A prior version of this article was presented at the Medical Liability Committee Meeting during the IADC 2008 annual meeting at The Greenbrier, White Sulphur Springs, West Virginia, where Mssrs. Hurney and Sellers spoke on jury selection. The laws of Alabama and West Virginia are featured in this article because that is where the authors practice.
SELECTING a fair jury continues to be a sometimes daunting task for defense counsel. A Harris Poll, released January 21, 2008, contains some interesting findings about jury duty:
One of the civil duties many people
dread, or try to get out of, is jury duty.
And many do seem to get out of it--while
two-thirds (65%) of Americans
have been called to serve jury duty,
two-thirds of that (68%) actually
attended, leaving one-third (32%) who
did not. Of those who have attended
jury duty, just over half (55%) have
actually served on a jury. Bringing this
back to the population as a whole, a
plurality of Americans (44%) has
attended jury duty and one-quarter
(24%) has actually sat on a jury. (1)
The article discussing the Harris Poll notes, "the reverse can also be said--three-quarters of Americans have never served on a jury and over half have never even attended jury duty. Unfortunately, looking at the numbers this way clearly shows a civic duty that many may be ignoring." Thus, in picking juries, we certainly face folks who do not want to be there, and search for a way off the jury panel.
Against this backdrop, voir dire presents an important and challenging task for every defense lawyer as we attempt to determine which jurors are possibly biased against our clients. (2) Some courts allow full voir dire by counsel, some by the court, and some do both. (3) We defense lawyers are barraged with information about how to pick juries, to perform voir dire effectively, and recognize the biased juror. As we perform the important task of selecting the jury, questionnaires specific to the case are increasingly becoming a part of the process. Typically, questionnaires are drafted by both sides and submitted by agreement. These questionnaires are particularly prevalent in medical liability cases, where issues related to jurors' experiences as patients or knowledge of the health care providers involved and tort reform are often subjects that bear inquiry. While questionnaires provide important information and allow jurors to perhaps answer some of the more personal questions in a private setting, they are no substitute for voir dire. Regardless, they are a valuable tool in attempting to seat an unbiased jury.
I. Use of Questionnaires: General
Jury consultants generally counsel in favor of the use of jury questionnaires. One consultant advises, however, that "there are a number of instances where jury questionnaires may be harmful in trying to get a jury that will be most receptive. For instance, few attorneys, in their eagerness to have a jury questionnaire, stop to think why their opponents are equally eager to have one." (4) "While a questionnaire may offer the opportunity to ask questions that would never be posed in open court, there is a danger when it becomes a substitute for posing questions in open court. Often the judge will permit less attorney-conducted voir dire because of the use of the questionnaire. A questionnaire can never give the full flavor of the intensity of a juror's feelings about an issue, the salience of the issue to the juror, and his or her knowledge about it." (5)
The necessity of good voir dire following questionnaires is addressed in a New York Times article discussing a jury questionnaire used in a terrorism trial: "[W]hile the questionnaires were obviously intended to help both sides in the case categorize the jurors according to several broad themes, they also had the fascinating effect of taking a sociological snapshot of eighteen ordinary citizens at a time when steel barriers were being erected to protect the federal courthouse from a potential terrorist assault. …