Illinois Association of Defense Trial Counsel Springfield, Illinois www.iadtc.org 800-232-0169 IDC Quarterly Volume 19, Number 1 (19.1.8) Feature Article By: Robert W. Neirynck Costigan & Wollrab, P.C. Voir Dire a Defense Perspective There is no one way to conduct the voir dire examination of potential jurors. Just as the facts of each case are unique, so too are the personalities and comfort levels of the attorneys trying the case. What follows are some general observations that may be of assistance to counsel who have never conducted a voir dire examination and perhaps a refresher for those who have done so on numerous occasions. Pre-Trial Step One Learn the Nuances of the Jurisdiction If you have never tried a case in a particular venue it is important to learn the rules of the local Jury Commission with respect to juror lists since each County or District Court is different. Approximately two weeks or longer before trial, contact the Jury Commission office. The following are some things to inquire about and what to do with the information you obtain. Ask whether the Commission will provide attorneys with a list of jurors the week before the trial? If so, get the list and have it reviewed by all counsel in your office and your client to learn what you can about the jurors. This is especially helpful in smaller Counties. If you do not practice in the County, contact a local attorney with a defense practice and ask if he would go over the list with you to see if he can provide background knowledge about specific jurors. If the Jury Commission does not provide counsel with a list of jurors in advance of the trial date, find out if one is provided on the morning of trial. Find out whether the Jury Commission simply provides a list of the potential jurors or whether it also provides copies of juror questionnaires. Commonly, the questionnaires are not provided until the morning of trial. However, if questionnaires are provided, try to get copies as far in advance of trial as possible. Also try to learn if the questionnaires are provided in numerical or alphabetical order. If the first time you learn the names of potential jurors is when juror questionnaires are handed to you at the counsel table, ask the Court for time to review the questionnaires. Have your client review them as well and use Post-It Notes to flag jurors that have listed information that is either helpful or hurtful to your defense theory. Learn how jurors are called from the venire that is sent to the courtroom. Frequently, they are called randomly in the courtroom by the bailiff or clerk. If this is the practice, ask the clerk to call by number as well as name and politely ask the clerk to speak slowly in calling jurors by name. If you fall behind in writing down names and seating locations it can become embarrassing. In some counties the sequence in which jurors are seated is created by computer before the jurors come to the courtroom and they are then called in a predetermined sequential order. Therefore, when a juror is excused counsel knows the name of the next juror who Page 1 of 7
will be called. If this is the practice it creates tactical issues in deciding whether and to what extent challenges are made. Pre-Trial Step Two Learn the Nuances of the Trial Judge If you are unfamiliar with the trial judge learn the manner in which he or she conducts jury selection and voir dire. Frequently within the same courthouse different judges have their own idiosyncrasies with respect to jury selection. Learn the answers to these questions at the final pre-trial conference. If the trial judge is different than the pre-trial judge, then once you learn the name of the trial judge, ask colleagues about the manner in which he or she conducts voir dire. Find out the following information. Does the judge request a list of voir dire questions from each counsel and how extensive is his questioning? Some judges are fairly perfunctory in their questions, expecting counsel to ask in-depth questions, while others are just the opposite. Are you allowed to expand on the questions asked by the judge? Does the judge impose a time limit on jury selection? In York v. El-Ganzouri, 353 Ill. App. 3d 1, 817 N.E.2d 1179 (1 st Dist. 2004), the appellate court upheld a 20 minute limitation on each side to question the entire venire in a medical malpractice action. On appeal following a plaintiff s verdict, the court held that since the trial judge had conducted an extensive examination, the 20 minute limitation was not unreasonable. The appellate court also held that objections to the process were waived when defense counsel failed to object to the judge s procedure and accepted the jury after rulings on peremptory challenges. If there is a time limit, your questioning of potential jurors is far more confined and intense. How does the judge group jurors for purposes of questioning and challenges. Some judges question in panels of four with two jurors in the front and two in the back. Others question panels of six in a linear fashion, while still others question all twelve at once. How does the judge seat new jurors when one is excused? Do they all move down the row such that a juror already in the jury box becomes the new juror for questioning or is a new juror called from the venire to replace the excused juror? How does the judge handle challenges either for cause or peremptory? Are counsel required to come to the bench or are