by Patrice Truman, Esq.
The California Legislature bestowed upon trial lawyers some invaluable gifts that took effect on January 1, 2012: In civil court, the right to have a reasonable juror questionnaire presented to a jury pool for completion, and a reasonable amount of time for counsel to review and evaluate each completed questionnaire. To help facilitate the jury selection process, the law states that the judge in civil trials should provide the parties with both the alphabetical list and the (random) list of prospective jurors in the order in which they will be called into the jury box. CCP section 222.5. While the definition of “reasonable” remains subject to interpretation by each trial judge, this newsletter discusses the components of an effective questionnaire and what jurors say about it.
Compose an Organized Questionnaire
Drafting a concise and specific questionnaire reflects the general subject and targets the core issues of a case. Specifically, the questionnaire begins with the demographic questions. This serves to reassure the more inexperienced jurors who sometimes express concern that the questionnaire could be an intelligence test seeking opinions on “legal matters.” Therefore, the beginning should be standard, routine, and easy. There are no trick questions or hidden agendas; rather, the purpose is to gather demographic facts about age, residence, occupation, marital status, educational background and other basic facts.
The most valuable question on page one is occupation because it serves to highlight the juror’s skills, self-identity, and potential for involvement in the deliberative process. Occupation could indicate if a person might hold opinions that could be a hindrance or a help during the jury’s evidence analysis, based on one’s work - life experiences and interactions with others. For the attorney and jury consultant evaluating the totality of the responses, having demographic information readily available on the first page presents a quick reference guide of each juror at a glance.
Questions Should Show Some Variety
Another outlier question inquires into the occupations of deceased or living family members, mother, father, siblings, and any relative or close relation. One’s economic status as a child often influences adult perceptions of the plight of others, work ethic, and even empathy. For example, counsel should consider that one prospective juror is the daughter of a heart surgeon and who knows economic comfort and security, especially throughout childhood; on the other hand, another juror grew up the son of a used car salesman, and feels acutely aware of financial instability within a family.
The Core Substance
Stylistically, the core questions are drafted with a wide net to capture the experiences of the prospective juror, and also those of close friends and family, e.g., “Have you, family member or friend ever…” with continuous probing for elaboration after the Yes or No responses. Also important are the “How do you feel about…” inquiries, or the “What is your opinion about…” The open-ended questions also allow counsel to assess how a prospective juror expresses opinions and reveals biases that may mimic prevalent opinions in the media—such as “too many frivolous lawsuits,” because America has the “get rich quick” mentality, or certain folklore—the one still mentioned in every jury selection process—that the McDonald’s verdict was “ridiculous.”
In reviewing and evaluating the responses to a questionnaire, counsel should not be dissuaded from keeping on the jury a person who appears to have little knowledge or experience about the core case issue. The reason is simple: Better that counsel can develop their thinking on this topic by teaching the case issues rather than having a juror draw upon their “knowledge” in such a way that may not accurately engage with the facts. Indeed, this may create a skewed analysis and reasoning when answering the verdict form.
Include the 21st Century Questions
Damages, Empathy and the Sensitivity Questions
Other questions that give some hints about a prospective juror’s personality might be detected in a response about volunteer activities, parenting philosophy, or a life changing experience. To the question, “What opinion did you once have but no longer believe due to a life experience?” a politically conservative father stated he felt more open-minded towards gays and lesbians after his only son came out about his sexuality. Or, asking a juror to describe oneself in five words captures some candid self-assessments of one’s personality.
Abusing the Use of a Questionnaire in Conjunction with Voir Dire
As one juror recently complained after completing an 11 page questionnaire and sitting through three days of oral voir dire, “What was the purpose of filling out that questionnaire? It did not save time as they promised!” Of course, the attorney who taxes jurors’ patience suffers a loss of credibility and potentially jeopardizes the outcome of the case for the client.
In the end, a juror questionnaire allows counsel to evaluate written responses composed when a prospective juror does not sense the spotlight or pressure of communicating aloud in a public forum, as with voir dire. Following that, voir dire offers counsel the opportunity to assess whether a potential juror could graciously interact with others in deliberations, or by contrast, project a bossy and uncompromising tone that might offend others.
Counsel, take the Legislature’s gifts of the right to a questionnaire and its accompanying benefits and use them wisely.
Patrice Truman, Esq., is a jury and trial consultant working throughout California and elsewhere, with an office in Berkeley, California. She can be contacted at 510-528-4655, by email at firstname.lastname@example.org or through her web site, http://www.trumanassociates.com. She welcomes suggestions and topics for future newsletters.
Copyright © 2012, Truman & Associates