From 100 days through Opening Statement: Course 2: Jury Selection Topics: Purpose Before Jury Selection Begins Jury Selection (Voir Dire) Cynthia McGuinn

From 100 days through From 100 days through Opening Statement:Opening Statement:

Course 2: Jury SelectionCourse 2: Jury SelectionTopics:

• Purpose• Before Jury Selection Begins• Jury Selection (Voir Dire)

Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]

PurposePurposeCynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]

PurposePurposeChanges over past 3 decades

◦Indoctrinate (control)

◦Persuade (control)

◦Get commitment (control)

◦Establish connection “likability” (control)

◦Learn/arm(listen/empower)


Before Jury Selection BeginsBefore Jury Selection BeginsCynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]

Pre-Voir Dire WorkPre-Voir Dire Work County Jury Pool profiles

Court Procedure & Rules

◦ Judge Voir Dire

◦ Use of Questionnaires

◦ Mini-Opening?

◦ Time limits

◦ Challenges

◦ Alternates

Opposing Counsel


Legal Briefs/MotionsLegal Briefs/Motions

Use of jury questionnaires

Time limits

Sensitive subject matter

Pocket brief cause challenges

Batson/Wheeler Issues


Jury SelectionJury SelectionCynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]

Create an opening for Create an opening for dialoguedialogue

◦Introduce client and yourself

◦Ask a question that requires a group response

◦Explain: Only time we can have a conversation

◦Want to discover: What you have learned about life through your

experiences; How those experiences affect the way you view things; How those experiences may affect the way you

evaluate case facts.


Explain What You Are Going to DoExplain What You Are Going to Do Way Things Work:

◦ Ask questions to you as group – raise hand

◦ Follow up with individual questions based on what comes up when we talk

◦ May not ask questions of everyone-not offended?

◦ Want to know what you think; how you feel on these subjects.

◦ Will protect your privacy-Let us know if need to discuss in private

Be respectful

◦ Know their names – correct pronunciation

◦ Don’t interrupt (with some exceptions)


Validate & Empower:

◦ No right or wrong answers; only your answers

Justify & Excuse:

◦ Sometimes life experiences affect us in such way, certain cases not for you

What The Law Looks For:

◦ People who can listen, evaluate, decide based on evidence presented here not on outside things


Facilitate DisclosureFacilitate DisclosureIt’s about them – It’s not about you.

◦Get the jury talking.

Ask open ended questions & follow up

◦Tell me more, why is that so….

Don’t react to bad answers

◦“Many people feel that way, who else does...”


Listen - Watch - Record Listen - Watch - Record

Look at the juror when they are speaking

Pay attention to answers & body language

No writing; no shuffling papers

Have someone else keep notes


Ask About Case-Critical IssuesAsk About Case-Critical IssuesAsk about landmine issues

Determine what percentage of proof they would require

Key: If you can tie a case critical issue to the burden of proof, you can set up a successful cause challenge.

◦E.g. How many do you feel strongly that lawsuits against nonprofits who provide services to the disabled creates the risk of forcing these companies out of business


Establish Agreement with Establish Agreement with “Rules of the Road” “Rules of the Road”

The concept of rules

◦ How do they feel about rules? (Have rules @ work; for kids; at home?)

◦ Are they important to you?

◦ Why are they important?

◦ Do you expect others to follow them?

◦ What happens if they are not followed? (i.e. – consequences/accountability)

How they feel about the rules/norms for behavior in the case


Identify LeadersIdentify LeadersJobs/work history-

◦managers, supervisors, military officer, teacher

Self confident, Articulate ◦Able to use humor, including about themselves

No narcissists:

◦Big ego, grandiose sense of self importance, etc

Prior jury service


Examples of Case-specific Issues Examples of Case-specific Issues To Cover in Voir DireTo Cover in Voir DireDefendant’s status

Plaintiff lives out of state

Plaintiff out of work since DOA even though medically released to return to work

Secondary collision after accident which is subject of litigation

Felony conviction


Red FlagsRed Flags Doesn’t believe in civil justice system

Tort reformers

Frivolous lawsuits

Caps/limits

Money can’t fix

No general damages

Status matters-different standard for nonprofits, doctors, etc.

Closer potential juror’s personal experience to facts of case = more dangerous


Unemployed people or people who are struggling financially w/o assistance

People who do or have taken care of people with serious disabilities

People who are not satisfied with their life

People who think economy is getting worse

Bitter, sour or angry people

People who don’t think rules are important.

Jurors that use words like “must/always/never/should/everyone”

Jurors that “need to know more”


Law Supporting For-cause Law Supporting For-cause RemovalRemoval

When a cause challenge is proper: If a juror cannot follow or is even substantially impaired from following the law, that is a cause challenge. Wainright v. Witt 496 U.S. 412 (1985)

Two types of bias: Implied and Actual


Implied BiasImplied Bias The law presumes a prospective juror is biased and therefore

disqualified if any of the following conditions exist:

◦ The individual is related by blood or marriage to party or witness;

◦ The individual has another relationship to a party or witness (i.e. fiduciary, domestic, or business);

◦ The individual was a prior juror or witness in litigation involving a party;

◦ The individual has an interest in the litigation;

◦ The individual has an unqualified opinion as to merits based on knowledge of material facts; or

◦ The individual has enmity or bias toward a party.

(Code Civ. Proc., § 229.)


Actual BiasActual BiasProspective jurors are disqualified from a trial

if they cannot act with entire impartiality. (Code Civ. Proc., § 225, subd. (b)(1)(C).) In other words, prospective jurors are properly excluded for cause if they require a party to go beyond the party’s burden of proof, e.g. requiring more than a preponderance of evidence to render a plaintiff’s verdict.

(Liebman v. Curtis (1955) 138 Cal.App.2d 222, 226.)


Examples of Actual BiasExamples of Actual BiasStock ownership in a party to the action is the

type of business relationship that implies bias.

Prejudging the merits of a case based on knowledge of individuals or entities involved in the matter constitutes an “unqualified opinion” for which a prospective juror should be excused.

Enmity and bias established if prospective jurors confirm they will not follow jury instructions if the law went against their conscience.


No RehabilitationNo RehabilitationOnce a prospective juror has admitted

bias, that prospective juror cannot be rehabilitated simply by stating, “I can be fair,” or “I will follow the law.”

Prospective jurors are properly excluded for cause where prospective jurors admit bias but then promise to be impartial or to decide the case according to the evidence presented. (See Lombardi v. California Street Ry. Co. (1899) 124 Cal. 311, 314.)


Scripting the For-Cause ChallengeScripting the For-Cause Challenge First on the leaders and then on everyone else: confirm & reconfirm bias to resist

rehabilitation. Don’t use “can’t be fair”; instead use “not neutral.”

◦ How did you reach this feeling

◦ What are the things in your life led you to this conclusion

◦ Have had feeling for a long time

◦ Why is this important to you

◦ Sounds like these are strong feelings

◦ Fair to say it is the way you look at the issue; a philosophical position

◦ Have voiced this to others in past; would voice it to jurors in jury room if asked

◦ Couldn’t set feeling aside even if another juror told you, you shouldn’t think that way, or if attorneys said have to set aside

◦ Is it true that there is nothing anyone can say to make you feel differently

◦ Agree not neutral

◦ Agree be a better juror different kind of case – agree not case for you


Documents

From 100 days through Opening Statement: Course 2: Jury Selection Topics: Purpose Before Jury Selection Begins Jury Selection (Voir Dire) Cynthia McGuinn