challenges made openly from the counsel table? Additionally, when are challenges done each panel or the venire as a whole at the end of all questioning? Pre-Trial Step Three Prepare a Jury Selection Chart Some attorneys wait until the jurors are seated and simply draw lines on a legal pad to record jury selection notes. A preferable method is to prepare a chart before trial, based upon the manner in which the judge handles voir dire examination and challenges. The chart should not only keep track of juror s names and information gleaned from questions posed by the Court and counsel but also record challenges. The manner in which the chart is organized depends in part on the Court s system for seating new jurors in place of those who are removed. If the judge has the jurors simply move over and take the seat of an excused member, then a simple legal pad chart recording the names of jurors in each row in the manner called by the clerk will suffice. However, if the Court has the new juror take the exact seat of the excused juror, it is more efficient to use large Post-It Notes to keep track of who is sitting in what seat, while recording answers to questions on a separate legal pad. Finally, in a multi-party case, make certain that everyone on your team knows the number of challenges the Court has allotted each party. The Day of Trial Pre-Selection Considerations Page 2 of 7
Smile and be pleasant when entering the courthouse. Remember the person walking next to you could be a juror in your case. Instruct your client in the same manner. Remind your clients that the jurors are looking at them when they least expect it and forming judgments about them. Decide if you want the jury selection taken by a court reporter. Some judges may subtly hint that this is a burden on the court reporter by asking, You don t need this taken down, do you? Remember, if the jury selection is not taken down it will be extremely difficult if not impossible to use an error during selection process to reverse an adverse verdict. Also, if opposing counsel is the type who tries to indoctrinate the jury during voir dire, the lack of a court reporter can encourage this type of behavior. Be organized during the jury selection. Don t have the counsel table covered with files, books and exhibits. Let the jurors know visually that their selection in the case is very important and you are giving them your complete attention. Observe each juror as they are called to the jury box: what are they wearing; are they limping; do they move slowly; are they carrying a book or magazine, and, if so, what is it; do they appear to know any other juror; do they wear glasses, hearing aids, etc. Pay attention to visual clues from each juror when they are questioned by the judge and opposing counsel, especially when they are questioned by the judge. Notice if there are certain questions that cause them to frown, smile, or act indifferent. Learn the names of the jurors and how to pronounce them! No one likes to have their name mispronounced. Write the jurors names out phonetically on your jury pad. If you have any questions about the pronunciation, ask them. In asking questions, addressing the Court and opposing counsel, always be polite. Stand when you question the jurors and look directly at each one as you ask your questions. Try to question each one individually about something so no one is left out. Never ask an embarrassing question of a juror. Remember that all the other jurors are watching you and placing themselves in the place of the juror being examined. If the Court requires counsel to excuse jurors in open court, use a phrase like, If the Court please, we would respectfully excuse Mr./Mrs. Juror with our thanks. The preferable way for both counsel is to have the Court excuse jurors; and many judges will agree to do so. Voir Dire Considerations for Defense Counsel There are general questions of jurors that can be addressed in every case. More specific questions are formed by your theory of the case. In that sense, the type of juror that you want depends upon the nature of your defense. Are you defending on liability, damages, or both? Remember that your role in voir dire and throughout the trial is to be completely credible. If the plaintiff is injured because your client ran a red light and struck his vehicle, acknowledge it and state that the issue is the nature, extent and duration of the plaintiff s injuries and the amount of money that they are seeking. Always use real English rather than legal terms. General areas of inquiry can include the following. Remind jurors that because the plaintiff has the burden of proof, counsel for plaintiff always goes first in the case questions jurors first, argues first, and so forth. Tell them that sometimes we tend to believe what we hear first and ask them to keep an open mind until they hear all the evidence in the case and the jury instructions of the court. Remind them that there are two sides to a story and ask them to wait until they hear your client s evidence. Ask them if they understand that just because a Complaint has been filed, it does not mean or imply that there is liability on the part of your client. Remind them that anyone can file a Complaint but the plaintiff has the burden of proving fault and damages. Ask whether they have any quarrel with the fact that [name your client] has filed an Answer and is contesting that they are liable to the plaintiff. In any personal injury case where there is no dispute that the plaintiff has in fact been injured, acknowledge that the plaintiff has been injured and that everyone feels regretful for anyone who is injured no Page 3 of 7
