Optimizing Jury Selection in Commercial Litigation: Strategic Use of Questioning, Strikes and Social Media

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TUESDAY, MARCH 11, 2014

Presenting a live 90-minute webinar with interactive Q&A

William E. Hammel, Partner, Constangy Brooks & Smith, Dallas

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Optimizing Jury Selection

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William E. Hammel Partner

Constangy Brooks & Smith 1201 Elm Street

Suite 2550 Dallas, TX 75270 whammel@constangy.com

Procedures

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Jurors are initially chosen at random, then deliberately

Three Stages: 1. compile master jury list 2. draw the venire 3. conduct voir dire

The Venire

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• Jury pool, a master list of names

• Common sources include, voter registration, motor vehicle records, telephone directories, driver’s license lists, utility customer lists • Names drawn from the master jury list and asked to report for jury duty – the venire

Voir Dire

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• Means “to say what is true”

• Examination of a prospective juror to determine if he/she can be fair and impartial

• Typically within the sound discretion of the trial court, so the process varies significantly – many times, the Court will partially or fully conduct the voir dire

• Scope and intensity of the questioning can vary a lot

Purpose

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Probably the most important phase of a trial Purpose is to:

1. seat a fair and impartial jury

2. test qualifications for exercise of challenge for cause

3. obtain information for use in the exercise of peremptory strikes • root out the bad, keep the good • most important to determine those who dislike your client or your case • minimize identification of those with positive attitudes to your case

4. impart information and, where possible, predispose jurors to ideas and positions Tie your voir dire to your anticipated jury argument – use the same language

Preparing for Voir Dire

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• know your venue’s jury pool • find some to help – don’t do it alone! • know how long you have to question • get a copy of the jury list

• know how many jurors you get • know how many peremptory strikes you get • know how to challenge for cause • always remember to preserve error

Jury Consultants

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Expensive; typically used in high damages cases If you have access to a jury consultant, take advantage of it • opinion polls • focus groups • mock voir dire and trials • jury questionnaires • attend the voir dire and help select jurors Nice luxury if your client can afford it

Questionnaires

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• Your time is always limited more than you would like, so questionnaires help identify adverse jurors – you can learn more from a 1 page questionnaire than you would with an hour of voir dire time • Counsel is responsible for: preparation, copying, disseminating, clip boards, pens, collecting completed questionnaires, copying when completed, and ensuring originals are part of the record

• Keep it short… no more than 3 pages – 5 pages for complex cases

• Every yes/no answer should have a follow up “why” or “explain” question

• Try to agree with opposing counsel. Include questions your opposing counsel would want to know too. It is better to identify and exclude the bad jurors than it is to keep the perceived good ones

Questionnaires Continued…

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Ask about: • Life Experiences – education, employment, and experience with facts of the case • Values: what words or adjectives would you use to describe yourself? how would others describe you? name the three people you admire most and least are you a leader, a follower, or a team player?

• Juror information cards tell you who the juror is, but questionnaires should find out what the juror is all about • Most folks do not like speaking in front of others

• Questionnaires give shy jurors a chance to express their opinions beforehand in writing

The Shuffle

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• In most jurisdictions, a shuffle must be requested and performed before voir dire begins • Must be before jury questionnaire • Only one shuffle per case

Juror Strikes: Cause & Peremptory

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• Challenge for Cause: challenged because he/she cannot be fair • Peremptory Strike: sought to be excused without providing a reason

Cause Challenges

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Usually based on the statutes governing the qualification of jurors and is usually at least somewhat straightforward. Includes:

• witness in the case

• interested directly or indirectly in the subject matter of the case

• related to someone involved in the case

• bias or prejudice against or in favor of a party in the case No limit to the number of cause strikes

Common Challenges for Cause

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• not a United States citizen

• no ability to speak and understand English

• related to/friend of a party, an attorney, or a witness

• has personal knowledge of the facts of the case

• has animosity toward a party or attorney

• stockholder of a party

• insured of an insurance company party

• personal bias against the nature of the suit

• the inability of the juror to award a certain sum of money if that sum is warranted by the evidence

• physical incapacity that could prevent him/her from effectively performing a juror's functions, after considering available reasonable accommodations

Bias Must Be Specific

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• Broad allegations of bias or interest are insufficient – must be a showing of a particular bias or prejudice

• It is not the weight the juror would give to certain facts. Asking which party is starting out “ahead” is typically an attempt to elicit a juror’s opinion on the evidence – that is not bias

• Initial “leaning” is not enough if it represents skepticism, rather than an “unshakeable conviction”

• The possibility of not being fair is not enough, pursue it until the record shows grounds to believe that the juror is biased

• Bias against a party’s race, nationality, national origin, etc.

