Make the most of the group’s jury selection

Group voir dire is a complicated matter: it is not easy to get a jury in the courtroom to speak and easily reveal the biases that will hurt you. Despite this general difficulty, there are some advantages to jury selection in an employment case. The most obvious is that courtroom juries have many relevant experiences, opinions, and biases that they would love to reveal, if given the opportunity. I found that in voir dire group situations, the best strategy is to come armed with a short list of very good questions and aim for as many potential jurors to answer those questions. When you approach voir dire in this way, you experience the following benefits:

• The judge will hear the jurors speak, not the attorneys. I have never heard a judge tell jurors to “hurry up” when they are speaking, but I have heard many judges give attorneys the “hook” when question after question goes unanswered.
• The members of the jury hear each other speak. This encourages them to feel more comfortable responding. It also makes them feel more positive about the voir dire experience: When jurors are asked questions that they can relate to and respond to, they feel that voir dire is really a meaningful process.
• The attorney can compare apples to apples before bringing a peremptory challenge and case. When multiple jurors answer the same key questions, biases can be more accurately assessed along a continuum. Obviously some “apples” are only slightly bruised, while others are rotten to the core.

Some attorneys are uncomfortable with the concept of exposing biases that can harm them in public hearing. They believe that these biased jurors could contaminate the other potential jurors. In countless jury selections, I have never seen this happen. Harmful biases are not passed from one person to another like the stomach flu. Instead, exposed biases simply allow you to succeed in more challenges for a cause, as well as exercise your peremptory challenges more intelligently. There is no point voir dire if lawyers avoid exposing the same biases that can prevent them from winning a winnable case. So, with that in mind, here are some of my favorite voir dire questions for both plaintiffs and defendants in employment cases.

For the plaintiffs:

1. Do you think it is too difficult to fire people?
2. Have you ever worked with someone who should have been fired but wasn’t?
3. Have you ever wanted to fire someone but were told you couldn’t?
4. Have you ever been falsely accused of treating a subordinate unfairly?
5. Has a subordinate or coworker ever complained that they were treated unfairly when in fact their performance was poor?

These questions are some of my favorites for plaintiffs because jurors who answer yes are more likely to have an ax to criticize employees who complain about their rights being violated. They are also more likely to have a negative opinion about labor laws – rather than seeing them as necessary protection, they are more likely to see them as an impediment to a well-functioning workplace. Question # 4 asks if a person has ever been “falsely” accused. This is key because jurors do not want to admit that they have been charged with something. By describing the accusation as false, the jury identifies with the feeling that it was wronged, making it easier for them to admit the experience and discuss it.

Follow-up questions are as simple as saying “tell me why” or “tell me more to find out where you come from.”

For the accused:

1. Have you ever been fired from a job? What was your impression of how your employer was regarding the layoffs? Did you think they were necessary? Unnecessary?
2. Have you ever worked for a company that was involved in major layoffs or layoffs? What was your opinion about how the employer handled this situation?
3. Have you ever worked for a supervisor who treated you unfairly?
4. Have you ever been in a work situation where you felt the employer was not concerned about _________? (Fill in the blank – it could be the employee’s rights or health, or safety or adaptive disabilities, or some other topic relevant to your case.)
5. How do you expect an employer to handle a problem employee?

These questions are some of my favorites for defendants because they expose jurors who are most likely to view the defendant-employer through a negative lens. Question n. 1 doesn’t ask about layoffs because people don’t like to admit they’ve been laid off. For a juror who loses his job, a layoff can be just as traumatic as a layoff and cause the same degree of resentment. By asking about layoffs, the attorney can expose whether the jury has negative feelings and unreasonable expectations about an employer who has had to fire employees. Follow-up questions will reveal whether the jury accepts or rejects the employer’s stated need for layoffs. I’ve heard jurors respond both ways: Some say, “That’s life. It was a tough economic downturn.” Others say they “still managed to pay the CEO millions and millions of dollars. I definitely think jobs could have been saved if the executives hadn’t been so greedy.” Questions n. 3 and n. 4 will give the attorney an idea of ​​whether the jury feels he or she has been a victim and whether employers generally care or ignore the needs of employees. Question n. 5 gives the attorney an idea of ​​what kind of processes and procedures juries expect for discipline and dismissal. Seeing the dire answers to these questions helps the attorney discern whether his client is likely to meet or disappoint the jury’s expectations.

