Trial Practice Series - It Depends on the Twelve You Get: A Look at the Jury Selection Process
Note on the “Trial Practice Series”: This is the inaugural article in a new feature for the Wisconsin Civil Trial Journal, the “Trial Practice Series,” the brainchild of Bill Wick at the Nash Law Firm, a co-author of this article. In each upcoming issue, there will be an article on some aspect of trial and litigation practice. The intention is to provide a practical view of common aspects of the litigation and trial process. WDC members are invited to contact Bill or Andrew Hebl, the Journal Editor (firstname.lastname@example.org), to suggest topics that may be of interest.
Many lawyers view the jury selection process, or voir dire, as one of the most important parts of the trial. Trial lawyers have been known to utter the phrase, “It depends on the twelve you get.” In other words, the outcome of a jury trial likely will depend on the people who make the findings of fact—the jurors. You only have one opportunity to make a first impression. In a trial, this occurs during voir dire. In addition to having a significant impact on the outcome, the voir dire process is the first opportunity trial counsel has to interact with the jury. The purpose of this Article is to discuss practical approaches to jury selection.
As a preface, the one constant in jury selection is the lack of uniformity with how it is done. Approaches to jury selection are as numerous as there are lawyers and courts. The law provides little specific guidance about the standards and appropriate procedures, and it is evident that there is no formula or “cook book” approach to selecting a jury.
There are many views on the purpose of voir dire beyond mere selection of the jurors that will hear the case. The collateral purposes of voir dire are many and varied. Some lawyers see voir dire as an opportunity to ingratiate themselves with the jury, others as a process for educating prospective jurors about the facts of the case, and many see it as a way to rid the panel of problematic jurors and obtain people who are likely to be favorable to their client’s case. The scope of this Article is limited to the selection of jurors once they are in the courtroom.
The Applicable Law
The right to a trial by jury is guaranteed by the United States and Wisconsin Constitutions and the Wisconsin Statutes.1 The right to a jury trial may be waived and may not be available if the jury fee is not paid.
Wisconsin Stat. § 805.08 deals with the qualification and selection of jurors. The statute requires the court to examine each person to determine if they are related by blood, marriage, or adoption to any party or attorney, or have any interest in the case, or if they have expressed or formed an opinion about the case. The statute says that jurors “shall” be excused if they are “not indifferent.” The statute gives the parties the right to supplement the court’s examination as to the qualifications of a juror. The examination shall not be repetitious, or based on hypothetical questions.
Where Jurors Come From
The procedure for selecting jurors and getting them to the courthouse is set forth in Chapter 756 of the Wisconsin Statutes. The process begins with the Department of Motor Vehicles preparing a list that includes names, addresses, the county, date of birth, race, and gender of persons who are licensed drivers and those who have received a state identification card. This list goes to the Office of the Director of State Courts.
The Office of the Director of State Courts then compiles a master list of potential jurors for use by circuit courts of each county during the next year.2 In compiling the list, other sources may be relied upon, including voter registration lists, lists of child support payers and payees, orders of approvals, or licenses issued by the Department of Natural Resources. From the master list, a prospective list compiled by random selection is developed based on the number of potential jurors each clerk of court has requested for the coming year.
The clerk of court then mails a juror qualification form and jury summons to each person on the list of prospective jurors to form the jury array. From the array, twelve days before a jury is needed, the clerk of court creates a jury venire by randomly selecting a sufficient number of prospective jurors from the array. When a jury trial is to be held, the clerk randomly selects from the jury venire the number of jurors needed for trial. This is the jury panel. The panel is the jurors present for voir dire in a specific case. The panel includes enough jurors for the selection process to allow for a jury of six or twelve persons and alternates, if necessary.
The court is required to mail prospective jurors a qualification form to obtain information necessary to determine whether a person is qualified to serve. The information in the form varies from county to county. Sometimes these forms are made available to lawyers. The forms can be helpful in doing background research.