• Bias against prior convictions of parties or witnesses

• Cannot focus on one specific fact of the case and ask whether the juror could be fair, regardless of the other evidence, based on that one specific fact

• Remember, bias can be "against" something or "in favor" of something

• Do not ask Commitment Questions

Rehabilitation

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• Jurors can rehabilitated through further questioning

• Limits of rehabilitation are within the discretion of the Court • Rehabilitating attorney will play to the juror’s sense of fairness

• Does not turn on the use of “magic words.” Jurors may be disqualified for cause even if they say they can be “fair and impartial,” so long as the rest of the record shows they cannot • Having a “fixed opinion” is sufficient to justify disqualification. Subsequent recantation does not prevent disqualification

Save the Bulk of Cause Questioning for the End

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• Questioning for cause consumes a lot of time

• Once you suspect you have a basis to challenge the juror, ask if you can ask additional questions at the close of voir dire • Easy to remember exactly how many jurors are being challenged for cause • Jurors are less likely to figure out what they need to say to be excused if challenges are made at the conclusion of voir dire at the bench • Minimizes the impact of “We can talk about that later” jurors

Preserving Error

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1. Demonstrate that the juror should be removed for cause because the juror is disqualified 2. Move to strike the juror for cause 3. Obtain a ruling from the court on the challenge for cause 4. Object to the court’s denial of the challenge for cause 5. Before using peremptory challenges, the objecting party must inform the court that: a. having overruled the challenge for cause you will exhaust your peremptory challenges b. after exercising your peremptory challenges on the juror previously challenged for cause, identify a specific objectionable juror that you would have struck remain on the jury list (name them) If your voir dire time is restricted, preserve error on the record by arguing that you cannot

effectively exercise peremptory challenges or challenges for cause in the time frame allowed

Peremptory Strikes

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• Reject jurors without stating a reason

• Limited number, usually get three to six peremptory strikes

• Courts typically equalize strikes as to each side of the case

• Most effective part of your voir dire

Limits of Peremptory Challenges: Batson

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• Must be made before the jury is seated and before the venire panel is dismissed

• Batson challenge made in a motion for new trial is untimely

• Held in open court; must afford the parties an opportunity to fairly present positions • Protected classes include race, gender, ethnicity, disability and religion. The party challenging the strike need not be a member of the protected class that is being challenged as discriminatory

Batson Procedure

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Three Step Process 1. Identify a Protected Class. Complaining party must establish that the peremptory challenge was directed towards a member of a protected class and that it raises an inference that the strike was made on account of the protected class Factors include: whether a party struck all members of a protected class (most common) whether the examination revealed an intent to exclude members of the protected class

Batson Continued…

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2. Neutral Explanation. Once a prima facie showing of discrimination is made, the burden shifts to party exercising the strike to offer a neutral explanation Explanation must show that the challenge was based on something other than the juror’s protected class. Here, the inquiry is the facial validity of the explanation, not whether the court ultimately believes it. Examples of facially-neutral explanations include: blanks, mistakes, misspelled words, or contradictions in responses to juror questionnaire subjective impressions from voir dire: looked hostile, turned away, frowned, smiled, too much or not enough eye contact, rapport with the opposition, chewed gum friendship or acquaintance with party or counsel not otherwise subject to a for cause strike numerical place on panel – a strike that was made to get at a better juror down list (you need a really good reason why the next juror was so much better, though)

Batson Continued…

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3. Determination. Finally, the trial court must determine whether the explanation offered is plausible or is pretext for purposeful discrimination. Courts consider: the reason given for the peremptory challenges as related to the facts of the case whether there was a lack of questioning to challenge a juror whether the responses of other jurors to voir dire questions were given disparate treatment • asking question to evoke a certain response without asking the same questions of other panel members • “targeting” minority jurors with questions of bias, etc. An explanation based on a group trait is not sufficient unless that trait is shown to apply to the particular juror at issue Be careful, sometimes the challenging party may call the opposing attorney to testify under oath or obtain attorney notes

“Rules”

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1. Write questions out well in advance 2. Always have help, especially to take notes and to watch for body language and other reactions, both during your voir dire and your opponent’s 3. Have all aspects of voir dire examination recorded: all rulings, objections, lists of peremptory challenges, and the stage of the proceedings when each were made 4. Take advantage of the first five minutes 5. Always use juror questionnaires

“Rules” Continued…

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6. Encourage the expression of experiences, attitudes, and values 7. Involve jurors early on in your voir dire 8. Focus on juror experiences with issues in your case 9. Focus on the first 25 jurors – don’t spend a lot of time with jurors who will probably not sit on the panel! • Extend out due to for-cause challenges if some of the first 25 jurors are subject to a cause challenge, make sure to speak with a corresponding number past 25 • Exception is if there is an “expert” juror beyond #25 who can educate the panel 10. Normal public speaking rules apply

