Some Tips on Rules, Time Constraints, Questioning Techniques
New York Law Journal
May 23, 2000, Tuesday
SECTION: TRIAL ADVOCACY; Pg. 3
HEADLINE: Some Tips on Rules, Time Constraints, Questioning Techniques
BYLINE: By Ben Rubinowitz and Evan Torgan; Ben Rubinowitz is a partner at Gair, Gair, Conason, Steigman & Mackauf. He also is an Adjunct Professor of Law, teaching trial practice at Hofstra University School of Law, and is a Team Leader at the National Institute for Trial Advocacy. Evan Torgan is a member of Evan Torgan P.C. He is an Adjunct Professor of Law, teaching trial practice at Benjamin N. Cardozo School of Law, and is an instructor at the National Institute for Trial Advocacy.
Jury selection is undoubtedly a fateful phase of the trial. While experts may differ as to which stage is more important, their clients all agree on one thing: the verdict is the most important. Knowing that the jurors are the ones rendering the verdict makes jury selection that much more agonizing. Experienced trial lawyers may disagree on some of the methods and strategies of selection, but those who suggest that a lawyer might just as well “take the first six” are flat out wrong.
One need only consider the conflicting verdicts for both Rodney King and O.J. Simpson – two cases tried twice before different juries with completely different results – to realize the importance jurors make in an outcome. So, clearly, jury selection must be conducted with an eye toward securing the most favorable verdict possible.
Without question, jury selection is the first opportunity to establish your credibility and at the same time impress the jury with the integrity of your case. Even more important, however, is selecting a jury that will identify with your client and sympathize with your case. Conversely, jurors with an inherent bias against your case must be identified and removed. Because it is one thing to advise this, and another to put the plan into action, we will discuss how this all can be accomplished. But first, let us address the rules and time constraints which now apply to jury selection in civil cases.
Work Within the Rules
Admittedly, most of the rules governing jury selection make finding a favorably disposed jury a difficult task. But it can still be done, even with supervision by Judicial Hearing Officers (JHOs) who generally are delegated the responsibility of overseeing voir dire. The only real codifications of selection rules are found in the Court Rules 202.33 n1 and the CPLR @@ 4108-4110. n2 They do not say much, and what they do say is not particularly helpful.
n1 22 NYCRR 202.33.
n2 CPLR @@ 4108 (McKinney’s 1962), 4109 (McKinney’s 1972), 4110 (McKinney’s 1972).
The CPLR does give you three peremptory challenges and an unlimited number of challenges for cause (subject of course to the discretion of the JHO supervising voir dire). A peremptory challenge is one that allows an attorney to excuse a juror for any reason aside from race, religion or gender. n3 A challenge for cause, on the other hand, is based upon a presumption that the juror cannot be fair to one side or another (as well as upon certain statutorily explained relationships to parties or insurance carriers n4). As importantly, the CPLR allows the parties to stipulate or consent to excusing jurors. This can be used to the advantage of both sides in the jury room. But be careful: if the JHO thinks too many consent challenges are being used, he may put an end to the practice, insisting that he interview the juror in spite of the stipulation, possibly relegating the “consent challenge” invalid.
n3 See Batson v. Kentucky, 476 US 79 (1986) (prohibiting the prosecution’s use of peremptory challenges to systematically exclude people based on race or condition); J.E.B. v. Alabama, 511 US 127 (1994) (prohibiting prosecutors from systematically excluding people based on gender); Ancrum v. Eisenberg, 206 AD2d 324 (1st Dept. 1994) rehearing denied and leave to appeal granted, 207 AD2d 1045 (1st Dept. 1994), appeal dismissed, 85 NY2d 853 (1995) (applying Batson type challenges to civil cases).
n4 CPLR @ 4110 ( MCKINNEY ‘S 1962).
The Court Rules now give the trial court (and thus the JHO) power to impose discretionary time constraints. These constraints can be oppressive and make your task much more difficult. Thus, the focus on precise, probing and masterful questioning becomes all the more crucial.
