Group voir dire is a tricky business: it’s not easy to get a courtroom full of jurors to talk and easily reveal biases that will harm you. Despite this general difficulty, there are some advantages to jury selection in an employment case. The most obvious is that your courtroom full of jurors has plenty of relevant experiences, opinions, and biases that they would love to share, if only they had the chance. I’ve found that in extreme group voir situations, the best strategy is to come armed with a short list of really good questions and try to get as many potential jurors to answer those questions as possible. When you approach dire in this way, you experience the following benefits:
- The judge will hear the jurors speak, not the lawyers. I’ve never heard a judge tell jurors to “hurry up” when they’re speaking, but I’ve heard many judges give lawyers a “hook” when question after question hangs unanswered.
- The members of the jury hear each other talking. This encourages them to feel more comfortable responding. It also makes them feel more positive about the voir dire experience: When jurors are asked questions they can relate to and respond to, they feel that voir dire is truly a meaningful process.
- The lawyer is able to compare apples to apples before making justified and peremptory challenges. When multiple jurors answer the same key questions, biases can be more accurately assessed along a continuum. It becomes obvious that some “apples” are slightly bruised while others are rotten to the core.
Some attorneys are uncomfortable with the concept of exposing biases that can harm them in open court. They believe that these biased jurors could contaminate other potential jurors. In countless jury picks, I have never seen this happen. Harmful biases don’t spread from person to person like the stomach flu. Instead, the exposed biases simply allow you to succeed in more cause challenges, as well as exercise your peremptory challenges more intelligently. There is no point voir dire if lawyers avoid exposing the very biases that may prevent them from winning a winnable case. So, with that in mind, here are some of my favorite voir dire questions for both plaintiffs and defendants in employment cases.
For complaints:
- Do you think it’s too hard to fire people?
- Have you ever worked with someone who should have been fired but wasn’t?
- Have you ever wanted to fire someone but was told you couldn’t?
- Have you ever been falsely accused of treating a subordinate unfairly?
- Has a subordinate or co-worker ever complained that they were treated unfairly when really they were just performing poorly?
These questions are some of my favorites for plaintiffs because jurors who answer yes are more likely to have an interest in employees who complain that their rights are being violated. They are also more likely to have a negative view of labor laws: rather than seeing them as necessary protection, they are more likely to see them as an impediment to a well-functioning workplace. Question #4 asks if a person has ever been “falsely” accused. This is key because jurors do not want to admit that they have been charged with something. By describing the accusation as false, the juror identifies with the feeling that he was wronged, which makes it easier for him to admit the experience and discuss it.
Follow-up questions are as simple as “tell me why” or “tell me more so I know where you’re coming from.”
For the defendants:
- Have you ever been fired from a job? What was your impression about how your employer made the layoffs? Did you think they were necessary? Unnecessary?
- Have you ever worked for a company that was involved in substantial layoffs or layoffs? What was your opinion about how the employer handled that situation?
- Have you ever worked for a supervisor who treated you unfairly?
- Have you ever been in a work situation where you felt the employer was not concerned about _________? (Fill in the blank: it could be employee rights or health or safety or accommodation disabilities or some other topic relevant to your case.)
- How do you expect an employer to handle a problem employee?
These questions are some of my favorites for defendants because they expose jurors who are more likely to see the defendant-employer through a negative lens. Question #1 is not about layoffs because people don’t like to admit they’ve been laid off. For a juror who loses his job, a termination can be just as traumatic as a termination and cause the same degree of resentment. By asking about layoffs, the attorney can expose whether the juror has negative feelings and unreasonable expectations about an employer that has had to lay off employees. Follow-up questions will reveal whether the jury accepts or rejects the employer’s stated need for layoffs. I’ve heard jurors answer both ways: Some say, “That’s life. It was a tough economic downturn.” Others say, “They still managed to pay the CEO millions and millions of dollars. I definitely think the jobs could have been saved if the executives weren’t so greedy.” Questions #3 and #4 will give the attorney an idea of whether or not the juror feels that he or she has been victimized and whether or not employers generally care about or ignore the needs of employees. Question #5 gives the attorney an idea of what types of processes and procedures juries expect for discipline and dismissal. See say that the answers to these questions help the attorney discern whether his client is likely to meet or disappoint the jury’s expectations.
