Life circumstances of a juror that are likely to result in generalized bias, loss of attention, inability to understand the evidence
    • Specific case-related bias (as in the context of a juror who believes that medical malpractice cases are the cause of rising health care costs, or a juror who believes that a particular dispute involves an issue on which the juror already holds strongly polarized views or indoctrination from a church, employer or military service)
    • Business or personal relationships with the parties, witnesses or counsel
    • Conflicts of interest (such as employment with a defendant’s liability insurer or a personal or financial stake in the outcome of the case). 
    • A non-felonious criminal history, or pending criminal charges
    • A pending civil suit in which the juror is a party
    • An articulated bias against a party or a party’s race, employment or affiliations
    • An articulated bias against a lawyer or the court
    • Substance abuse or medication-induced lack of capacity
    • Mental illness or evident mental instability
    • Anecdotally expressed moral turpitude (such as admitting to crimes for which the juror has not been caught)
    • Articulated or manifest disrespect for the justice system
    • Various details of military service or the issuance of military orders directing the juror to service at a time inconsistent with the completion of the trial

The benefit of striking a juror for cause rather than by the use of a peremptory challenge is that there are no numerical limits on the use of challenges for cause, so if an undesirable juror can be removed from the panel for cause, a peremptory challenge is saved for use on another juror who may not be seen as desirable but for whom no grounds exist for a challenge for cause.

All challenges for cause must be made on the record, and the grounds for that challenge must be stated clearly. This is necessary to support an appeal if the challenge is erroneously denied, or even if it is granted and the opponent appeals that ruling after you have won the trial. In order to understand the appellate mechanics related to challenges for cause, it is worth reading the 1988 U.S. Supreme Court case of Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988), in which the court was confronted with an appeal of a criminal conviction based upon the assertion that the state court impermissibly denied a challenge for cause aimed at a potential juror who admitted that if the defendant were guilty, he would automatically vote to impose the death penalty. The court held that: (1) where a defendant used peremptory challenge to remove juror who should have been removed for cause, the claim that the jury was not impartial must focus on the jurors who ultimately sat, and not on the juror who should have been removed for cause; (2) the failure of the trial court to remove the juror for cause, with the result that defendant had to use a peremptory challenge to remove the juror, did not deprive defendant of his right to an impartial jury; and (3) defendant’s right to due process was not violated by arbitrarily depriving him of the full compliment of peremptory challenges under state law, where state law required that defendant use peremptory challenges to cure erroneous refusals by the trial court to excuse for cause. While the Ross case is often cited for the proposition that appealing a court’s decision to reject a challenge for cause is likely to prove futile, it is important to note that state courts sometimes do not follow Ross on the basis of state law grounds. 

We disagree with the Court of Appeals’s reliance on Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). In that case the Court held that peremptory challenges are not a matter of federal constitutional dimension and requiring a defendant to cure the erroneous denial of a challenge for cause with a peremptory challenge does not violate the Constitution. Id. at 88, 108 S.Ct. 2273. But this does not change the way that the Court of Criminal Appeals has interpreted state law. See Martinez v. State, 763 S.W.2d 413 n. 2 (Tex.Crim.App.1988).

We also disagree with the Court of Appeals’s reliance on Jones v. State, 982 S.W.2d 386, 391 (Tex.Crim.App.1998). In that case the Court held that “the erroneous excusing of a challenge of a venire member will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury.”8 One rationale for this holding was that a defendant has no right to have a particular venire member serve on the jury. See Jones, 982 S.W.2d at 393. That is not the situation with which we are dealing in this case. A defendant has a right to not have a particular venire member on the jury if the venire member is challengeable for  cause or the defendant exercises one of his peremptory challenges.

We hold that under the facts of this case harm was shown for the erroneous denial of the appellant’s challenges for cause because the record indicates that the appellant (1) used a peremptory challenge to remove the venire members, (2) exhausted his peremptory challenges, (3) requested and was denied additional peremptory challenges, and (4) identified two objectionable venire members who sat on the jury and on whom the appellant would have exercised peremptory challenges had he not exhausted his peremptory challenges to correct the trial court’s erroneous denial of his challenges for cause.

 Johnson v. State, 43 S.W.3d 1, 6 (Tex. Crim. App. 2001).

Jury Research and Preparing for Voir Dire

This section is principally concerned with the selection of civil juries, though most of what follows is applicable only to criminal jury selection. While most states employ different jury selection procedures in criminal trials than in civil cases, most of the law regarding the exercise of challenges, manner of questioning potential jurors and — most importantly, the psychology of jury selection11 — remain the same in criminal and civil cases.

