Trial Magazine

Challenging a potential juror for cause requires skill and courage, as well as patience and gentleness. Always be polite, but never back down.

Lay the groundwork. Start before trial by educating the court in your brief or an early written submission about the critical importance of challenges for cause.¹ Any potential juror who expresses concern about an ability to be fair should be excused immediately. Attempts to “rehabilitate” jurors should be absolutely forbidden. If the court refuses to strike an unqualified juror for cause, it deprives the plaintiff of equal protection of the law. To ensure the trial is just, use a peremptory strike on the potential juror.

In Iowa where I practice, removing a potential juror for cause requires that the juror “shows a state of mind which will prevent the juror from rendering a just verdict” or has “formed or expressed an unqualified opinion on the merits of the controversy.”²

Explain bias in plain terms. When you begin voir dire, explain the legal meaning of bias to potential jurors using something neutral and easy to understand, such as bias for apple pie versus cherry pie or preferences for one TV show over another. You also can use examples from your own experiences and how they have shaped your views and would make you unqualified to sit in certain kinds of cases.

Identify the bias. Each case has potential areas for bias, such as immigration status, race, and sexual orientation. Other topics to explore with potential jurors include their understanding of the burden of proof and how they view noneconomic damages. During voir dire, I use five by seven index cards, on which I write a word or two to remind myself of the areas I wish to cover, such as “B of P” and “damages.”

Confirm the bias. Before you get in the courtroom, study your state’s standard for removing a juror, and have it at your fingertips. I write the exact words of the standard on a pink card, so it’s easy to find and easy for the jurors to see. I use it to pin down a juror who has expressed a bias.

This is a delicate process. If a juror appears uncomfortable with noneconomic damages, I might say, “You look like this troubles you. Tell me about that.” Listen carefully. If the juror is troubled because she doesn’t know how to quantify those damages, assure her that you will explain it in closing. But if the juror is troubled because she doesn’t think noneconomic damages are real, ask her, “Do you think that because this case will require you to consider noneconomic damages, this is just not a case you can be involved in?”

I then will say, “Have we agreed you are not the right person to judge this case? Then we have to follow the rules in Iowa for you to be excused.” I read the words on the pink card to the potential juror and ask for agreement. I warn the juror that defense counsel will try to rehabilitate and suggest that even the judge may weigh in. But then I confirm, “This is not a new opinion for you, is it?” I follow that with: “Certainly you would do your best to be fair, but you have clearly told me you can’t be, right?”; “Listen to what questions you are asked, and remember what we discussed.” If there is an attempt to rehabilitate, go back to the juror and say, “You told me something different from what you just told the judge. I understand it is hard to stick to your guns when someone is trying to make you say something you really don’t believe, so let me ask you again: Is it correct you don’t feel that you can be fair?”

Remember that you are not attacking the juror; you are explaining why you need to know the answers to the questions you are asking and how important it is that both sides start out absolutely even.

If you find a potential juror who shows a clear bias in favor of one side, keep returning until you succeed in excusing that person for cause. It is essential that every juror who serves on your case is fair and unbiased.

Roxanne Barton Conlin is the founder of Roxanne Conlin & Associates in Des Moines, Iowa, and can be reached at roxanne@roxanneconlinlaw.com. 

Notes

1. My standard brief is available at https://tinyurl.com/tlcy3ee. 
2. Iowa R. Civ. P. 1.915(j).