matter what the circumstances. Inquire if the juror can put aside those feelings and decide the case on the facts. Ask if the jurors believe that the plaintiff should prevail simply because he or she has been injured. In an injury case, find out if the jurors, any member of the their families or close personal friends have ever been injured by some type of trauma that resulted in litigation. If so, can the jurors set that aside? If you are defending the case on liability and the issue is the contributory fault of the plaintiff, ask the jurors if they acknowledge that we all have personal responsibility in how we act, drive, work whatever type of fact pattern the case involves. Inform the jurors that in any civil case there are two broad areas: liability and damages. If they find for [name of client] on the issue of liability they will not have to decide the issue of damages. Ask the jurors if they decide during their deliberations that [name of client] is not liable, can they return a verdict for [name of client] even though the plaintiff has been injured and damaged even seriously. If plaintiff s counsel has questioned the jurors about a specific dollar figure or figures ( If you find for my client could you award X dollars if warranted by the evidence? ), ask the jurors if they could return a zero verdict, i.e., a verdict for [name of client]. Remind them that they have not heard any evidence. While there is no one perfect juror, some general types of juror characteristics to look for in defending a case could include the following: (a) Age. More mature jurors are better for the defense because they have seen more of life and have a more realistic understanding of the facts. (b) Gender. Generally, women are more sympathetic than men in awarding damages, especially in cases involving children or wrongful death cases. (c) Education. This depends on the type of case. If it involves complicated scientific or engineering questions, then look for more educated jurors. But a juror who has a lot of common sense can often be better than one with a lot of degrees. (d) Employment. If your client is a corporation, jurors who are employed by a corporation should be considered. They can understand that corporations act through individuals and are not all evil. Small business owners often make good jurors because they are self-reliant and have a sense of person responsibility. Again, in general, consider avoiding the following juror types: (a) Very young jurors. They have little experience in the affairs of life, are often highly influenced by the media and sometimes have a lack of understanding of the real value of money. (b) Litigious jurors. Remember that jurors who have a case pending in the same county where the case is being tried are automatically excused for cause. Jurors who have been plaintiffs in injury cases or class action cases should be avoided as well as jurors who have serious or multiple workers compensation cases. An exception may exist where (i) the plaintiff was injured during the course and scope of employment and the juror would be aware that the plaintiff had a compensation action against his employer as a result of the accident in addition to the case under consideration; or (ii) where you believe you can show that the plaintiff is exaggerating his injuries. In the latter situation the juror may feel that he was injured far more than the plaintiff and did not receive what the plaintiff is asking for. This is a judgment call. (c) Education. If your defense is complicated or technical, avoid less educated jurors while remembering the common sense exception. (d) Angry or sullen jurors. Avoid these at all costs. Page 4 of 7
Ask open-ended questions that require the juror to give a narrative answer rather than simply yes or no. For example, jurors may be engaged in unusual occupations. Ask them to generally describe what they do. Be interested in what they say and how they say it. If you know that there is going to be damaging evidence introduced against your client, bring it out in your questioning. For example, if your client has been convicted of a felony and you know opposing counsel will bring that out, tell the jurors that your client made a mistake and paid for it. If the case involves alleged negligent conduct, for example, ask the jurors if they believe that just because your client had a conviction in a totally unrelated matter he must be liable in this case. As illustrated by Author David Ball: Introduce the weaknesses of your case before your opponent does it for you. Well-worded questions reveal the necessary information even as you seek to discover juror biases: What conclusions would you draw about someone convicted of forgery? If I tell you that my client was convicted of forgery, would you draw those same conclusions about him? Can you think of any reasons why it might be unfair to do that? Such questions introduce the weaknesses of your case. Simultaneously, they seek potential bias as must all your questions. Ball, David, PhD, Theater Tips and Strategies for Jury Trials, (N.I.T.A., Third Ed., 1994) p. 39. Try not to repeat questions that were asked either by the Court or your opponent. Repeating questions that already have