The ranks of American jurists include those who have tried enough cases of a particular kind that they can conduct voir dire skillfully without much, or any, preparation. Indeed, a lawyer who has tried more than 40 low-speed automobile accident cases might be able to conduct the entire trial, including voir dire, without advance planning. Most lawyers, however, require planning and preparation in order to conduct an effective examination of potential jurors. This is particularly true in the trial of complex cases, or cases involving issues that tend to be viewed as controversial or which polarize people into various demographic camps

How to Prepare a Jury Plan Outline

As we delve into the thought process that should guide a trial lawyer in preparing for jury selection, it is worth taking some time to define and clarify our goal. It is obvious that we wish to identify and strike those jurors who will be biased against our client. Less obvious is that the manner in which we question jurors should be designed to avoid making it easier for the opponent to identify and strike those jurors who will be biased against the opponent’s client. Many lawyers ask questions in both directions, seeking to appear impartial as attorneys (which is a fool’s errand), and in so doing help their opponent just as much as they help themselves. For example, when defending a case, some lawyers will ask a question that the plaintiff’s counsel neglected to cover on voir dire, such as whether the jurors have been involved in litigation. The defense attorney may wish to ask instead whether any of the jurors have ever sued anybody, and omit the question of whether they have ever been sued, which the defense lawyer would rather not have the plaintiff’s attorney know and which the defense lawyer does not need to know.

On a more fundamental level, the trial lawyer’s goal in jury selection is not to obtain a fair-minded jury. The second to last thing you want to have is a fair-minded jury. The only thing worse than a fair-minded jury is a jury with a bias in favor of the opponent. What you want is a jury that is predisposed to find in favor of your client. The goal, therefore, is to ask questions that are calculated to trigger responses based upon bias against your case or some key aspect of it without identifying your best jurors. 

The Scale of Amenability to Persuasion

During voir dire your goal is to learn as much as possible about the jurors and how they think and react. That knowledge can seem quite amorphous and difficult to gauge in terms of what you need to do with it until you realize that you are simply working to accurately locate each juror on the Scale of Amenability to Persuasion: 

When a juror exhibits attitudes, reactions or fixed belief systems that are likely to operate as a barrier to persuasion in favor of your client, you begin to accumulate information that permits you to place the juror somewhere on this scale. A juror who is absolutely neutral in his or her beliefs and who is easily persuaded about things would fall in the exact center of this scale, and would be a “zero” juror. During voir dire, your opponent is likely using the same scale, and trying to identify and strike the jurors who fall on the left side of the scale from your perspective, as the scale is reversed for the opponent. This means that, ideally, both sides are striking the jurors who have fixed opinions, attitudes or belief systems running in either direction, leaving behind only “zero” jurors.

Depending upon whether or not you intend to use paper graphs, sticky notes and tablets as opposed to software packages on a tablet computer as your reference while selecting a jury, the mechanical details of how you prepare your equipment and materials for jury selection must be rehearsed until you are able to take all of your attention off of the materials and mechanics and focus on the potential jurors without distraction. Many lawyers fumble during this process because they are insufficiently disciplined to spend the time necessary to hone these mechanical skills before reaching the courtroom and their lack of familiarity and finesse with the mechanics of their charts, notes or equipment become sufficiently distracting that they miss key information such as nonverbal cues (fidgeting, facial expressions or unusual eye movement evidencing stress or disagreement in response to the introduction of a topic or idea) that should, at the very least, lead to follow-up questioning of that juror.

Indeed, some of the most important information received by a trial lawyer during jury selection comes to him or her nonverbally, and leads to carefully posed questions leading in turn to successful challenges for cause or well-targeted peremptory challenges. Thus it cannot be overstated that an attorney must not be distracted by the information-management tools he uses during jury selection, but must instead be able to apply these tools smoothly and effectively so that he is able to have necessary questions and topics for follow-up, as well as important information pertaining to particular jurors, literally at his or her fingertips.

The purpose of a jury outline is to provide the trial lawyer with an easily-used visual reminder of the themes, issues, subjects and evidence in a case that should be considered when formulating effective questioning for potential jurors. It is generally not a good idea to try to keep all of this packed in one’s memory, however, because the attention devoted by a trial lawyer to more than a dozen potential jurors simultaneously occupies so much of the attorney’s attention that he or she is likely to forget some of the more subtle, but potentially outcome-determining, matters upon which questioning should be based before challenges are exercised.

Keeping track of hidden, bias-triggering issues.

Some issues in a case are so central and obvious that there is no need to write them down in order to remember them as a subject of voir dire questioning. Others are less obvious, and only arise in the mind of the trial lawyer when the entire script of the trial is reviewed in the attorney’s mind in advance (an exercise that should be, but rarely is, carried out by the lawyer before the discovery cutoff, while time remains to cure evidentiary problems through depositions and motions practice or other actions).