Group voir dire is a unique communication experience. Ordinary question-and-answer rules do not apply because in this scenario, the most normal jurors (i.e., not the most bold, outspoken, or biased) will naturally keep quiet until they are sure that their own personal experiences answer the questions. the question and important enough to share. For this reason, the questions above are deliberately somewhat repetitive of one another: asking similar questions in slightly different ways encourages jurors to respond. For example, if no one says a peep after you ask “Do you think it’s too hard to fire someone?” someone is sure to break the ice when you follow up with “have you ever worked with someone who should have been fired but wasn’t?”
The above questions also give jurors permission to articulate a bias that is detrimental to the litigant asking the question. In other words, these questions are the opposite of indoctrination. Indoctrination simply prevents jurors from being honest. If the first thing a lawyer does is lecture or indoctrinate, the lawyer indicates to jurors that he or she is more interested in telling them what to think than learning what the juror already believes. Once the plaintiff’s attorney or defense attorney is only seeking a settlement, it instantly becomes more difficult for jurors to open up. Remember, lawyers and judges are on their own turf. Jurors are like guests at a church of a religion they don’t belong to: they don’t want to say or do anything bad. That’s why you want to make it easier for them to open up by letting them know that now is the time and place to air their beliefs.
Finally, the questions do not address specific employment issues, such as discrimination or accommodations, or sexual harassment, but rather address general issues that affect whether a juror is likely to begin viewing your case with a position to consider. favor of the plaintiff or the defense. Okay. In other words, you’ll see if a juror’s personal experiences and/or worldview will make your case one more uphill battle. That’s why it’s so important that you pose some of the same key questions to as many jurors as possible. When you do, you will be able to draw critical distinctions between the best and the worst jurors. To make those distinctions, all you need are good listening skills and a few simple follow-up questions.
This is not to say that specific questions should be avoided at all. You’ll definitely want to add specific questions as well. For example, in a sexual harassment case, a plaintiff should ask, “What, if anything, do you think a woman can do to avoid being sexually harassed?” A defendant can learn much if he asks, “What, if anything, can an employer do to prevent employees from sexually harassing other employees?” These examples are topic specific, but not too specific about the case. That’s what makes them so easy to answer. Jurors do not feel that they are being asked to prejudge a case. Instead, they are asked about topics they are sure they have an opinion on.
If you give jurors the chance to use their own words, you’ll be amazed at how easily they’ll betray their own biases with colorful, value-laden language. You will hear jurors say things like:
“You hear people cry discrimination…”
“I’m just not the lawsuit type.”
“Employers try to act like they care, but all they care about is the bottom line.”
When jurors use colorful, value-laden language, resist the urge to correct them, argue with them, or try to get them to admit they are totally biased. Instead, side with them; listen to them; Act like you understand where they’re coming from and have heard it before. Let them know that they are not alone in their beliefs. This will help open the vein even more. For example, you can say “say more than you mean when you say ‘cry discrimination'”. Or, if you’re afraid the juror will back down at the sound of their own biases, you can rephrase and amplify the juror’s comment by saying something like “when you say ‘people these days yell discrimination,’ it sounds like They’re saying that nowadays, people use discrimination as an excuse. If this reflects a juror’s true beliefs, her articulation of that belief will make it easier for the juror to fully share the depth of her feelings.
In sum:
Traditionally, attorneys have viewed jury selection as an opportunity to bond with jurors and sell them your case. To that I say, sell your case during the trial, after the jury has been selected. This is your only chance to learn who the jurors are and what they believe. If you use that precious time to sell your case, you won’t be able to eliminate harmful bias. As far as bonding, if you really want to bond with the jurors, the best way to do that is to ask questions that the jurors can answer, on issues that are important to them, and really listen to their responses, helping them clarify the issue. depth. of his true feelings. That is the only way you can protect your client’s interests during the most critical stage of the trial.