Trial Magazine

Bias is inherent in us all, so as trial lawyers, we must dig as deeply as we can to ensure the empaneled jury will give a fair shot to both sides and render a just verdict that comports with the facts presented and the law.

I had the great fortune to conduct voir dire in the talc ovarian cancer trials in St. Louis. I am by no means a jury expert, but these simple and practical tips helped to seat jurors who took their jobs seriously and treated the process with careful deliberation.

Know the venue. If you are not trying the case in your own backyard, you need to understand where you are and who you are dealing with. Is the venue progressive or conservative? What is the judge’s track record? What is the expected racial makeup of the venire? Local counsel or professional jury consultants can help you understand the lay of the land.

Learn the jury selection process beforehand. Will the judge conduct most of it or give you wide latitude to question jurors, both collectively and individually? If you are given wide latitude, do not rush through it. Use every minute to get to know the potential jurors and realize that they are getting to know (and maybe even trust) you too.

Lay out the case. Voir dire is not an opening statement, but if crafted correctly, you can preview certain issues, which may reveal jurors’ potential biases. In the talc cases, for example, the plaintiffs dusted their genital area with baby powder for hygienic purposes for decades. One of the first questions I ask is, “By a show of hands, is there anyone here who just doesn’t understand why a woman would do that and holds it against her?” If a potential juror believes that using talc in that manner is a misuse of the product or cannot empathize with the ­plaintiff for her choices, then that is a bias you need to uncover upfront.

Empower jurors early. Voir dire means to speak the truth. You want jurors to feel comfortable doing so in front of strangers. Empowering them helps this process along. Jurors typically see jury duty as a chore that keeps them away from their jobs and family obligations. But if you impress on them the importance of the case and their role in it as the arbiters of justice, many times the apprehension melts away, and they settle into the job at hand. An empowered jury is an interested jury, and that can make all the difference.

Get them talking. This is the only time you are free to talk to jurors. Make it count! The more they talk, the more information you can follow up on. The more you can follow up on, the more you may learn about potential biases. One approach is to ask the group who agrees or disagrees with a particular statement.

Also, pay attention to anyone who may not be commenting, and ask that person a pointed question. Obviously, if anyone makes comments or has knowledge beyond a layperson, you’ll want to explore that more. But generally speaking, the more you know, the better decisions you can make when it’s time to strike jurors.

Protect helpful jurors, and commit biased ones. Qualified jurors are not supposed to suspend their beliefs. Instead, they must be able to listen to the evidence, follow the judge’s instructions, and not go into the process already favoring one party over the other. Use the standard language when questioning jurors so it’s clear on the record and easier to argue at the time the judge is considering strikes for cause.

For example, in St. Louis, a qualifying juror is one who has not put one party ahead of the other at the outset due to a preconceived belief or notion about the case or the parties involved. Fairness, impartiality, and the ability to follow the judge’s legal instructions are standard concepts that help protect good jurors and remove biased ones for cause.

Danielle Ward Mason is a partner at Sanders Phillips Grossman in Garden City, N.Y., and can be reached at dmason@thesandersfirm.com.