For example, who would think to question potential jurors in a slip-and-fall on their feelings about random drug screening?

Consider the following hypothetical: you are defending a premises liability action involving a personal injury to a business customer on commercial property who fell down a flight of stairs in a lobby of a building. One of the eyewitnesses to the accident is particularly important because she is the only person who actually saw the plaintiff before and during her fall, and her testimony is contradicted by other witnesses who said that they did not see the plaintiff fall, on the basis of which you argue that the fall did not happen. Given the overall makeup of the case, without the testimony of that witness, a jury verdict for the defense is likely. For this reason, the weight given by the jury to the testimony of that witness may control the outcome of the case. Her credibility is a key issue. She is a member of a labor union that was picketing in the lobby of the building where the accident happened, and was one of the picketers. Her union was on strike because of a dispute with her employer, who is your client and the owner of the building, regarding random drug screening of employees.

Now in this example, you can see how a potential juror’s feelings about drug testing in the workplace, as well as about drug use generally, labor unions, visibility and judging credibility, become important topics of voir dire questioning, because these matters are central to how the jury will view the evidence and decide the case despite being totally unique to this particular slip-and-fall. 

The principle at work here is that knowing the claims and defenses is not sufficient to prepare a well-planned outline of the issues for questioning potential jurors. Only through detailed visualization of every part of the trial can a lawyer make a list of everything that might snag on a juror’s pre-existing biases and belief systems. Knowledge of how jurors feel on these subjects not only opens the door for intelligent use of peremptory challenges and the development on the record of the grounds for challenges for cause, they also inform the manner in which the trial lawyer presents the case. Skilled lawyers are always able to tailor the presentation of the case “on the fly” to suit the unique makeup of the actual jury.

Mind-mapping software.

Mind maps are an invaluable tool to sculpt and develop informational structure. While outlines in Word or Pages are also useful, for they permit easy cut-and-paste reorganization of a developing outline, mind mapping software permits the same function in a graphical fashion, which is much more intuitive and easier to work with when operating in a creative thinking mode.

A mind map is often a graphic depiction of issues and sub-issues. A generic example would be as follows:  

Here is example of a highly over-simplified mind-map that could be used as a start to map ideas for voir dire in the hypothetical case described above: 

This example, though drastically oversimplified, serves to provide a visual sample of how useful a mind-map can be: The visual arrangement of the branches and sub-branches makes the structural relationships between nodes obvious, and stimulates thought for further items and sub-items more than would be the case with a textual outline. Because of how easy it is to drag branches from one trunk to another, link text and items to various points and draw relationship lines, mind mapping software is the best way to think through a large problem.

The key to preparing an outline or mind map for use in voir dire is to first develop an outline of legal and factual issues that must be resolved in your favor in order to prevail at trial, being as specific as possible and quite thorough with respect to identification of sub- issues and the psychological ramifications associated with each. With respect to each topic, issue or important item of evidence, ask yourself: what are the different ways a juror may see this, and how will I identify or influence that response? Related self-asked questions include: (1) how jurors associate issues and items of evidence with their own of past life experiences, including ideological postures, militarily and employment-induced belief systems, religious beliefs (about which direct questioning is almost always prohibited and which must therefore be addressed indirectly); (2) how well jurors understand the subject matter associated with each; and (3) the thought process that influences which (among competing alternatives) implications or inferences a juror is likely to draw from circumstantial evidence or impeachment evidence. Item (3) is particularly important in light of the fact that the basic facts of a case are often not so much in dispute as the significance of those facts (the meaning to be drawn from them), and when facts are in dispute, credibility determinations (which are based upon a wide variety of extraneous information about a witness), control the outcome, so how jurors view that extraneous credibility related information can be as important as how the jurors view the undisputed facts.

We all see the world through the lens of our life experience, including our education, upbringing, religious and political views, education and innate level of intelligence. This lens, which the German people call weltanschauung (pronounced VEL-ten-shung), is sometimes referred to as a person’s world-view. It profoundly affects each person’s view of reality. Learning all you can about each juror’s weltanschauung is the core goal of a well-conducted voir dire.

Using Juror Profiles

Lawyers often favor the use of juror profiles because they provide a formula as a substitute for seasoned judgment, skill in communication, intuition and empathy. Juror profiles lend themselves to written analysis for clients (especially desirable for corporate in-house counsel, insurance professionals and others who feel compelled to convert subjective, nebulous thinking into objective, “black-and white” reasons for striking jurors. 

