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Jury Selection Part 4: Ask the Difficult Questions

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Habas_TinaA version of this article was originally written by NITA faculty member Christina Habas for Law Week Colorado and is reposted here with their permission.

 We all know that there are potential jurors on any venire whose past experience or biases may prevent them from accepting our client’s claims. Many lawyers are reluctant to explore those sorts of issues, because they believe discussion of information that is not helpful to their case might position the remaining jurors. The difficulty with this view is that it potentially leaves people on a jury panel who are not open to hearing out arguments. There is much danger there.

I suggest that neither jury selection, nor the trial itself, ever changes a juror’s mind, nor does jury selection create issues where issues do not previously exist. Instead, the function of jury selection is actually to “de-select” jurors who hold views that are destructive to our client’s version of events and, if possible, to remove those jurors from the panel who hears the case.

By way of example, in a recent case tried by our firm, our client’s decedent was operating his automobile at night on Highway E-470, returning home from Denver International Airport, when he rear-ended a street sweeper that had been traveling in the left lane of E-470 over the bridge at Parker at a speed of approximately three to five miles per hour. There was also evidence the decedent was using his cell phone at or near the time of the collision and a suggestion that he was doing more than simply making a telephone call at the time. Thus, jurors who held the opinion that all drivers who rear-end another vehicle are 100 percent liable for the collision, as well as jurors who believe that all drivers who are involved in an accident when using a cell phone are liable, had to be identified, and if possible, removed from the jury panel.

The questioning of the venire to obtain these attitudes is counterintuitive. You must ask the question in its purest form to see which jurors hold the most obviously destructive opinions. When we are in “trial mode,” we maybe reluctant to raise potentially destructive issues to our case. However, in voir dire, we must ask those questions in order to properly identify those with attitudes that will make a juror reluctant to find in our favor. Do not dance around you main issues: embrace them.

After we assured jurors that we wanted them to tell us things even if they believed we did not want to hear them and that we were not trying to change their minds, we then asked:

  • Are there any jurors who believe that if a driver of a vehicle rear-ends another vehicle, no matter what the circumstances, the rear-ending driver is always 100 percent responsible for any accident?
  • Are there any jurors who believe that if a driver of a vehicle is using a cell phone in any manner and a collision occurs, the driver using the cell phone is always 100 percent responsible for any accident?

Not surprisingly, we got a fair number of jurors who agreed with one or both of those questions. Asking the question in a very dimple, direct, and absolute way provides you with a better chance of establishing grounds for a challenge for cause under Colorado Rules of Civil Procedure 47.

Even more, however, it allows you to ask jurors whether there are limits on their beliefs or attitudes—whether there are circumstances where they might not believe that driver to be 100 percent responsible, thus giving you an opportunity to de-select in a more meaningful way. At the same time, because we did not argue the point with any juror who raised their hand, the jurors accepted our promise to them that we were not trying to change their minds but instead actually wanted to hear what they thought—something that many jurors do not believe lawyers are interested in doing.

Do not worry about poisoning a jury panel. Instead, look for opportunities to discover your enemies, and to de-select them.

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