Picking Juries: Questionnaires and Beyond (2008)

A prior version of this article was presented at Medical Liability Committee Meeting during 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 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 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 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 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 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 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 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 biased juror. As we perform important task of selecting jury, questionnaires specific to case are increasingly becoming a part of 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 health care providers involved and tort reform are often subjects that bear inquiry. questionnaires provide important information and allow jurors to perhaps answer some of 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 use of jury questionnaires. One consultant advises, however, that 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 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 judge will permit less attorney-conducted voir dire because of use of questionnaire. A questionnaire can never give full flavor of intensity of a juror's feelings about an issue, salience of issue to 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 questionnaires were obviously intended to help both sides in case categorize jurors according to several broad themes, they also had fascinating effect of taking a sociological snapshot of eighteen ordinary citizens at a time when steel barriers were being erected to protect federal courthouse from a potential terrorist assault. …