In Part 1 of this topic, we covered the personality traits of a plaintiff juror and, specifically, a description of an arousable juror and the impact of this arousability on information processing. In Part 2, we share insights on how to spot a plaintiff juror, the types of questions to probe on, and the effective use of voir dire.

How to Spot the Plaintiff Juror 

Given that the previously-described personality traits should raise a red flag in jury selection for defense litigators, how can this information be utilized? Obviously, one cannot generally administer clinical personality assessment instruments during voir dire. How does one move from theory into practice, and put this information to use, such that a tactical advantage can be realized in the courtroom?

The traits common to plaintiff jurors tend to surface in many situations during voir dire and selection, particularly when a supplemental juror questionnaire is utilized. Certainly, it makes intuitive sense that these characteristics would manifest in observable conduct. Formal academic research, mock trial research, and trial experience point to overt markers that can be used to identify a risky juror for the defense.

There is abundant research indicating a clear association between high levels of arousability and various stress-related illnesses, including cardiovascular disease and myocardial infarction. Arousability is also associated with a variety of physical, psychosomatic, and psychological illnesses and symptoms, as well as an increased prevalence of accidents. Illnesses and accidents are certainly events that are detectable during voir dire. Moreover, research with mock jurors has demonstrated clearly that reports of poor health and/or frequent accidents are generally predictive of a plaintiff orientation. 

The connection between a tendency toward illness/accidents and plaintiff orientation is not restricted to lawsuits involving illness or accidents, i.e., poor health as a marker for a plaintiff juror does not apply only to medical malpractice, pharmaceutical product liability, or toxic torts. Similarly, an accident-prone history does not simply mean that the individual will only vote against automotive and other similar defendants in personal injury cases involving accidents. These life events stem from enduring, generalized personality traits that point to deeper psychological problems that will apply to any type of litigation. Hence, poor health and frequent accidents can indicate the presence of the "archetypal" plaintiff juror - that is, a juror who votes for the plaintiff in virtually any type of case - because they tend to signify the existence of latent, unobservable traits such as arousability and its correlates (impulsivity, sensitivity, and anxiety). 

During voir dire, the defense lawyer should elicit the following types of information: recent or frequent hospitalizations; whether one is currently under the care of a physician; and the continuous taking of prescription medications. Often, such questions can be justified to the court by arguing that they are needed to ensure that the juror can comfortably sit, concentrate, and assimilate complex evidence over an extended period of time. Alternatively, the most unobtrusive means of collecting such information is a well-designed juror questionnaire. 

Other observable life events to detect during voir dire are connected with arousability, cynicism, impulsivity, and anxiety. Find out about: arrests or incarcerations; financial problems, including bankruptcy and foreclosures; and job and marital instability. Probing many of these areas during voir dire - or even within a juror questionnaire - can be a delicate matter. However, one can formulate innocuous questions that tend to elicit this type of information spontaneously from many jurors. For example, the query "Does anyone here have any kind of experience or dealings with the legal system?" often brings forth reports of bankruptcies, arrests and similar events. Of course, asking more specific questions outright can be justified when the case fact scenario provides a reasonable basis.

One of the most fertile areas of probing for problematic life events during voir dire is the employment experience. Research reveals a reliable connection between arousability and lowered performance in the workplace. The track record supporting the value of employment-related questions in mock trials and real trials is overwhelming. Studying mock jurors and real jurors through trial to verdict reveals that the following types of questions sharply discriminate plaintiff versus defendant jurors: 

·         Have you ever been harassed, discriminated against, or otherwise treated unfairly by a supervisor or manager?

·         Have you ever witnessed a cover-up of unethical conduct by a senior employee?

·         Have you ever been defrauded or lied to by an employer?

·         Have you ever filed a grievance related to working conditions?

·         Have you ever been unfairly passed over for a promotion or bonus?

It makes intuitive sense as well that individuals who are anxious, arousable, cynical, or who have mood disturbances would show instability and problems in the workplace. Many employment-related questions can comfortably be asked in voir dire settings, particularly if the juror is saved from potential embarrassment by being provided with the opportunity to blame the employer or uncontrollable (e.g., economic) events for the problem.

Effective Use of Voir Dire

How deeply can one 'dig’ in voir dire is always a sensitive issue, and depends on many factors, including the judge; whether one is in state versus federal court; and one's own comfort level and skill in phrasing questions and producing a non-threatening, unobtrusive context. The use of a supplemental juror questionnaire to reveal subtleties in jurors' personalities yields substantial tactical advantages, particularly when one side takes the initiative and poses tactful but revealing questions with response options that are designed to expose only the riskiest jurors.

Formulation of effective voir dire interrogatories requires deep and painstaking consideration of the mind of the plaintiff juror. Asking jurors to promise that they will "wait and hear our side of the case" is not enough. It is vital that the juror who does not have the temperament to perform this task be revealed using psychological insight and removed from the panel before opening statements are delivered.