The term “juror profile” typically refers to a combination of variables such as: 

    • age
    • gender
    • educational 
    • employment 
    • political affiliation 
    • religious belief and religious affiliation
    • union membership
    • hobbies
    • emotional tone level 
    • intelligence

Not all of these variables can be quantified, but most can be discerned with questions likely to elicit direct answers on these topics, or at the very least provide trial counsel with enough information to make educated estimates in these categories. Finding out what clubs or groups a juror belongs to, what he or she likes to do during leisure time, what family and professional commitments the juror has made, what skill sets or special knowledge a juror possesses and how the juror appears to be reacting to the courtroom environment are all parts of the assessment of the admixture of tangible and intangible data gleaned by the attorney during jury selection.

The primary assumption underlying the use of juror profiles is that stereotypes are valid and useful. This assumption is partially true, and while juror profiles have some value, they are capable of misleading a trial lawyer because all people are fundamentally unique and assumptions are always a source of error. 

A common example relates to the truism that little old ladies are more sympathetic to injured plaintiffs than younger men, particularly younger men who run businesses. While this may be statistically true on a broad scale, this author has encountered many ruthless, cold-blooded little old ladies who would turn away even the most deserving of plainiffs, as well as many youthful and highly successful male entrepreneurs who are in fact bleeding heart liberals.

The key point with respect to juror profiles is that they constitute nothing more than a starting point for the analysis of generic juror data, and the use of demographic information, to draw very preliminary conclusions about whether or not a juror will be good for your case. Juror profiles are merely a starting point, and should never be used in isolation to decide whether to strike or challenge a juror for cause. Further, the use of juror demographics must be accompanied by the realization that the data may be in error or drastically incomplete. A juror who now lives in Alabama may have spent her entire life in Moscow; a juror who is registered to vote may have an extensive criminal history. A juror who is a member of a labor union may also be the local leader of the republican party and a member of a radical anarchist group. A juror who now works as parole officer may be a former gang member and a drug user.

Stereotypes can be very misleading.

Over-thinking and intuition.

It is possible to develop an abstract intellectual construct which will support any conclusion regarding the prediction of how a human being will respond to evidence or a particular type of dispute. In simpler terms, what this means is that you can always invent a basis to reach a conclusion and then find a way of expressing that basis in a way that appears sound, at least at a superficial level. It is also true that truisms rarely apply when they are tested under stress. An attorney can easily draw layers of conclusions from scant data. 

Hmmmm….This juror is wearing a sticker on her lapel that says she voted. She is a woman, so she must have voted for Hillary Clinton. She wears the sticker, so she is open, vocal or perhaps even militant about her political views. As liberal, she probably believes that members of downtrodden minorities are entitled to a great deal from society, so she will probably be pro-plaintiff in a personal injury trial. The fact that she advertises that she voted by wearing the sticker means that she is highly opinionated and forceful in her views. Therefore, as a defense lawyer in a personal injury suit, I had better strike her.

With thinking like this, a lawyer might decide, on what may appear to be a logical and analytical basis, to strike a juror simply because she voted in an election. Silly as it seems, this author has encountered such over-thinking and over-extrapolation in his interactions with many trial lawyers-in-training. While this is a simplistic example of an idea taken to extremes for the sake of illustration, the message is important: avoid over-thinking when it comes to the use of juror profiles, and always favor substantive dialogue with a potential juror, as well as your gut reaction to that juror (as well as your client’s gut reaction), over elaborately designed thought processes that are based upon incorrect assumptions and stereotypes. Not all members of the NRA come down hard on crime. Not all elderly women are sympathetic grandmothers. Not all Muslims are terrorists or even in favor of attacks on U.S. interests. Not all motorcycle riders are criminals. Not all members of the U.S. armed forces are conservative Republicans. Not all lawyers are heartless, greedy and dishonest. You get the idea.

The key is communication with the jurors directly. The more, the better. Ask questions and you shall receive far more relevant and useful information than mere demographic data.

Researching Local Demographics

Having given due recognition to the dangers of over-reliance upon juror demographics, it is true that some communities are enclaves of particular belief systems. There are more fundamentalist Christians (especially Baptists) in Oklahoma than there are in Wyoming, even on a per capita basis. There are more Republicans than Democrats in Wyoming, by a wide margin. There are more hispanics of relatively low education in Houston than in Salt Lake City. People in Denver are more likely to forgive a person for using marijuana than people living in the vicinity of Fort Bragg. There are more gangs and gang members in Los Angeles than there are in Mountain Home, Idaho.

People in some towns hate corporations. People in other towns hate plaintiff’s lawyers. People in some towns value blue collar culture, while college towns tend to house more intellectuals and younger people.

When trying a case in a town or city in which you do not live, it is important to obtain a sense of what the local people are like. What local news is important to them? What are they like, on the whole? How can you learn the answers to these questions? Aside from looking up the demographic information about a city on Google or Wolfram Alpha or the CIA World Fact Book Online, what can you do to find out what makes the community tick?

