Most litigators know that juror questionnaires can reveal biases that potential jurors would never reveal openly. But few realize that winning the battle over the juror questionnaire provides a vital strategic edge.

•  First and foremost, seek out the assistance of a qualified litigation consultant to help you to develop the questionnaire. The kinds of questions that will ferret out potential biases are far from obvious. Experienced consultants have a large bank of empirically tested evidence to help you determine not just which questions to ask but how to ask them.

•  Aside from enhancing the likelihood of candor in potential jurors, why should you use a questionnaire?

• • To get an "early look" the potential jurors. You will find out more about the jurors, and find it out earlier, by using a questionnaire;

  • You will be able to identify the riskiest jurors early and request a "shuffle" (random rearrangement of the order of the jurors);

  • You will have prepared strategic follow-up questions for use during oral voir dire;

  • You can test not just what potential jurors believe, but how they process and use information. For example, a question that asks for a description of work history may seem innocuous, but how thoroughly, carefully, and precisely the potential juror answers the question will tell you about that potential juror's intelligence and literacy; and 

  • You can weed out the cynical jurors and the "know-it-alls." Questions that ask potential jurors to rate their own knowledge or familiarity are important. Potential jurors' beliefs about their own knowledge are reliable predictors of bias.

•  Be prepared to defend your questionnaire. Some judges regard them as intrusive or an unnecessary complication, but the opposite is true. Anticipate the need to argue how using one will streamline the process (fewer questions to ask on voir dire) and protect juror privacy (no in-court answers in front of other potential jurors).

OUR ANALYSIS 

After reviewing our experiences in hundreds of cases, we have formed the opinion that the juror questionnaire is the most commonly neglected weapon in trial strategy. The full capabilities of the juror questionnaire in exposing risky jurors during selection seem to be rarely used, even in very important cases. Moreover, there appears to be a strong correlation between losing the battle over a juror questionnaire to opposing counsel and losing the verdict itself. Although obviously many factors may influence a final verdict, our experience in a number of landmark trials has been the distinctive impression that the trial was won - or lost ­ before opening statements began, that is, during voir dire and jury selection.

In some respects, the bigger the case, and the more witnesses and evidence which must be prepared, the easier it is to overlook the juror questionnaire, and the motions to the court which are necessary to get it approved. On the eve of trial in one of the largest damages cases in history, lead defense trial counsel was asked why plaintiff's juror questionnaire got the nod from the court. He replied sheepishly, "We just dropped the ball."

Ironically, with increasing pressures in larger cases, proper attention to the juror questionnaire often becomes even more likely to be overlooked. Although many litigators do not need to be convinced with regard to the desirability of a juror questionnaire, there are many who see it as a relatively low­ priority item. We repeatedly see counsel on the eve of trial with no plans for a juror questionnaire, even though they heartily agree that they should be using one. As we discuss in this article, adequate preparation entails not only the painstaking design of the questionnaire but beating opposing counsel to the punch in getting the questionnaire submitted and justified before the court.

WHY USE A JUROR QUESTIONNAIRE?

Typically, when heading for trial, we want  to see the actual venire from which our jury will be drawn as early as possible, so that we can know with whom we will be dealing during selection, and indeed, throughout trial. Impressions and preliminary ratings from a well-designed juror questionnaire generally comport very closely to the characteristics that are later observed in court after the panel walks in. As a result, the first benefit from the questionnaire is an "early look"; that is, we know the characteristics of prospective jurors earlier than what would otherwise normally be the case. 

Possible "Shuffle"

Since the first preliminary juror ratings based        on the questionnaire alone are frequently quite accurate, in some courts a request can be made to "shuffle" the panel before voir dire (i.e. rearrange the ordering of jurors) when the riskiest jurors appear early in the sequencing. Furthermore, subsequent oral voir dire can be tailored in advance for optimum strategy without having to improvise on the courtroom floor. Specific follow-up questions formulated in advance can be much more beneficial for tactical purposes than those generated on the spur of the moment. These refinements cannot be made without a questionnaire.

Likelihood of Candor Enhanced

As we have stated, a well-designed juror questionnaire typically generates impressions of jurors that are very similar to the final impressions received by the end of voir dire. The close correspondence between questionnaire-based impressions and in-court impressions tends to break down, however, in the case of more sensitive voir dire issues. For example, in sexual harassment cases, probate cases, and others, it may be quite difficult to obtain candid accounts of one's personal relationships in open court. Similarly, we have seen jurors refuse to admit environmental leanings in the presence of large oil company defendant counsel during voir dire. However, the reason we are in a position to know in the first place that information is concealed in open court is because information concealed during oral voir dire is often present in the juror questionnaire. Thus, for example, in an anti-trust case against a large oil company defendant, a juror indicated in her questionnaire that  she was a member of the Sierra Club because of her concern for the environment. When asked by defense counsel her reasons for joining the Sierra Club in open court, her response instead was, "I like the hikes."

The "Deindividuation" Effect

Social psychologists use the term "deindividuation" to refer to circumstances in which a person becomes less inhibited or restrained as result of detachment from the personal consequences of an act. In the comparison be­tween responses to juror questionnaire items versus oral voir dire questions, jurors feel much greater and much more immediate personal consequences in connection with their responses to  oral voir dire, where in-court social pressures can be overwhelming. In contrast, there is little social pressure connected to the written  questionnaire response. One frequently observed example of this phenomenon is found in the extemporaneous comments written by jurors in various places within completed juror questionnaires. Some of these comments can be  quite extreme, unusual, and in some cases even bizarre. However, oral voir dire seldom elicits the intensity or extremity exhibited in such comments when the prospective juror is questioned in court. Obviously, then, the questionnaire affords a clearer view of what is really going on in the juror's mind.

Concludes in Part 2 next week.