During the ongoing pandemic, courts have been understandably reluctant to invite large numbers into their chambers for trial, and particularly for jury selection. That situation has driven renewed consideration of supplemental juror questionnaires that can be administered and collected online. Both to gather medical and exposure-related hardship information, as well as the experiences and attitudes that matter more directly to the case at hand. The use of these questionnaires, as a way to streamline and focus either online or in-person voir dire, makes a lot more sense to judges in this context.
That said, questionnaires have always made sense, even before the pandemic, but have not been used nearly as much as they should be used. The biggest fans for questionnaires are often trial consultants like me. Some attorneys are also fans, but many seem to have the worry that a comprehensive questionnaire will provide too much risk of “helping the other side.” The reality is that typically questionnaires help both sides, with the advantage going to the side that uses the information more effectively. Only in very rare situations will it be a good strategy for your side to be consciously in the dark about the panel by avoiding a jury questionnaire. In this post, I will offer a few reasons why counsel should generally worry less about helping the other side with a jury questionnaire.
Because You Are Going to Take Care in Crafting Your Questionnaire
One great strategy is to be the first one to propose a questionnaire and to share a draft. The other side will respond with additions and deletions, but you will have an edge in setting the focus on wording the questions if you get there first. Naturally, your focus is going to be on uncovering the attitudes and experiences that will be higher risk for your client, without unduly spotlighting targets for the other side. That takes careful thought, but it can certainly be done.
Because the Process Leads to Balance
Each side has a strategic interest in creating and approving a questionnaire that helps its own side more than the other side. If both sides are doing their jobs, then these competitive drives tend to cancel each other out, and you end up with a questionnaire that gives something to both sides. And ultimately, of course, the court is there to enforce that.
Because You Believe You Can Use the Information Better
Both sides have access to the same set of facts and to the same body of law. But, because you are an advocate, you believe that you can use the facts and the law better than the other side, right? Like the facts and the law, the information on the jury panel is also a starting point that both sides can access. Why not apply that advocate’s attitude to voir dire, as well? Both sides will learn, but you believe your side will put that information to better use. You won’t always be right, but as a good advocate, you will always be aiming in that direction. Use your research and have a system for rating the potential jurors based on their questionnaire response.
Because Mutual Blindness Is Only Very Rarely Strategic
It is theoretically possible that within your venue, there will be a common bias that helps you, and adding a questionnaire would just help the other side identify and strike those individuals. For example, if pretrial publicity has skewed the population in your favor, it could conceivably be better to not ask about that skew and just rely on the law of averages to help get a better jury for yourself. While that is a conceivable scenario, in my experience, nine times out of ten (or even ninety-nine out of a hundred) that is the wrong way to think about it. The better course is to work to frame the questionnaire so as to minimize any opposition advantage. For example, you could write the question so as to mediate the response rate: A relatively small response (“Have you decided the case based on media reports?”), or a very large response (“Have you been exposed to any relevant media reports?”) are likely to offer the least help to the other side. And, in the process, you would still be able to use the questionnaire to find the few who come down on the flip-side of that bias.
The choice of a questionnaire usually comes down to this: Presuming the effective use of your own preparation, skill, and resources, it is better to know more, rather than less, about your panel.
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