Planning Your Voir Dire

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• Identify the issues or facts in the case that trouble you the most

• Consider why the issues or facts are troubling

• What portions of the case are not clear

• Remember, voir dire is the first time that jurors hear about the case

• Outline Format 1. Introduction 2. Overview of the Case 3. Strong Points 4. Weak Points 5. Strongest Point 6. Conclusion

Questioning Techniques

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• Speak with the juror the same way you would speak with a stranger. Be (or act) interested • Try to find out about the juror's life, family, hobbies, job, and the things that are important to him/her • Try to find things in common with the juror – builds rapport • Use open-ended questions closed questions bring silence and no feedback: Does anyone believe… use closed questions when making challenges for cause • Be patient for the juror’s answer – silence will get them talking

Questioning Techniques Continued…

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• Listen and follow up appropriately – clarify what the juror thinks Why do you feel that way? Can you tell me what makes you say that? Learn, don’t teach • Speak to jurors with respect, even when a juror expresses a bias or prejudiced attitude • Look at the juror, not at your notes or your next questions

• Do not take notes, let someone else do that

• Do not give a lecture, the point is to open a dialogue

• Do not speak like a lawyer using legalese • Be yourself

The Three E’s

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1. Elicit Information • speak with seven jurors per topic • no more than three questions at a time per juror 2. Establish Rapport and Credibility • do not be judgmental • do not avoid bad facts 3. Educate by having jurors teach each other – looping • one of the most effective techniques • ask one juror a specific question. Use juror’s name, repeat the exact answer, and ask another juror for a reaction to the first juror’s answer. Do it again for a third juror, and so on • most effective way to handle bad answers

Handling a “Bad” Answer

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• When receive a “bad” answer, thank and praise the juror for their answer • Then ask: how many of you agree with juror number 4? how many of you disagree? looping questions

Do’s & Don'ts

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Do’s:

• be candid and informal

• listen to the juror’s answers and ask follow- up questions

• have the reporter take down voir dire

• remember the purpose of your questions is to educate and to give you a basis for deciding: who’s honest who’s not who’s strong who’s weak who’s prejudiced

• begin with your theme

Don'ts:

• attack the adverse party or counsel – let the facts do this

• talk too long – be brief and to the point

• proceed down the row asking the same question to each juror

• “run” from bad jurors

• waste time explaining the meaning of voir dire

• read the pleadings

• make a promise you cannot keep

• lose control

• cross-examine jurors

• interrupt jurors when answering questions

Golden Rules

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• Use visual aids • You will never be able to convince potential jurors to give up years of carefully cultivated bias. • Uncover biases, get biased jurors dismissed for cause, and have enough information to exercise your peremptory strikes • Talk about the tough topics • Pay attention to what the jurors think about the way voir dire is conducted • Tailor questions to maximize candor use open ended questions use phrases like "How many of you..." as opposed to "Do you....“ use general questions to probe juror’s beliefs and experiences

Golden Rules Continued…

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• Use specific questioning techniques to uncover juror bias and to establish a foundation for dismissal for cause -- give a biased juror “enough rope” begin with open-ended questions use close-ended questions when pursuing a challenge for cause use a combination of open and close-ended questions to encourage reluctant jurors to talk know when to shut down difficult jurors be prepared for negative responses look for ways to discourage “me too” answers pay attention to qualifiers and equivocations address less sensitive or difficult topics first – give jurors time to get comfortable with questioning process

• Look for ways to make the jury selection process more efficient. ask to use supplemental jury questionnaires ask for an alternative oral questioning format don’t overlook the bottom line - no personal injury voir dire is complete without a discussion of damages (especially for plaintiffs) • If you don’t exercise your strikes, a potentially bad juror will make it on your jury

More Don'ts

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Don’t ask:

• Do you understand what the law says/requires?

• Does anyone have a problem with…

• Will you keep an open mind and not decide this case until you have heard all of the evidence?

• Can you set aside your bias and decide this case on the facts

• Has anyone formed an opinion about…

• Will you promise me that… * Also, don’t say that this is a complex case – you must simplify!

Using Social Media

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Social Media

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• People are more likely to express views on community issues and politics in social media • Create a social media outline for each juror by running Google searches and social media sites - Facebook, Twitter, LinkedIn, Google+, Tumblr, Flickr, Yelp, YouTube, Instagram and Pinterest • If you find a common username associated with that person, run a search for the username in other sites. Use of the same username across websites may allow you to identify “anonymous” communications • Look carefully at who/what a juror “liked” or endorsed • Information obtained from social media should be used for generalized questioning and further exploration of a juror’s views – do not reveal specific information • Don’t go too far, jurors will think it is creepy • Make sure you have the right juror • No Contact Rules apply – do not friend request a potential juror!

Questions?

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