Control and Discretion of the Court
Voir dire is conducted under the supervision of the court and the exclusion of jurors is left to the discretion of the court. The court’s exercise of discretion in conducting voir dire will not be disturbed unless it is abused or a rule of law is violated.3 The court has the discretion to allow jurors to be questioned collectively, individually, and/or individually out of the presence of other jurors.4 The court is granted discretion to determine the best method for conducting voir dire.5
In preparing for voir dire, it is helpful to know the judge’s procedure for jury selection in advance. Inquiry can be made at the pretrial conference about how voir dire will be conducted. Some judges prefer to personally voir dire the jury, leaving little questioning to the lawyers. Other judges will ask questions to determine whether there are any statutory disqualifications, and then leave the bulk of voir dire to the lawyers involved. Some courts may limit the time for voir dire. It is also helpful to know what information the court has available about the background of the jurors and when and how the information can be obtained. Counsel will also want to know the method and timing of asserting challenges for cause. Some judges wish to have challenges for cause made at the conclusion of the examination by counsel outside the presence of the panel. Others wish to have challenges raised at the time the foundation has been laid in the presence of the panel. The point is, judges vary greatly in their approach to voir dire.
In an effort to be thoroughly prepared, trial lawyers should attempt to learn as much about the prospective jurors as they can prior to the jury selection process. This can be accomplished in a number of ways.
The questionnaires obtained by the clerk of court from the array may be available to counsel in advance. These questionnaires provide basic demographic information, such as where the jurors live, occupation, spouse’s occupation, children, and distance from the courthouse. If the questionnaires are available in advance, the procedure for obtaining them differs.
Even if the questionnaires are not provided in advance, courts in some counties may still provide counsel with a list of potential jurors for the case in advance of trial. The order in which the jurors will be selected may also be provided.
Finally, some courts provide no information about the jurors in advance. In that circumstance, the first portion of the voir dire usually involves having each juror state their name, where they live, their occupation, spouse’s occupation, whether they have children, and if they have hobbies.
If the names of potential jurors are known, Internet searches may be done. These may include searches for information on Facebook, Twitter, LinkedIn, Instagram, Google, and CCAP. This information can give insight into the jurors’ likes, dislikes, and activities, and can provide information that may be useful in assessing the jurors’ attitudes, interests, and activities.
On occasion, courts will use attorney-drafted questionnaires specific to the case to additionally screen prospective jurors. These questionnaires can be fairly extensive and their use is usually limited to major cases where the potential jurors are likely to know parties or witnesses, or where there has been extensive pre-trial media coverage. When questionnaires are used, the usual procedure is to have counsel submit proposed questions to the court, who decides on the content, and then the court sends the questionnaires to the prospective jurors with a request that the questionnaires be completed and returned. This is usually done at the expense of the parties. The completed questionnaires are made available to counsel for review and, frequently at the pretrial conference or in advance of trial, a conference is held to eliminate jurors for cause or by stipulation based on the responses. The jury questionnaire can generally encompass most of the questions that counsel are likely to ask during the voir dire process, subject to specific follow-up.
With the ever-increasing emphasis on science-based decision making, jury consultants are being employed by counsel more and more. Jury consultants have been used to help develop a science-based approach to jury selection, including a profile of favorable and unfavorable jurors. In addition, jury consultants may participate in the voir dire process by observing body language and assessing responses to determine if jurors’ responses would put them in the favorable or unfavorable category. The use of jury consultants is usually limited to large, high profile cases. Jury consultants can also help develop the criteria necessary for a favorable juror, help identify hidden biases, and assist in pretrial research.
Identifying Juror Attitudes
In many ways, jury selection is more art than science. The purpose of voir dire is to allow lawyers to assess and become acquainted with the beliefs and attitudes of potential jurors. The voir dire process may be aptly described as de-selection rather than selection. The ultimate goal is to eliminate persons with life experiences that may result in a tendency to favor the opposition.
