By R. Davis

In the realm of civil litigation, understanding how to select a Jury is one of the most crucial processes in ensuring a fair trial. The process of jury selection, also known as Voir Dire, is a critical stage in any trial. The objective is to empanel a group of jurors who can remain fair, impartial, and open minded throughout the proceedings.

As a crucial aspect of the American legal system, the selection of a jury demands a delicate balance between the rights of both parties involved and the principles of justice.

In this blog post, we will explore the art of how to select a jury for a civil trial and identify essential steps and strategies attorneys, or pro se litigants, can employ to ensure a fair and unbiased jury.

Understanding the Importance of Jury Selection

Before delving into the technical aspects of jury selection, it is crucial to grasp why this process holds such a significant weight in civil trials. The jury, consisting of a diverse group of individuals from various backgrounds, plays a pivotal role in assessing the evidence, weighing testimonies, and ultimately rendering a verdict. Their impartiality and ability to evaluate the facts objectively can significantly impact the outcome of a case.

Preparing for Jury Selection

In a federal civil trial, the deciding jury panel will consist of six to twelve jurors. Unless otherwise stipulated, the jurors’ verdict must be unanimous and cannot be rendered by fewer than six members. The recommended practice is to seat more than six jurors in the event one or more jurors cannot continue for any reason. This will ensure there will still be six or more jurors remaining to decide the case.

Thoughtful preparation is essential before entering the voir dire process. Attorneys need to have a deep understanding of the case, the parties involved, and the key issues at stake. Armed with this knowledge, they can better identify potential biases or conflicts that may arise during the jury selection process.

Identifying Jury Pool Demographics

One of the first steps in jury selection is to understand the demographics of the jury pool. In a civil trial, the jury pool typically consists of individuals who reside within the jurisdiction where the trial is being held. Demographic data, such as age, gender, race, and occupation, may be available to the attorneys. However, it is crucial to remember that using this data to exclude or target specific jurors based on stereotypes or biases is unlawful and goes against the principles of fairness.

Drafting Written Questionnaires

To gain a deeper understanding of the potential jurors’ attitudes and biases, if permitted, attorneys can prepare written juror questionnaires. These questionnaires should be crafted thoughtfully, focussing on gathering relevant information without being invasive. Questions should touch on jurors’ backgrounds, experiences, and any potential connections to the case. This information will help attorneys identify potential biases that may impact a juror’s ability to remain impartial.

Written questionnaires, when permitted by the court, are provided to prospective jurors before the start of voir dire. This practice can help narrow down the number of prospective jurors before starting oral voir dire. With fewer prospective jurors present during voir dire, I find it easier to focus my concentration on those remaining, rather than sharing attention with the individuals who will never qualify after voir dire.

Written questionnaires also permit extremely biased individuals to be removed “for cause” before sharing their opinions in the presence of other potential jurors. One person verbally sharing a negative opinion of the client or case, in the presence of other potential jurors, creates a possibility to contaminate the entire jury pool. I prefer avoiding that catastrophe whenever possible.

Conducting Voir Dire

The voir dire process involves questioning prospective jurors in court to assess their suitability for serving on the jury. Attorneys from both sides have the opportunity to ask questions and engage in conversations with potential jurors. The goal is to uncover any biases or prejudices that might influence a juror’s decision-making during the trial.

In federal court, the voir dire may be conducted by either the judge or by counsel. Often, the judge does it because it’s faster. If voir dire will be conducted by the judge, the parties are usually encouraged to submit proposed questions to ask the prospective jurors. Then, counsel will generally be permitted to ask follow-up questions. It is important to understand, a judge has broad discretion in the manner voir dire is ultimately conducted.

Avoiding Common Biases

During voir dire, attorneys must be vigilant about recognizing and addressing common biases that could impact a juror’s impartiality. Some common biases include:

• Confirmation Bias: When individuals are more likely to favor evidence that supports their existing beliefs.
• Implicit Bias: Unconscious attitudes or stereotypes that may influence decision-making without one’s awareness.
• Groupthink: When jurors prioritize harmony and consensus over critical evaluation of evidence.
• Authority Bias: The tendency to defer to perceived authority figures in the deliberation room.

Evaluating Challenges for Cause and Peremptory Challenges

Once the voir dire process is complete, attorneys can make challenges “for cause” to remove potential jurors who exhibit clear biases or conflicts of interest that would prevent them from being impartial. “Peremptory challenges,” on the other hand, allow attorneys to dismiss a limited number of jurors without stating a specific reason. However, it is essential to use peremptory challenges reasonably, as they can be subject to scrutiny for potential discrimination.

In Edmonson v. Leesville Concrete Co., 111. S.Ct. 2077 (1991), the Supreme Court recognized the same concept adopted by the criminal jury selection process  excluding a potential juror based solely on race, or simply because they are a member of a protected class, is forbidden.

If a party wishes to allege some form of discrimination is occurring during the jury selection process, the complaining party must establish a prima facie case of discrimination, including whether there has been a pattern of strikes against members of a protected class.

Balancing Jurors Attitudes and Experiences

Successful voir dire will lead to forming a balanced jury. A balanced jury is one that represents a cross-section of the community and includes individuals with diverse perspectives, backgrounds, and life experiences. Such diversity can foster a robust deliberation process and help ensure a well-rounded examination of the evidence.

My Final Thoughts

Selecting a jury for a civil trial is a complex process that requires skill, strategy, and respect for the principles of fairness and impartiality. By carefully preparing, conducting thoughtful voir dire, and addressing biases responsibly, attorneys can help create a jury that upholds the fundamental values of the legal system. A fair and impartial jury is essential to maintaining trust in the judicial process and ensuring justice for all parties involved in civil litigation.

Within The Colossal Book of Civil Citations I have a section containing sample voir dire questions. The questions are excellent for use in a prisoner’s 42 U.S.C. Section 1983 lawsuit. If you have a loved one or friend who is incarcerated and being denied their guaranteed rights, and will be filing a civil lawsuit, consider purchasing this book on their behalf. My book contains all the relevant topics necessary to successfully litigate a Section 1983 lawsuit in federal court, including selecting a jury. Order your copy today!

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