Presenting a live 90-minute webinar with interactive Q&A Optimizing Jury Selection in Commercial Litigation: Strategic Use of Questioning, Strikes and Social Media TUES DAY, MARCH 11, 2014 1pm East ern | 12pm Cent ral | 11am Mount ain | 10am Pacific Today’s faculty features: William E. Hammel, Partner, Constangy Brooks & Smith , Dallas The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Optimizing Jury Selection William E. Hammel Partner Constangy Brooks & Smith 1201 Elm Street Suite 2550 Dallas, TX 75270 whammel@constangy.com 5
Procedures Jurors are initially chosen at random, then deliberately Three Stages: 1. compile master jury list 2. draw the venire 3. conduct voir dire 6
The Venire • 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 7
Voir Dire • 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 8
Purpose 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 9
Preparing for Voir Dire • know your venue’s jury pool • know how many jurors you get • find some to help – don’t do it alone! • know how many peremptory strikes you get • know how long you have to question • know how to challenge for cause • get a copy of the jury list • always remember to preserve error 10
Jury Consultants 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 11
Questionnaires • 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 12
Questionnaires Continued… • 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 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? 13
The Shuffle • In most jurisdictions, a shuffle must be requested and performed before voir dire begins • Must be before jury questionnaire • Only one shuffle per case 14
Juror Strikes: Cause & Peremptory • Challenge for Cause: challenged because he/she cannot be fair • Peremptory Strike: sought to be excused without providing a reason 15
Cause Challenges 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 16
Common Challenges for Cause • 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 17
Bias Must Be Specific • 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 18
Rehabilitation • 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 19
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