Group voir dire is a unique communication experience. The ordinary rules for questions and answers do not apply because in this setting, the most normal jurors (i.e., not the most daring, outspoken, or biased) will naturally keep quiet until they are sure that their own personal experiences They answer the question and important enough to share. For this reason, the above questions are deliberately somewhat repetitive with each other: asking similar questions in slightly different ways pushes jurors to answer. For example, if no one says a peep after you ask, “Do you think it is too difficult to fire someone?” someone is sure to break the ice when you follow up with, “Have you ever worked with someone who should have been fired but wasn’t?”

The questions above also give jurors permission to articulate a bias that is detrimental to the litigant who is raising the question. In other words, these questions are the opposite of indoctrination. Indoctrination simply inhibits jurors from being honest. If the first thing a lawyer does is lecture or indoctrinate, the lawyer signals to jurors that he is more interested in telling them what to think than in learning what the jury already believes. Once the plaintiff’s attorney or defense attorney is just looking for a settlement, it instantly becomes more difficult for jurors to open up. Remember, lawyers and judges are on their own turf. Jurors are like guests in a church of a religion they don’t belong to: they don’t want to say or do something wrong. That is why you want to make it easier for you to open up by pointing out that now is the time and place to air your beliefs.

Finally, the questions do not refer to specific employment issues, such as discrimination or accommodations, or sexual harassment, but rather to general issues that influence the likelihood that a juror will begin to see your case with a plaintiff or a defense in favor. . bent. In other words, you will see if a jury’s personal experiences and / or worldview will make your case more of an uphill battle. This is why it is so important that you ask some of the same key questions to as many jurors as possible. When you do, you will be able to draw critical distinctions between the best and the worst jurors. To make those distinctions, all you need are good listening skills and a few simple follow-up questions.

This is not to say that specific questions should be avoided, at all. You definitely want to add specific questions too. For example, in a sexual harassment case, the plaintiff should ask: “What do you think a woman can do, if anything, to avoid being sexually harassed?” A defendant can learn a lot by asking, “What, if anything, can an employer do to prevent employees from sexually harassing other employees?” These examples are specific to the topic at hand, but not too specific to the case. That is what makes them so easy to answer. Jurors do not feel that they are being asked to pre-judge a case. Instead, they are asked about topics on which they are sure to have an opinion.

If you give jurors a chance to use their own words, you will be amazed at how easily they will betray their own biases with colorful, value-laden language. You will hear the jurors say things like:

“You hear people cry for discrimination …”

“I’m just not the type to fight lawsuits.”

“Employers try to act like they care, but all they care about is the bottom line.”

When jurors use colorful, value-laden language, resist the urge to correct them, argue with them, or try to get them to admit that they are hopelessly biased. Instead, side with them; listen to them; act like you understand where they come from and have heard it before. Let them know that they are not alone in their beliefs. This will help you open the vein even more. For example, you can say “say more what you mean when you say“ crying discrimination. ”Or, if you fear that the jury might back down from the sound of their own biases, you can rephrase and expand the jury’s comment by saying something like “When you say ‘people these days cry discrimination’, it sounds like you are saying that nowadays people allege discrimination as an excuse.” If this reflects the true beliefs of a juror, their articulation of that belief will do make it easier for the juror to fully share the depth of his or her feelings.

In sum:

Traditionally, attorneys have viewed jury selection as an opportunity to connect with jurors and sell your case to them. To that I say, sell your case during the trial, after the jury has been selected. This is your only chance to learn who the jurors are and what they believe in. If you use that precious time to sell your case, you will not be able to eliminate harmful biases. As for bonding, if you really want to bond with jurors, the best way to do that is to ask questions that jurors can answer, on topics that are important to them, and really listen to their responses, helping them dig deeper. your true feelings. That is the only way you can protect your client’s interests during this most critical stage of the trial.