been answered satisfactorily will unnecessarily lengthen an already lengthy process. Sample Questions Examples of some typical voir dire questions could include the following. (a) Premises liability or automobile case: (1) Are you familiar with the location where this accident occurred [state location]? (2) Do you agree that simply because a Complaint has been filed does not mean that the defendant is liable you understand that anyone can file a Complaint to recover for his injuries? (3) Do you object to the fact that the [name of client] chose to file an Answer and contest that it is liable for the plaintiff s claimed injuries? (4) Do you understand that there are two broad areas of any civil trial for damages: liability and damages? If you find for [name of client] on the question of liability then you will not have to consider the question of damages. (5) In a civil case such as this, the plaintiff has the burden of proof, which means she has to prove the allegations of her complaint under the legal standard that the court will give you at the end of the case. As a result of this burden, the plaintiff goes first throughout the case and I proceed second. Can you wait until you hear all the evidence and the Court s instruction on the law before you begin to decide whether there should be a recovery and, if so, in what amount? (6) Can you set aside the natural human sympathy that you might have for anyone who has been injured and decide the case on the facts and the law? Page 5 of 7
(7) Have any members of your family or close personal friends ever been injured? Who, when, and what were the circumstances. Was there a lawsuit as a result? Can you set that aside in deciding the facts of this case? (8) Do you have any family members or close personal friends who work in the health care field? Who, where, doing what? Would this influence you in deciding the facts of this case? (9) If at the close of all the evidence and the instructions on the law you believe that the [name of client] was not liable, could you return a verdict for [name of client] even though the plaintiff had sustained personal injuries? (b) Dram shop case: Note that these cases pose a unique challenge to defense counsel because of the subject of alcohol consumption. Consequently, in addition to questions about liability and damages, familiarity with the parties, etc., it is important to question jurors about their beliefs and opinions regarding the consumption of alcohol. This must be handled in a manner that does not embarrass the juror. Begin the series of questions by stating, A person s consumption of alcoholic beverages is a personal matter; but I have to ask you some questions about it, because the consumption of alcohol is an issue in this case. Then follow that up with questions like the following: (1) Do you consume alcoholic beverages socially? (2) If you eat out at a restaurant are there times when you might consume alcohol with your meal? (3) On those occasions have you subsequently operated a motor vehicle to return home? (4) Do you have alcoholic beverages in your home from time to time? (5) Do you belong to any organization that has as one of its purposes the abolition of the use of alcoholic beverages? (6) Do you belong to M.A.D.D. Mothers Against Drunk Driving? (7) Some religious denominations have as part of their beliefs a prohibition against the use of alcohol. Are you a member of a church or religious organization that takes a position against all use of alcoholic beverages? (8) Have you, a family member or a close personal friend ever been injured by the actions of someone who in your judgment was intoxicated? (9) Do you believe that the sale of alcohol in this State should be prohibited? (10) It is undisputed in this case that [name of client] sold alcohol to [alleged intoxicated person] and that later the same day Mr./Mrs.[alleged intoxicated person] was operating a motor vehicle that collided with a vehicle operated by the plaintiff. Without knowing any additional facts would you be able to give [name of client] a fair trial? Conclusion Some attorneys believe that you win or lose your case in the type of jury you select, others by your opening argument, still others through a well-structured closing. Whatever your personal belief, there is no dispute that selection of the jury is a crucial building block in your case presentation. Remember that this is your first chance to present yourself and your client to the jurors, and first impressions are hard to change. The Page 6 of 7
more information you can gain about jurors, either through pre-trial investigation or voir dire examination, the greater opportunity you have to select fair, neutral jurors who will try the case on the facts and the law rather than pre-conceived prejudices. About the Author Robert W. Neirynck is a Shareholder at Costigan & Wollrab, P.C., Bloomington, Illinois. Mr. Neirynck graduated from the University of Illinois, A.B. cum laude in 1966 and the University of Notre Dame, J.D. cum laude in 1969. He served as a Law Clerk for Judge Leland Simkins, Ill. App. Ct. 4th Dist. (1971-73). Mr. Neirynck is a member of the Illinois State Bar Assocaition, former member Tort Law Section Council and Insurance Law Section Council (Chairman). He is also a member of the Illinois Association of Defense Trial Counsel (Director 1983-94) and is a Fellow, American College of Trial Lawyers (Downstate Chair 2002-04). Page 7 of 7