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The time allowed for jury selection now is typically very brief compared to the time allotted to attorneys years ago when I first started practicing. I used an approach similar to the one suggested here in picking criminal juries where I had much more time to explore the qualifications of jurors and their potential biases. However, I usually saved the line of questioning for use later in my examination of potential jurors. Now, I usually start off with this line of questioning and say something along the following lines: 

I started off my career, as a law clerk for a federal judge and was privileged to listen in when the judge would talk to jurors after a verdict. I realize that for most people this is their first and maybe only involvement with the legal system. They all take their responsibility very seriously and want to do their very best to render a fair and just verdict. However, when I got out there and started questioning jurors myself, I made a mistake in how I approached the whole process. I forgot that potential jurors don’t have enough experience with the law and our system to fully appreciate what is really required of them to take the oath to” truly” and “fairly” decide a case. 

 As a state prosecutor I learned after the fact that potential and actual jurors sometimes had very strong feelings about a particular type of case that through no fault of their own prevented them from being able to fully and fairly without reservation take the oath as a juror. This was not their fault… It was the fault of the attorneys. We did not let them know what was expected.   

 For example, I had a case with a school teacher who was picked as a juror on my client’s case. My client was very seriously injured. The jury eventually returned a defense verdict after telling the judge that they were hung and could not reach a verdict. This juror who ended up being the foreperson called me three days later and confessed to me that she did not believe in people obtaining money for “pain and suffering” even though it was required by the law in the Court’s instructions. She also confessed that she really did not believe in people suing for money. I asked her why she never mentioned this when questioned and she said that my questions were not specific enough to make her realize that this was important.   

I have to humbly admit that I may not be smart enough to ask the right questions. I need your help. So if I am talking about a topic and you think there is anything in your background that you would want me to know if you were in my client’s position, please let me know about that topic. 

I know there are certain types of cases that I could not sit on as a juror.  I would be unable to take the oath without reservation to act as a fair and impartial juror. There is nothing to be ashamed of in admitting that… In fact, that sort of honesty and candor should be applauded. If it is something that you do not want to publically discuss, just let me know and we can discuss the topic in private with just the attorneys and the court.      

Will each of you agree to do that for my client? Thanks. 

I will then move through the various topics on my voir dire such as:  

1. The type of claim. 

2. Burden of proof requiring a relatively low threshold, proving that the greater weight of the evidence means showing that your position is ever so slightly greater to have occurred that a flip of a coin of heads over tails. 

3. Vicarious liability or strict liability. 

4. Preexisting condition standard. 

 5. Various types of damages, wages, medical bills, future damages, pain and suffering, loss of enjoyment of life, loss of function, scarring, etc. 

 6. Outside expertise such as attorneys, doctors, nurses, engineers, etc.   

 7. Outside knowledge of the parties or case. 

 8. Loss of consortium. 

 9. Civil litigation and frivolous claims or defenses. 

 10. Only chance to recover – future damages. 

11. Prior jury service 

12. Legal experiences or education. 

13. Medical experiences or education. 

14. Scientific or engineering training. 

 When someone is honest enough to admit they cannot truly and fairly act as a juror, I first thank them for having the courage to admit that this is not the type of case for them to serve on as a juror. This is very important, especially with the first juror who admits their limitations.  

Admitting that you cannot be fair is not an easy thing to do. If they admit bias, then I lock them in on their bias. I explain that based upon what they are telling me, that they could not swear to God and the Court that they could, without reservation, swear an oath to truly and fairly act as a juror on this case.   

I follow up and obtain their agreement that no amount of questioning or cajoling by the Court or opposing counsel would change their answers to my questions.

I then ask the other jurors on the panel if anyone has feelings similar to the last juror? I then work through sealing the deal with the other panel members as outlined above. Finally, I conclude with my initial point: 

 Is there anything else any of you can think of that I wasn’t smart enough to ask  that you would want me to know about if you were in my client’s position?  

I then thank them for their help and candor and pass the jury panel. 

Empowering the panel members like this encourages candor and makes them feel good about admitting their bias. Judges appreciate this type of voir dire as opposed to a bunch of conditioning questions that are primarily designed to try your case in voir dire. This form of questioning will dramatically increase the number of jurors you are able to eliminate for cause. 

My last civil jury trial, I was able to eliminate five jurors for cause. This frees upon your preemptory challenges for use with person you suspect are not being candid and are bias. 