You must talk with, listen to, and develop a rapport with the jury in spite of the restrictive time constraints. Use your trial skills and vary between open-ended and leading questions. Use nonleading questions – as if conducting a direct examination – to learn about the jurors, explore their opinions, or set them up for cause challenges. On the other hand, use leading questions – as if on cross-examination – to make a point, get across your theory of the case, or likewise set the jurors up for cause challenges. At all times, be respectful and use the proper tone of voice.
You can only learn about jurors if they do most of the talking. To accomplish this, stay away from leading questions. Otherwise, the voir dire will go like this:
Q: So, Ms. Owens, you live in Brooklyn ? A: Yes
Q: Have you lived there your whole life? A: Yes
A: I see you work for a printing company?A: Yes
Q: Can you be fair and impartial? A: Yes
Questions like these offer no assistance at all. You learn nothing about the prospective juror. You do not uncover her biases or interests; you do not discover whether she is favorable to your cause; and you do not find out enough about her background to tie it in with the presentation of evidence or your summation.
So, instead, you must question jurors as if they are witnesses. To elicit background information, always do so in nonleading form, as if you are conducting a direct examination. That way, you are asking questions that elicit a narrative response. If you ask questions that are leading in nature you will not accomplish your primary goal: selecting a jury that favors your case. Therefore, when eliciting background information, stay away from questions that begin with words such as “did,” “have,” “had,” “could,” “so” or “were.” These words will always call for a “yes” or “no” answer. Instead, interview like a journalist. Ask questions that begin with who, what, where, when, why or how. These types of questions will always elicit a narrative response.
To get the prospective juror talking, ask questions like these:
Q: Who lives with you at that address?
Q: What does your wife do for a living?
Q: Why did you choose that profession?
Also, do not be afraid to vary the form in seeking the narrative response:
Q: Tell us about your background?
Q: How do you feel about our civil justice system?
Q: What do you think about a person’s right to bring a lawsuit like this?
Q: How do you feel about a person’s right to defend a lawsuit like this?
At the same time, there will be instances during the voir dire process when you will want to ask leading questions to get the jury thinking your way, or determine whether they should sit at all. For example, in any civil case where your client is seeking redress, ask
Q: Do you agree with our system of civil justice, that stands for the proposition that if somebody is injured through the fault of another, that it is the entity that causes the injury who should pay for it?
In a case where witness credibility is at issue, ask:
Q: Do you think that just because a witness raises his right hand, puts his left hand on the Bible, and swears to tell the truth, that it automatically means that he will tell the truth?
In a medical malpractice action, where the care rendered by the defendant doctor, and the credibility of his supporting experts are at issue, inquire:
Q: Do you think that simply because somebody has a medical degree and we call them “Doctor,” that it automatically means they must have a reputation for truthfulness, or honesty, or integrity?
The answers to each of the foregoing questions do need to be explored. They should be followed up with questions like, “How do you feel about that?” or “Why do you feel that way?” Realize that it is the form of the question that allows you to achieve your desired goal: selecting a jury that will look upon you and your case favorably.
Always question the panel on the negative aspects of your case. Do not save them for the trial. For example, if your client has a prior criminal record which will be disclosed during the trial because your motion in limine has been denied, jury selection is the time to acknowledge the problem. Be up front. Use the “confessional” approach. At best, you might be able to excuse jurors for cause who admit they cannot be fair to your client; at worst, you will enhance your credibility and diffuse the issue by showing your candor and desensitizing the panel to the problem.
Here is what we mean:
Q: I’ll tell you right now my client committed a robbery eight years ago. He was convicted and served his time. It is our position that this robbery has nothing to do with the facts of this case, it has nothing to do with the negligence of the defendant, and it certainly has nothing to do with the injuries suffered by my client.
Now, finish the question in nonleading form to find out the juror’s true opinion:
Q: How do you feel about that?
Use the juror’s narrative responsive to determine whether you want to go after him for cause, or whether you want to keep him with an assurance that the conviction will not be held against your client.
Q: Do you think you will decide this case based upon the fact that my client has previously been convicted of a crime, or are you the type of person who would want to hear more about the facts of the case?
If you believe the juror can disregard the conviction, take it a step further by getting the juror’s commitment on the issue:
Q: Can I have your assurance that, if you are chosen as a juror in this case, you will not allow that fact to govern your decision?