The answer is simple: talk to the locals. Drive around town. Look at local billboards and businesses. And above all, hang out for a good long while at the local Walmart, observing and conversing with as many people as possible about the issues and subjects that you inventoried with your mind map or outline. See how the local people feel about your case. You can conduct informal, inexpensive and highly effective focus group discussions in hardware stores, grocery store parking lots, shopping malls and parks. Look at what kind of homes are found in various parts of town. Find out how the locals feel about their police department, fire department and government administration. Ask the man in the checkout line at Target how he feels about lawsuits, doctors, employers and others. Eventually you will understand the local community. In a case in which the stakes are high, time spent on this project will reap huge dividends.

Best and Worst Potential Juror

As long as you realize that this is only a rough starting point to assist in your thinking, it can be very useful to begin planning your void dire by carefully considering what kind of juror would be best for your specific case, and what kind would be worst. While insufficient on its own, this enquiry leads to concentric thinking: start with the obvious, and work tentatively outward from there. The best juror is one who will find in your favor, of course, but the question is why he or she would do that. Why would a juror want to find in favor of my client in this case? Why? What would make him or her do that? As you ask yourself these questions, do so over and over, and eventually you will reach key realizations, revelations and epiphanies. 

An example might be as follows: In the recent trial on behalf of the defense of a patent infringement case involving principles of sub-atomic physics used to measure dissolved oxygen in water, I concluded that my ideal juror would be a highly educated male with a science background and experience in owning or running businesses, with nationalistic views, and belief in strict compliance with rules and regulations. My client was a corporation run by a young man, and it employed a patent that was subtly different from the patents licensed exclusively to the plaintiff corporation, which was headquartered in Germany and was suing a Wyoming corporation with a headquarters in Colorado. The plaintiff corporation had been late in making royalty payments, so we challenged its exclusivity under its own license agreement as well as the issue of whether the licensed patents included the technology employed by my client.

It is important to write down your thoughts, questions and conclusions as you pursue this analysis in preparation for your void dire; otherwise your thoughts will be lost and you will become distracted before the project is complete. You can use your mind map for this, or just a blank sheet of paper.

Jury Consultants and Mock Juries

Jury consultants.

The use of jury consultants has pros and cons. The advantages include obtaining a fresh perspective on how strangers will view your case — which can also be achieved through the use of mock juries and focus groups — as well as help interpreting subtle cues and potential associations in the life and thought processes of potential jurors. The disadvantage of using jury consultants (aside from the cost) are that they can distract the trial lawyer’s attention from the actual jurors and from his or her own instincts. They can also be a crutch, preventing the trial lawyer from developing the essential skill of reading and communicating with jurors.

Mock juries.

When a lawyer first begins to work on a case, his mind is a clean slate. He can evaluate the case without bias, particularly if he has learned how to map and cancel out his own biases and fixed belief systems. The longer he works on the case, however, the more likely he is to begin losing his perspective, for he has programmed himself to be both a counselor and an advocate. In his role as counselor, he must give impartial, balanced advice that is free of passion or prejudice, which may or may not be what the client wishes to hear, but which is the product of good judgment and clear thinking. In his role as advocate, which begins to take over the show in the lawyer’s mind as trial approaches, he must be a zealous source of persuasion and belief. He must sell his client’s position with great effectiveness. In order to do this, he must believe in the client and the client’s case so deeply that no one would question the lawyer’s certainty that his client deserves to win. If the attorney doubts the client or the case, the jury will sense that. The lawyer’s act must not be an act, so he must convince himself before he can convince others.

Or so most of us think.

What this leads to is a loss of objectivity as we move through the trajectory of the case.

Mock juries and focus groups can rescue the lawyer who has begun to lose objectivity in the name of better advocacy. 

A mock jury is just that: a group of people who hear the case, or an abbreviated version of it, in a rough simulation of the trial process. They then proceed to deliberate (usually on hidden video, while being observed by one-way glass by the lawyers and consultants), and then render a verdict. The process of using mock juries can involve very sophisticated equipment, including biotelemetry instruments that measure heart rate, galvanic skin response, respiration rate, skin temperature and pupillary dilation — all physiological manifestations of stress, agreement and emotional stimulus. Mock juror biotelemetry can be calibrated on a real-time basis against video testimony to determine the parts of a witness’s testimony that are most likely to be persuasive or rejected by jurors. Some corporations providing mock jury or mock trial services have very sophisticated courtrooms and observation and measurement equipment, but it is possible to stage a mock trial in a simple conference room, recording deliberations with an inexpensive hidden12 security camera and microphone for later study.

