Michael A. Ferrara, Jr.
601 Longwood Avenue
Cherry Hill, NJ 08053
856.779.9500
Juror bias and prejudice is becoming more prevalent with each passing
day. People have become disenchanted with our legal system and are often
of the opinion that most, if not all, lawsuits are frivolous. A recent
poll conducted by the National Law Journal and DecisionQuest found that
more than 75 percent of the 1,012 people questioned said that as jurors,
they would do what they believed was right regardless of what a judge says
the law requires. The National Law Journal, November 2, 1998. In this age
of "Tort Reform," it is increasingly important to recognize and fight
these prejudices so that your client can receive a fair trial. One way to
elicit the biases and prejudices of jurors is by asking specific questions
of the jury and using jury questionnaires.
In her article entitled "Screening Jurors In The Age Of Tort 'Reform'",
TRIAL, April 1998, Lisa Blue suggests various questions designed to elicit
feelings about tort "reform" issues:
- How many of you feel that lawsuits generally have a negative impact
on you, your company, or someone close to you?
- If it were up to you, how many of you would change our civil justice
system to limit or cap the amount of money an individual could be awarded?
- How many people feel jury awards in the past have ben too high? Would
that cause you to hold down the award in this case?
- When I mentioned awarding substantial amounts for pain and suffering,
did anyone on the panel have a gut feeling that awarding substantial
amounts is "ridiculous" or "outrageous"?
- Does anyone feel large corporations are treated unfairly by our
justice system?
- If it were up to you, would you want stricter laws for companies to
make sure their products are safe? Or would you want fewer restrictions on
companies concerning product safety?
- Do you believe that lawsuits make companies act more responsibly?
- Does anyone feel that lawsuits in general do more harm than good for
society?
- If you were injured by someone else's negligence, would you file a
lawsuit?
- If you were injured by a dangerous product and you thought the
company was at fault, would you file a lawsuit?
- Have you or anyone you know had to deal with a frivolous lawsuit?
Might that experience affect your judgment in this case?
- Are you familiar with Citizens for Lawsuit Abuse Reform or similar
tort "reform" groups? Do you sympathize with their beliefs?
These questions can help identify people who have been influenced by
tort "reformers." The good news about all the publicity given to tort
"reform" is that more people seem to feel it is acceptable to admit to
this form of bias during voir dire.
Jury questionnaires are also useful in uncovering bias and prejudice. A
sample questionnaire published with Lisa Blue's TRIAL magazine article,
which has been slightly modified, is attached for your convenience.
Generally, both plaintiff and defense counsel like this form because it
seeks only background information and does not give any side an unfair
advantage. The form can be easily completed in approximately ten minutes
and can be quickly reproduced since it is one sided.
In jurisdictions that do not utilize a standard jury form, judges will
often allow this questionnaire if the lawyer presents it as a time-saving
device and has the cooperation of opposing counsel. Background information
can tell the attorney about the juror's intellectual level, cultural
tastes, and altruistic activities. Occupational information may provide
information on leadership skills or identify blue or white collar
ideologies. In any event, the questionnaire is intended to identify to the
attorney areas that need to be pursued through follow-up questions so that
you can ensure the selection of a good jury panel.
A great deal has been written on the issue of jury selection. While the
main focus is often on voir dire, the use of jury questionnaires has not
been overlooked. The following is a brief sampling of some of the research
and literature pertaining to jury questionnaires.
"Jury Trial Issues", 583 PLI/Lit 377.
Given that time for voir dire is almost always short, the judge's
questions often not very probing, and the jurors usually uninterested in
making oral disclosures, a Juror Questionnaire can be invaluable.
"[M]ore than 20 years of research has demonstrated that
self-administered questionnaire are more likely to elicit sensitive or
embarrassing information from respondents." (citation omitted)
Self-administered questionnaires offer the juror a chance to provide
sensitive information without drawing attention to themselves in open
court.
Supplemental Juror Questionnaires may be more time-efficient for the
court than oral voir dire, since all of the panel members can fill out the
questionnaires simultaneously. However, the lawyers require adequate time
to review to survey and analyze.
The answers to the Juror Questionnaires may be analyzed by counsel or
jury consultants out of court to screen for characteristics and answers
indicating "good" or "bad" jurors.
Juror Questionnaires are especially useful in drawing out the effects
of a famous party or pretrial publicity on jurors.
"Final Report Of The Blue Ribbon Commission On Jury System
Improvement", 47 Hastings L.J. 1433.