Juror selection has traditionally been based on stereotypes and anecdotal information. Generalizations, such as women will be harder on women, young persons will be more favorable to other young people, and heavy people are more forgiving, have been used. Traditionally, jurors who have been felt to be more favorable to the defense are those who are older, educated, own businesses, are working, have family ties, and have not previously been involved in a lawsuit. Those who anecdotally have been considered to be more favorable to the plaintiff are those who are young, liberal, and those who have previously suffered injuries. It has been assumed that juror occupations that defendants may wish to avoid include doctors, lawyers, teachers, clergymen, social workers, and counselors. One may think that a person in the same profession or occupation would favor a similar profession or occupation. However, that assumption may not be accurate. Professionals or workers in a field may have their own way of doing things that may not be the same as the professionals or workers involved in the case, and these jurors may end up having greater influence during deliberations due to their perceived familiarity with the issues.
That said, although anecdotal or stereotypical beliefs regarding demographics are not necessarily to be disregarded, selecting jurors solely based on them is probably imprecise, at best. Instead, the current trend in jury selection is to be more sciencebased and emphasize the psychological factors that influence decision making. It is reported that jurors develop a hypothesis early on, process information to prove that their hypothesis is correct rather than incorrect, and give preferential treatment to evidence and testimony supporting their pre-existing beliefs. This is known as confirmation bias. Basically, it means that jurors, like all people, have a tendency to hear only those things that tend to support their pre-existing views and disregard the rest. Thus, voir dire should be directed to learning about the preexisting beliefs and attitudes of jurors.
Demographic factors alone do not confirm bias.6 Thus, information about a juror’s personal and emotional commitment to circumstances that are relevant to the case should be used in the selection process. The juror’s personal experiences with issues similar to those in the case may show favorable or non-favorable attitudes. Questions directed to experience in circumstances similar to those in the case may reveal attitudes and emotional commitments that indicate bias. For example, a juror’s experience in dealing with significant injuries or suffering and/or death involving infants, children, adolescents, or parents will provide insight into bias for one party or the other in personal injury cases. Thus, to delve into the potential for confirmation bias, the jurors should be asked collectively about an experience similar to the facts of the case and then, for jurors who have had such an experience, whether that experience will cause the juror difficulty or raise a degree of concern for a person similarly situated, such as the plaintiff. Sometimes, observations of personality and interaction with other jurors, and simply observing the juror’s demeanor during questioning, can provide meaningful information about that juror’s likely predispositions.
An additional function of voir dire is to identify potential jury leaders. It is useful to attempt to identify jurors who may be influential and what attitudes they are likely to have. For example, in cases involving medical or financial issues, health care professionals may have disproportionate influence during deliberations. The same will go for accountants, bankers, or bookkeepers in cases involving financial matters. Whether having a leader on the panel is desirable or not will depend upon the facts and circumstances of the specific case.
Examination of Jurors
When beginning voir dire, most counsel will introduce themselves. Often, the jury is then advised that the term “voir dire” is French for “to speak the truth.” The jury may be told that the purpose of voir dire is to obtain people to decide the case that are indifferent, who have no bias or prejudice, are not favoring or “leaning” toward one side, and who will put all of the parties “on a level playing field.” Counsel usually state that the goal is to obtain fair and impartial jurors without invading their privacy while doing so. The jury is told that the purpose of voir dire is to learn of any personal experiences that will cause the jurors to have a tendency to favor one side over the other.
When counsel is questioning the panel, the preferred approach is for collective questioning of the group with follow-up questions to individual jurors based on the responses. Less commonly, some judges may allow individual voir dire of each juror absent a collective question being asked first. Counsel’s questioning to the prospective jurors may take the form of a general question such as, “Have you ever been involved in a lawsuit?” The follow-up questions to individual jurors who give positive responses may then include asking about the type of suit, whether it was resolved successfully, and whether the experiences caused the person to be biased.