Mock juries and focus groups are far more valuable than jury consultants. Mock juries give the trial lawyer a sense of how randomly selected non-lawyers will view a case before the trial, including jury selection, even commences. These lessons can become resident in the trial lawyer’s mind as an asset rather than a distraction before the trial lawyer completes preparing for voir dire. Further, mock juries and focus groups can help a trial lawyer evaluate a case for settlement purposes, help the lawyer plan the most effective presentation and theory of the case, and supply valuable insights into how to identify jurors who will not accept the client’s side of the case for reasons of sympathy, bias or prejudice.

Observing the deliberations of mock jurors, particularly if more than one mock jury is used, can provide invaluable guidance to a trial lawyer regarding how people who have not been inculcated to favor the client will process the evidence, how they will react to witnesses and how they will likely decide the case. Of perhaps equal importance, mock juries can help a lawyer evaluate a case for settlement purposes.

An interesting example of the principles covered above comes in the form of this short war story: This author was defending a well-known maker of snowboarding helmets in a case in which a 19-year old was rendered paralyzed by brain injury sustained in a snowboard accident. His parents sued the helmet maker, asserting that the helmet was defective in its design. The helmet was in fact the best on the market, and was worn by most of the world’s top snowboarders, including one particularly famous snowboarder who advocated that this particular make of helmet had saved his life in a bad accident. Nevertheless, the case invoked great sympathy, because the family of the snowboarder were “salt of the earth,” very likable people who were saddled with a horrible nightmare. The family had worked in shifts every day for three years to take care of the injured plaintiff, including bathing, feeding, toilet and other daily chores that involved a terrific sacrifice of time and effort, with no rest or vacation, ever. Because they were suing the maker of the world’s best snowboarding helmet, their case was weak, but because they were suing a large, deep-pocket corporation, their case was dangerous nevertheless. We needed to find out whether the sympathetic nature of the case was likely to overcome the objective strength of our defense, so we tried a streamlined version of the case to two separate mock juries consisting of eight members each. The presentations were recorded, and so were  each jury’s deliberations. 

Each jury had one “sympathy holdout” (meaning a juror who would not be persuaded on the basis of logic, and who would not under any circumstances find for the defense), who said things like “I don’t care if it’s the best helmet in the world! These people are hurting, and this company is worth billions! I’m never going to agree to a defense verdict!”

From this exercise, we understood that the likelihood of a hung jury was significant, but that the likelihood of a plaintiff’s verdict was relatively low. At that time, the Plaintiff’s “drop-dead” (non-negotiable) settlement demand was $7M.

So we decided to try the case.

During this process, based upon studying sixteen jurors deliberating in two separate groups, we had learned about the kind of juror that would be most likely to become a “sympathy holdout” juror. Mothers of male children in their teens appeared more likely than elderly women or men of any age to dig in in favor of the plaintiffs. We tried to strike those kinds of jurors at trial, but we ran out of peremptory challenges because we had several middle-aged mothers in our venire, as well as other jurors who openly expressed anti-corporation sentiments and appeared obviously biased against our client. 

One mother of a 19-year old male made it onto the jury and caused the jury to “hang” after a two-week trial and five full days of deliberation. The federal judge declared a mistrial, then granted a number of post-trial motions by the defense, essentially gutting the case on grounds related to the faulty foundation of plaintiffs’ expert witnesses. We settled what was left of the case for a truly minuscule figure. The client was happy and we learned a lot about the cause of the mistrial when we interviewed the holdout juror extensively after trial.

Focus groups.

The easiest and fastest way to find out how ordinary people with no legal training or duty of loyalty to a client (and its resulting skewing of perceptions about the case) will view a case is to assemble a selection of strangers (using classified ads or recruiting people out of a grocery store parking lot) and talk about the case with them informally in a conference room equipped with a large-screen system to show them key documents and photographs, or even segments of video depositions. Listen to them talk after you give them a full and fair version of each side of the case (emphasizing the strengths of the opponent’s case), and for purposes of jury selection, make not of the kind of juror that is hardest to pull back to your side, and why.

Preparation and Coordination with the Court

As mentioned § I.C., above, there are several questions to ask the judge in order to understand in advance how jury selection will be conducted. The factors listed above are the principal variables that may change from court to court, but below is a more useful list of specific questions to put to a court, preferably during the pretrial conference or whenever the court is receptive to such discussions. 