Finally, the Commission has been impressed with the one-page
questionnaires that are in use at several courts around the state
(citation omitted) These questionnaires include basic information about
the juror, such as place of employment, marital status, and prior
involvement in litigation. This is information that usually is developed
orally during voir dire. The questionnaire permits jurors to submit this
information in a less stressful environment and is a more efficient
mechanism for making the information available to counsel. The
questionnaire used in Sacramento County is filled out in triplicate using
pressure sensitive forms, with one copy being given to each counsel and
one copy given to the court. The Commission recommends that a statewide
questionnaire be developed which jury commissioners may adopt to gather
basic juror information for use by counsel and the court in conducting
voir dire.
As noted in Chapter III, juror privacy has become a concern in some
courts. The questionnaire developed for voir dire purposes should protect
that privacy interest. The questionnaire used in Sacramento permits jurors
to write a "P" in any space where the juror wants the information to
remain private. However, this option may not sufficiently protect the
privacy interests of jurors. At a minimum, the Commission recommends that
the questionnaire omit jury identification information, including the
juror's name, home address, employer address, and the identification of a
child's school.
Recommendation 4.4: The Judicial Council should adopt a Standard of
Judicial Administration encouraging the use of a statewide juror
questionnaire to be developed by the Implementation Task Force to gather
basic juror information, other tan juror identification information, for
use by the court and counsel in voir dire.
In complex and high-profile cases, a much longer questionnaire prepared
by counsel may be necessary to conduct a thorough voir dire. Courts around
the state are already using such questionnaires, and their use should be
encouraged where appropriate. However, the Commission believes that the
content of voir dire questionnaires must be carefully reviewed by the
trial court to protect jurors' legitimate interest in privacy and to
insure that questionnaires in criminal cases are seeking only information
related to challenges for cause and, in civil cases, information related
to challenges for cause and peremptory challenges.
"Judge Conducted Voir Dire", 274 PLI/Lit 541.
Counsel should move that the court submit a detailed questionnaire to
the panel. A questionnaire allows the gathering of extensive pertinent
information in confidence, without consuming the court's time.
"The Future Of The Post-Baston Peremptory Challenge: Voir Dire by
Questionnaire And The "Blind" Peremptory", 29 U. Mich. J.L. Ref. 981.
Although none of the surveyed trial lawyers had experience with voir
dire by questionnaire only, questionnaires are becoming more common tools
in jury selection, and at least 11% of the surveyed trial attorneys had
some experience with voir dire by questionnaire. Voir dire by
questionnaire would allow fuller, more meaningful, attorney-conducted voir
dire (attorney-conducted because the parties and not he court would draft
the questionnaires). Questionnaires also have the advantage of allowing
for individualized questioning outside the presence of other jurors
(individualized because each jury panelist completes a separate
questionnaire), reducing the embarrassment of speaking publicly, reducing
the embarrassment of admitting bias, eliminating the pressure to conform
one answers to the answers of other panelists, and eliminating the risk
that one jury panelist's prejudicial remarks will influence the balance of
the panel.
"Tips for Voir Dire And Jury Selection", 7 OCT NBA Nat'l B.A. Mag. 12.
The use of the juror questionnaire has increased dramatically in recent
years. Its advantages are many. It speeds up the voir dire process by
allowing the simultaneous evaluation of all potential jurors on standard
and background type questions; it increases the quality of information
available since jurors are more likely to give detained answers to
personal questions and do not have the opportunity to alter their answers
based on what they hear other jurors say; it allows the attorney to be
more focused in his questioning; and it allows questions to be asked
without identifying which party wants the information nd prevents on
juror's negative experiences from influencing others. Jurors, like most
people, tend to remember, recall and talk about negative experiences far
more often than positive ones.
"Chief Judge Judith S. Kaye's Program Of Jury Selection Reform In New
York", 10 St. John's J. Legal Comment. 263.
Due to this success in the criminal area, the Jury Project recommended
that such questionnaires be extended to civil voir dire as well. In early
1994, a number of judges and lawyers used the questionnaire on an
experimental basis, with a great increase in voir dire efficiency. As a
result, use of questionnaires in civil jury selection is now being
implemented on a statewide basis. The new system offers a number of
advantages that will make the jury selection process more efficient for
the courts, and more painless for the potential jurors.
The lessons to be learned are many. But perhaps the most important is
that jury questionnaires can only serve their purpose and become a useful
tool at trial if they are utilized in conjunction with a proper voir dire.
In New Jersey, trial attorneys experience the frustration of not being
able to properly voir dire juries on a daily basis. We must continue to
fight for the right to voir dire jurors. Only when we have won this battle
can we be sure that our client's are capable of obtaining a fair and
unbiased juror panel.
I have enclosed an number of jury questionnaires used throughout the
United States for your convenience. Use these to formulate your own
questionnaire and help us continue the fight.