Counsel may also ask if a juror has an aversion to dealing with a particular topic, such as pain of death, viewing graphic photographs, or dealing with certain conditions or injuries. For particularly sensitive issues, such as dealings with alcohol, drug addiction, sexual assault, significant injury or death of loved ones, or any specific experience that may have had an impact on prospective jurors that would cause them to exhibit some form of favoritism, counsel may ask the court to ask the questions instead, as it is believed that a more truthful response may be given to the court than to counsel for the parties in such circumstances. An additional benefit of having the court ask these types of particularly difficult or intrusive questions is that none of the parties ends up getting “punished” for asking them. That is, difficult or intrusive questioning of jurors by counsel for one of the parties may cause the jury to develop a negative impression of that attorney or party due to a perceived invasion of the juror’s privacy. Having the court ask these types of questions instead may help to reduce or eliminate this concern.
Safe questions such as “can you follow the court’s instructions?”, “will you be fair?”, and/or “can you keep an open mind until the end of the trial?” are questions that will rarely get a negative response, and may not be particularly informative in identifying problematic panel members. Jurors, like any people, want to believe that they are fair and impartial. Instead, questions that tend to elicit evidence of potential confirmation bias will be more helpful.
The statute prohibits hypothetical questions. “Hypothetical” is not defined. The court has wide discretion in determining if a question is, in fact, hypothetical. The determination may be a matter of semantics. A question asking if a juror is willing to award $100,000 for a broken leg is likely to be considered objectionable, but a question asking if the juror has a maximum damage amount that will not be exceeded for a broken leg will probably not be considered objectionable.
Additional questions that are objectionable include those that are misleading, that misinform, that ask for a pledge, or those that incorrectly state the law. However, there are no specific guidelines to determine what questions are objectionable. Ultimately, the determination rests with the sound discretion of the court. Questions should be asked that are relevant to determine whether a particular juror will be unbiased with regard to the specific issues in the case.
Questioning the Panel
If general questioning is employed, questions may be directed to the generic “you.” The panel should be advised that “you” includes the juror, his or her family, i.e., husband, wife, children, grandchildren, parents, brothers, sisters and in-laws, and close personal friends. The attorney usually introduces himself and members of his firm. Often, judges ask counsel to identify the witnesses likely to be called in order to find out if any of the jurors know any of the witnesses and whether this will raise potential biases. Inquiry may then turn to the following subjects:
–Prior jury service
–Party to a lawsuit
–Legal training (attorney, paralegal, judge, bailiff, clerk, etc.)
–Order of presenting evidence
–Burden of proof
–Making a claim
–Claim made against you
–Bad experience with a claim (insurance company, claim adjustment, lawyer)
–Whether it was resolved to your satisfaction
–Involvement in similar situations (auto accident, construction project, etc.)
–Types of injuries or damages
–Witnesses to be called
–Lawsuit is an improper way to resolve a dispute
–Defense counsel does not and plaintiff does
–Effect of plaintiff’s ad
–Bad things can happen to good people
–There can be injury or defect without fault
–Negligence or fault may have no bearing on the outcome
–If a lawsuit is commenced, the plaintiff should recover
–Causation (not related as claimed)
–Fair and reasonable
A question that lacks formality may be used to obtain information about jurors’ attitudes without prying, such as, “Have you placed a bumper sticker on your motor vehicle, and if so, what does it say?” Such a question can give significant insight into the person’s attitudes without being overly intrusive. Another example is to ask the juror if he or she would want himself or herself as a juror if he or she was in the position of the plaintiff or the defendant. The jurors may be asked if there is any reason why they cannot devote their full attention to the evidence presented.
Jurors are required by statute to be indifferent. The requirement is considered unconditional and mandatory.7 If a juror is not indifferent, the juror shall be excused. Whether a juror is dismissed for cause rests with the sound discretion of the court.8
Initially, for a juror to be qualified, he or she must be eighteen years of age, a United States citizen, and able to speak the English language. A convicted felon cannot serve unless his or her civil rights have been restored. The court has discretion to excuse jurors for undue hardship, extreme inconvenience or serious obstruction, or delay in the fair and impartial administration of justice.