Knowing the answers to these questions allows you to operate with confidence during voir dire rather than fumbling furtively in the hopes of avoiding a judicial scolding. The basic questions to ask include:

    • What are the court’s time limits on voir dire?
    • How many jurors does the court intend to impanel, and how many of those will be alternates?
    • What is the court’s procedure and practice regarding allowing alternate jurors to deliberate?
    • Will the jury be allowed to discuss the case before the close of evidence (meaning before both sides have rested and the jury has been instructed and heard closing arguments)?
    • Will the jurors be allowed to take notes?
    • Will the jury be allowed to ask questions?
    • What is the court’s seating procedure in the selection of the venire that will be questioned?
    • What questions will the court ask before turning the venire over to counsel for attorney questioning?
    • What is the court’s required process and timing for voicing challenges for cause (meaning when should such challenges be stated during the process)?
    • When and why, if ever, does the court separate an individual juror the remainder of the venire for specific questioning?
    • If jurors are separated from the venire for questioning, is that done in chambers or the courtroom after the venire has been taken back to the jury room?
    • Will the court allow “mini opening statements” before or during voir dire, or provide a stipulated overview of the case prior to the commencement of voir dire?
    • Will the court sequester jurors?
    • How many peremptory challenges will be permitted (noting that the number can sometimes be much higher than the federal statutory minimum of three peremptory challenges) per party?
    • What is the mechanical process that is used when peremptory challenges are exercised (e.g., does the clerk pass a clipboard back and forth between counsel at their tables, or do the attorneys approach the bench and exercise their challenges verbally, or is some other procedure used)?
    • Will the court permit any documents, photos or outlines to be displayed to the venire during voir dire? (Note that while the vast majority of courts decline such requests, some allow limited presentations of more than just short verbal summaries of the case during jury selection.)
    • Will the court instruct the jury to avoid contact with attorneys so that the attorneys do not appear rude when they physically avoid opening doors, riding on elevators or greeting jurors outside the courtroom?
    • Does the court have any other special procedures or requirements regarding the jury not covered above?

Effective Use of Motions In Limine To Shield the Jury From Improper Evidence

Imagine the following scenario: you are representing a minor child whose father was killed in an automobile accident, and who is suing the adverse motorist for wrongful death damages. Your client is five years old. His mother is a professional stripper. Your client’s deceased father was a unionized carpet layer with an annual income in excess of $65,000 per year and a work life expectancy at the time of his death of 27 years. At the time of the accident, the father was driving a motorcycle without wearing a helmet. He had a baggie of marijuana in his jacket pocket. Toxicological evidence was inconclusive concerning recent marijuana use. The adverse motorist is a prim and proper 40-year-old single mother who works two jobs and presents very well to the jury. The facts of the accident involve disputed testimony regarding the color of the signal lights at an intersection; the defendant made a left turn in front of the oncoming motorcycle, and claims to believe that she had lawful possession of the intersection because the signal lights for two-way through traffic were red and vehicles on the opposite side of the divider line were coming to a stop (which prevented her from seeing the oncoming motorcyclist with whom she collided).

If the jury hears that your client’s mother is a professional stripper, that his father is a drug user and was not wearing a helmet (although none was required in the state where the accident occurred), these facts could be sufficiently prejudicial to tip the balance and cost you the case because liability is such a close call in view of the conflicting witness testimony regarding the color of the lights at the intersection.

Once the jury hears about the marijuana, the failure to wear a motorcycle helmet, and that mom — who is shepherding the case and who retained you to bring the suit — is an exotic dancer, the damage will be irreversible. “You cannot unring the bell,” the old adage goes, meaning that a curative instruction will not undo the potent psychological poison of these unsavory facts. Waiting for a determination regarding the admissibility of this evidence during trial is likely to result in the jury becoming aware of these circumstances. The only solution, therefore, is to obtain an order in advance of trial prohibiting counsel from making any reference to these facts until and unless the court determines that evidence of these facts is admissible. The entry of such an order is likely to make it easier to exclude the evidence in its entirety. This is because courts tend to make decisions sequentially and on a gradient (meaning stepwise or gradual) basis.

You file a motion in limine,13 seeking two forms of relief: (1) preclude, at the outset, any reference to marijuana, exotic dancing or helmets, until such time as such evidence is deemed admissible; and (2) seek to exclude the evidence entirely on the basis that the danger of unfair prejudice and confusion of the issues will outweigh the probative worth of such evidence pursuant to Rule 403 (of the Rules of Evidence). You win the first request prior to the commencement of jury selection, and you later when the evidentiary issue overall, in that the court ultimately rejects the evidence on Rule 403 grounds.

The jury finds the defendant 51% at fault and awards monetary damages to the estate for loss of consortium and future economic losses. You realize that if you had not filed the motion in limine, you probably would’ve lost the case because with a 51/49% liability finding, the jury’s verdict confirms how close the liability issues were, and highly prejudicial or inflammatory evidence could have pushed that percentage finding a couple of points in favor of the defense, which in most comparative fault jurisdictions would automatically result in an outright defense verdict.