Because you are focusing primarily of eliminating jurors for cause or bias, most judges will even give you additional time to conduct voir dire if you start eliminating a large number of panelists and still have persons who have not been questioned.     


Hot Coffee, Juror Bias and Fear of the Unknown

Hot Coffee








Big City Chicago Style


Sitting in Water Tower Place I could not help but think about all the great and talented attorneys this City has produced. The legendary Clarence Darrow called this place home. He never shied away from taking on difficult cases, unpopular causes or clients.

Darrow successfully defended Dr. Ossian Sweet, a black physician, who was charged with the death of a man who was shot to death as Dr. Sweet and family members defended themselves from an angry white mob of people who were yelling and stoning Dr. Sweet’s home for daring to move into an all white neighborhood in Detroit during the 1920s. The case was tried to an all white male jury. Darrow was fortunate to have a fair-minded judge who made sure that jury selection was a fair process. The trial judge, Frank Murphy, would later become mayor of Detroit, governor of the Philippines, governor of Michigan, Attorney General of the United States, and an Associate Justice of the United States Supreme Court.

As an attorney I have my share of difficult cases. I represented a lady charged with the murder of her newborn child. The local press and public had vilified her on television, in print and on the Internet. My client had the benefit of a fair-minded judge who insured that my client’s right to a fair and impartial jury was not violated by allowing written questionnaires and individual voir dire of jurors over a period of two and half days. I did the case for the challenge and out of a sense of obligation. The glares from law enforcement or members of the public looking on did not dissuade me. I fortunately won an acquittal.

Without attorneys willing to act in such situations and bring their best to bear our system of justice can not work. Only through both sides working to do their best can our system produce just and accurate results. Like John Wayne said, “Courage is being scared to death and saddling up anyway.”

Jury Selection-What’s the Goal?

Of all the areas of trial work, this is probably the most difficult and important task that confronts a courtroom attorney. I have seen many different approaches used in questioning and selecting a jury. Your time is limited and the stakes are high. If you “guess’ incorrectly you can lose your case before it even begins. While there are several tasks to accomplish during jury voir dire, uncovering biases is the most important. The information gathered can be used to remove a potential juror for cause because of bias or the failure to satisfy the statutory requirements to sit and judge a case.

Grounds for cause can include the inability to read, see or hear, lack of English literacy, personal bias, preconceived opinions on a case that cannot be put aside, personal knowledge of the underlying facts or the parties, a family relationship to a party within so many degrees, and religious or ethical reasons that prohibit a person from sitting in judgment of another or rendering punishment. Most states have jury rules and/or statutes that outline grounds for excluding a juror for cause. You need to be familiar with them and be ready to specifically cite to the rules or statutes as needed. To this end, you really need to enlist the aid of the jurors themselves, especially where the Court has limited your time for questioning jurors.

I usually will say something like this early on in the selection process:

I have limited time to speak with you today and I may not be smart enough or have enough time, to ask the right questions to learn what I need to know about your background. I really need your help. I know it’s not easy to say for you to say that “there is something in my background that might not make me the best of person to sit on this type of case.” It takes a lot of courage to admit this sort of thing about yourself. So ask you to please help me and my client by letting me know if there is anything that you know of in your background that you think I should know. Please let me know if there is anything which could affect your ability even a little to sit as a juror in this case?

This usually will get people talking. I always compliment the person for their honesty and candor. I try to cover burdens of proof and make sure that the jury will not have a problem (even a little) in obeying the Court’s instructions and including money for all items of damage including pain and suffering or loss of services. I will also check for any areas of expertise that a witness might have which could come to bear and make sure that they will decide the case based upon the expert testimony in court and not be their own expert. This would be unfair because i would have no chance to question them or examine their opinion. I will usually ask something along the following lines to see if the juror’s expertise will pose a problem:

If our expert testifies to a principle or opinion which based upon your training or experience you know is incorrect, can you put aside your own personal knowledge and decide this case solely based upon the evidence presented in court? Would you be unable to ignore what you have learned outside the court room in decide what to do?

I also look for who the leaders are on the jury panel. They will either lead the others or hold out and hang your jury. You should look at the person’s education, job, civic involvement and standing in the community. I simply ask :

Have you ever held a position of leadership at work or as part of an organization or club?

Leaders are most likely to end up being the foreperson. As a federal judge once told me, if you can pick the foreperson, you can usually predict the verdict. Good luck in selecting your next jury. I hope these thoughts help you in selecting your next jury. Registered & Protected

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