Jurors may be excused for one of the three forms of bias. These are identified by the Wisconsin Supreme Court in State v. Lindell as statutory bias, objective bias, and subjective bias.9
Statutory bias occurs when a member of the panel is related by blood, marriage, or adoption to any party or any attorney appearing in the case, or has a financial interest in the outcome of the lawsuit. A potential juror meeting any of these criteria must be struck from the panel, regardless of whether he or she can be impartial.10
Subjective bias occurs when a prospective juror states that he or she cannot be fair and impartial. When a prospective juror says that he or she cannot be fair, or has a preconceived impression of what should occur, the juror is subjectively biased. When a juror openly admits that he or she cannot be impartial or indifferent, the juror must be excused.
Objective bias occurs when bias is inferred without a precise admission of lack of impartiality. The focus is on whether a reasonable person in the position of the juror could be impartial. There are no magic words. Objective bias occurs when the juror has a direct or personal connection with an important aspect of the case or holds a negative predisposition to the justice system that prevents the juror from being fair and impartial. To make this determination, the court needs to consider the facts and circumstances. Often, the decision is made more on how the bias is expressed, rather than precisely what is said. Objective bias is difficult to assess because most people believe themselves to be fair and impartial.
Frequently, an attempt is made to rehabilitate the juror. The side favored by the juror’s bias or lack of impartiality may ask questions to try to rehabilitate the juror. When a juror exhibits some degree of bias or favoritism, the judge will typically become involved in the questioning. The question then becomes whether the juror can put aside his or her experiences and be fair and impartial to both parties. Frequently, the response to whether the panel member can be impartial is “I think I can,” “I will try to be,” or “it may affect me but I am not sure.” For example, a panel member’s personal physician may be a key witness in the case, and the panel member admits that the doctor’s testimony will be looked on with favor as a result, but the panel member also says that he or she can be impartial in weighing opposing testimony. Whether the juror has been rehabilitated is then left to the judge’s discretion.
Counsel can ask the court to excuse a potential juror for cause. This occurs when the juror’s response demonstrates bias. As indicated before, the procedure for exercising challenges for cause varies from court to court. Some judges prefer challenges for cause at the end of voir dire. Others want the juror to be challenged at the time that the lack of indifference is expressed. Although many lawyers believe that making a challenge for cause in the presence of the panel will have a detrimental effect on the jurors’ disposition toward their client, when the challenges are to be exercised is determined by the individual judge. Jurors may be challenged for cause if they are not indifferent, or if they show bias or lack impartiality.
The judge’s standard of granting challenges for cause may be more liberally applied early in the voir dire and become more restrictive as the number in the panel declines. Later on in the questioning, jurors who wish to avoid service have typically become educated regarding the responses that will cause them to be excused, and the judge typically becomes stricter about granting challenges as a result in order to prevent truly indifferent jurors from avoiding service by trying to suggest that they are not.
The rehabilitation of a juror is usually accomplished by the juror responding that any bias or prejudice will be set aside, that the juror will be fair to both parties, and that the juror will decide the case solely on the evidence. The appellate decisions do not set forth the criteria for excusing jurors for cause with any specificity. The issue of a juror’s freedom from bias is a matter within the discretion of the court.11 Wisconsin law also provides that the court should grant challenges for cause whenever “it may reasonably suspect that circumstances outside the evidence may create bias or an appearance of bias.”12 Ultimately, this is left to the trial judge.
Peremptory challenges are granted to each party to excuse jurors for any reason that is not discriminatory. They are distinct from challenges for cause, discussed in the previous section, where prospective jurors are removed for recognizable bias or partiality.13
The exercise of peremptory challenges is where the de-selection process discussed above is exercised. Decisions are made based on the juror’s perceived attitudes, experiences, background, training, and demeanor relevant to the issues in the case. The decision is often more art than science. The ultimate decision may be what is generally known as a “gut feeling.”