One key element of the order in limine is that counsel would not be permitted to question potential jurors regarding marijuana, the use of helmets by motorcyclists, or their feelings regarding adult sex workers. Even asking those send the jury a message that could have cost you your case. You won the entire case because of a motion in limine.

Skilled trial attorneys like to create prejudice faster than the opponent can deal with it; this sounds unsavory, but it is a cold reality and quite accurate. If you were defending a case such as the one mentioned in the above hypothetical, you would probably want to emphasize these negative facts before even giving an opening statement by asking questions designed to inject this prejudicial information at the earliest possible juncture — voir dire. In the absence of an order prohibiting such questions, defense counsel could ask questions like these:

“In this case, the primary question for you to resolve will be whether the motorcyclist caused his own death by failing to exercise reasonable care. This will include the question of whether or not he ran a red light, whether or not he was wearing a helmet, and whether or not he should have been wearing a helmet. So let me ask you this: do any of you believe that motorcyclists should have a right not to wear a helmet?”

After some follow up on this, any juror who believes in riding without a helmet will be identified, and the remainder of the jurors will begin to lean away from the plaintiff-decedent.

Thus, when you work out your issues and planning for voir dire as set forth in the previous section, be alert to issues that should not be discussed with the jury at any time until the court rules otherwise, and file the appropriate and timely motions in limine to shield the jury from improper evidence.



1 Brett Godfrey is a 30-year trial attorney with a national practice and more than 95 civil jury trials in state and federal court throughout the nation. His practice emphasizes high-stakes complex litigation of matters involving science, medicine, technology and corporate finance. In 2015, Law Week Colorado designated him the Best Commercial Litigator in Colorado; in 2016, the same publication listed him as the Best Construction Defect Lawyer in Colorado. Mr. Godfrey has a degree in chemical engineering, is a former Air Force officer and pilot with multiengine instrument ratings. He is a member of the National Association of Distinguished Counsel, a Colorado Super Lawyer, and a Fellow of the Litigation Counsel of America.

2 See § II, below, Jury Research and Preparing for Voir Dire for tips in preparing for jury selection and comments regarding juror psychology.

3 The Supreme Court stated in Walker v. Sauvinet (1875), Minneapolis & St. Louis Railroad v. Bombolis (1916) and Hardware Dealers’ Mut. Fire Ins. Co. of Wisconsin v. Glidden Co. (1931) that states were not required to provide jury trials in civil cases.

4 Moses, Margaret. “What the Jury Must Hear: The Supreme Court’s Evolving Seventh Amendment Jurisprudence”, George Washington Law Review, Vol. 68, p. 185 (2000) (in “the two states where the civil jury trial right is not constitutionally based, it is nonetheless provided either by statute or court rule”). See generally West Virginia Constitution, art. III (using a threshold amount of twenty dollars as in the U.S. Constitution).

5 28 U.S.C. § 1866.

6 28 U.S.C. § 1867.

7 28 U.S.C. §§  1875, 1877.

8 28 U.S.C. § 1863-64.

9 28 U.S.C. § 1866.

10 Brett Godfrey is a 30-year trial attorney with a national practice and more than 90 jury verdicts in state and federal court throughout the nation. His practice emphasizes high-stakes complex litigation of matters involving science, medicine, technology and corporate finance. In 2015, Law Week Colorado designated him the Best Commercial Litigator in Colorado; in 2016, the same publication listed him as the best construction defect lawyer in Colorado. Mr. Godfrey has a degree in chemical engineering, is a former Air Force officer and pilot with multiengine instrument ratings. He is a member of the National Association of Distinguished Counsel, a Colorado Super Lawyer, and a Fellow of the Litigation Counsel of America.

11 See § II, below, Jury Research and Preparing for Voir Dire for tips in preparing for jury selection and comments regarding juror psychology.

12 The recording equipment should be hidden, because if the mock jurors know that they are being recorded, they are likely to perform for the camera rather than expressing honestly held views. The mock jury’s knowledge of the recording process is usually enough of an outside distraction that it can literally erase the benefit of using a mock jury. Disclosure of the use of the video should be made in a fashion that indicates an outside possibility that the proceedings will be recorded in their entirety, but which allows jurors to forget about the video during the deliberation process.

13 Motion in limine: a pretrial motion that seeks an evidentiary ruling prior to trial, typically seeking to limit or exclude evidence of facts or reference or argument to those facts. The two most common bases for such motions are found in Rule of Evidence 403 (exclusion of evidence on the basis of confusion, delay, unfair prejudice, confusion of the issues) and Rule of Evidence 702 (threshold evidentiary standard for the admission of expert testimony).