On the other hand, you may choose to leave truly positive aspects of your case for opening statement. For example, a plaintiff’s attorney may ignore the fact that his target defendant in a motor vehicle case was convicted of driving while intoxicated for the subject accident, or that a physician was on tranquilizers at the time of the failed surgery. If the defense counsel chooses not to diffuse an incendiary issue during voir dire, the plaintiff’s lawyer should save that revelation for opening statement. However, if defense counsel mentions the weakness during the defense portion of the voir dire with the hope of diffusing the issue, you must discuss those facts before exercising challenges so as not to leave the jury with your opponent’s “spin” on these issues.
Artful questioning allows you to preserve peremptory challenges. The true art of jury selection is manifested by your ability to preserve peremptory challenges of unfavorable jurors through skillful use of challenges for cause and “on consent.” A lawyer is a true artisan when he can turn a clear peremptory challenge into one for cause.
When trying to get a juror to excuse himself for cause, take the questioning to its final conclusion. Do not stop with the juror’s admission that he would feel more comfortable sitting on another type of case.
To most judges and JHOs, that does not translate into a challenge for cause. Instead, you must get that juror to admit that he should not be sitting on your particular case because he would have difficulty being fair. For example, assume a prospective juror is actually a defendant in a different case. By spending sufficient time questioning that juror, you may indeed compel him to excuse himself. However, using the wrong form can lead to your downfall, while the right form can preserve a peremptory challenge.
Here is the wrong way to do it:
Q: Can you set aside the fact that you have been sued in another case and judge this case solely on its facts?
That is a question that the defense lawyer who wants to keep that juror should be asking.
Instead, reach your goal through the use of pointed, leading questions:
Q: You’ve now told us that you are named as a defendant in a pending lawsuit as a result of an accident at work?
Q: I take it that it has not been a very pleasant experience for you?
Q: In fact, having to go through the litigation process can be a real pain in the neck?
Q: You have to answer for your actions to superiors at work I take it?
Q: Then you have to talk to lawyers who represent you and your employer, right?
Q: Go to examinations before trial?
Q: Answer questions from the opposing lawyer as well?
Q: Take time from your family and work?
Q: It must be a real nuisance, right?
Q: And I certainly don’t blame you for it, but you must have some interesting opinions about lawsuits like this?
Q: And I take it some of those opinions are negative, right?
Q: However, you would agree, that anyone who comes into a court of law is entitled to a fair trial?
Q: And that people are entitled to a jury who can decide the case on the evidence, and not based upon personal opinions that have nothing to do with the specific case at hand?
Q: And I can tell by your honesty – just by talking to you – that if you even thought that there was a slight possibility that you may let your experience of being sued effect your decision-making, that you would let us know.
Q: Would you agree that there is certainly a possibility that having been a defendant in a pending lawsuit, that you may ever so slightly identify with the defendant in this case?
Q: And based on your sense of fairness, if that were the case, you would want to excuse yourself from service on this case?
Q: Knowing that you are presently a defendant, that you have considered these suits to be nuisances and have certain negative feelings about cases like this, would you agree that based on what you’ve told us, that strictly from a fairness perspective, that it would be appropriate for you not to sit on this case?
Although it would be far easier to conduct this type of questioning outside the presence of the jury, if done tastefully, and with the proper tone, it can be successfully accomplished in front of the entire panel. The advantage to the more public voir dire is that your adversary will be forced to concede the “cause” challenge, or run the risk of appearing to want to seat a clearly biased juror.
Jury selection is a critical stage of the trial. Understand your purpose. Use the process to find jurors who, at best, are favorably disposed toward your client, or at worst, can judge the case impartially.
Demonstrate your credibility and integrity. To accomplish these goals, utilize the proper combination of leading and nonleading questions to preserve peremptory challenges. And do so expeditiously.
The modern day time constraints are a serious impediment to conducting a thorough voir dire, but one that can be overcome with preparation, effective time management, and artful questioning.
But remember, even with masterful technique, you sometimes have to consider yourself privileged for ending up with jurors you can live with, rather than those you want.