The statute allows three peremptory challenges to each party. Plaintiffs are deemed to be one party, and all defendants are deemed to be the other party. However, where there are two or more defendants with adverse interests, additional peremptory challenges may be allowed in the discretion of the court, not exceeding three for each defendant. Where alternate jurors are used, one additional peremptory challenge is granted for each alternate.
The jury selection process is ambiguous because the “adversity” between parties necessary for the granting of additional peremptory challenges is not defined. Often, defendants may be adverse on liability issues but aligned on damages issues. There is no statutory direction on the number of additional strikes given to the plaintiff when additional strikes are given to the defendants. In a situation with two defendants and an alternate juror, courts will often give the defendants four total strikes—i.e. two for each defendant—and the plaintiff four strikes. The procedure is for the parties to enter their strikes alternately, beginning with the plaintiff.
All in all, the jury selection process is based on preparation, judgment, and experience. Success may simply be the result of good luck. In the end, the result of the trial depends on the twelve you get.
William R. Wick is a defense lawyer who concentrates his practice in the areas of medical malpractice and general personal injury litigation. He received his B.S. in 1970 from Carroll College, his M.P.A. in 1972 from the University of Southern California, and his J.D. in 1974 from Marquette University Law School. Mr. Wick was certified by the American Board of Trial Advocacy as a Civil Trial Specialist. He is a member of the State Bar of Wisconsin and a past chair of the Litigation Section. He has also been President of the Civil Trial Counsel of Wisconsin now known as the Wisconsin Defense Counsel. Mr. Wick is a fellow of the American College of Trial Lawyers. He has also been President of the Wisconsin Chapter of the American Board of Trial Advocates (ABOTA). He has also been selected to be included in Best Lawyers in America for the last ten years. Mr. Wick is a frequent lecturer on topics involving civil litigation.
Katelyn Sandfort is a member of the State Bar of Wisconsin, the Manitowoc County Bar Association, and the Wisconsin Defense Counsel. She is licensed in the State of Wisconsin and in the Eastern and Western District Courts. Katelyn’s practice covers an array of insurance defense litigation. This includes, but is not limited to, personal injury defense, construction defect litigation, and coverage issues. She also has a special interest in representing health care providers in medical malpractice lawsuits and licensing matters. In her personal time, Katelyn enjoys cooking, trail bike riding, reading, and spending time with her husband and two bernese mountain dogs.
1 U.S. Const., Amendments 7 & 8; Wis. Const., art. 1, §§ 5 and 7; Wis. Stat. § 805.01(1).
2 Wis. Stat. § 756.04(2)(a).
3 See State v. Moats, 156 Wis. 2d 74, 99, 475 N.W.2d 299 (1990); Hamill v. State, 89 Wis. 2d 404, 408, 278 N.W.2d 821 (1979).
4 State v. Coke, 144 Wis. 2d 838, 847, 426 N.W.2d 586 (1988).
5 State v. Britt, 203 Wis. 2d 25, 32, 553 N.W.2d 528 (Ct. App. 1996).
6 See William Kanasky, Jr., “Juror Confirmation Bias Powerful. Perilous. Preventable.,” Trial Advocate Quarterly, at 34-37 (Spring 2014).
7 State v. Ramos, 211 Wis. 2d 12, 27, 564 N.W.2d 328 (1997).
8 State v. Louis, 156 Wis. 2d 470, 478, 457 N.W.2d 484 (1990).
9 245 Wis. 2d 689, 740-46, 629 N.W.2d 223 (2001).
10 State v. Faucher, 227 Wis. 2d 700, 717, 596 N.W.2d 770 (1999).
11 Louis, 156 Wis. 2d at 478; State v. Holland, 87 Wis. 2d 567, 580, 275 N.W.2d 162 (Ct. App. 1978).
12 See Newburg v. State, 75 Wis. 2d 400, 404, 249 N.W.2d 524 (1977).
13 Ramos, 211 Wis. 2d at 27.