The Peculiar Right – Jury Trials in Civil Matters
The United States is truly unusual in guaranteeing a right to a jury trial in most civil matters. In every other country that allows for jury trials in some cases (including in other highly advanced nations), civil matters are decided by judges, not lay juries. The right to a jury trial in civil matters is protected by the Seventh Amendment to the U.S. Constitution for federal cases and by the overwhelming majority of states in their constitutions for state court cases.
Even here in the United States, the number of cases that actually go to a jury verdict is remarkably small. Not only do most cases settle before trial, but many cases are now resolved through alternative dispute resolution. The form of ADR that most resembles a regular trial is arbitration, where an arbitrator or panel of arbitrators (who are typically retired judges or lawyers) decide the outcome, not jurors. As a result of the high rates of settlement and the rise in ADR, very few litigators have developed the skills required in voir dire or jury selection. There just aren’t enough jury trials for them to develop their skills.
Why Is Jury Selection so Important?
Jury trials are often lost in voir dire. If your lawyer does not do their job right picking the jury, you are unlikely to win no matter how good your attorney’s other trial advocacy skills are. Why is that? Because in most instances, you need a unanimous verdict to win (some states, including California, require a lower threshold in civil matters, such as 75%, but that’s still far above a simple majority). Putting just one or two people on the jury who are not open to your case can spell disaster. This is especially true if you have a juror who seems hostile to your case and shows leadership. You already have to contend with opposing counsel, you don’t need jurors in the box who will actively advocate against you.
What Should Your Lawyer Be Looking for in Voir Dire?
Your attorney cannot win over the entire jury pool to your case in voir dire, no matter how likeable or charming they are.
Instead, your lawyer should be getting to know the jurors to determine who is a leader and who is a follower. Who is likely to have strong opinions about your case and are those opinions positive or negative. Your lawyer’s goal is to find and excuse the panelists most biased against you. Jurors’ fundamental attitudes will not change, so you need to excuse the biased jurors, not try to change their minds.
A great lawyer will ask open-ended questions, get to know the potential jurors, and seek to put them at ease. An excellent voir dire will look and feel like a regular conversation, free from jargon and legalese. But with astute questioning, it can still give you important insights about how the potential jurors feel about the justice system, the subject matter of the case, jury duty, and whether they have had any personal experience with either. Most importantly, an outstanding trial lawyer will listen to the answers and seek to really understand and empathize with the jurors.
Your Jury Selection Team
A great trial lawyer is the first to recognize that jury selection is both an art and a science, requiring significant expertise. In most cases, that means you should consider hiring a jury consultant to work with your trial team. Jury consultants will work with your attorneys to prepare written questionnaires the judge can pass out to the jurors before voir dire, as well as perform research on the potential jury pool to help identify the jurors who are most likely to be good jurors in your case as well as determining which jurors you should seek to have excluded either for cause or on a peremptory basis.
Expert questioning by your attorney and the research and analysis done by your jury consultant combined can help you ensure your jury is open minded and will hear your case fairly. But without a fair jury, all the great trial advocacy skills in the world are likely to be wasted trying to convince hostile jurors to put aside their preconceived notions or dislike of your case.
Our trial attorneys have tried hundreds of cases to jury verdict, meaning we have truly unusual depth and experience in jury selection – a skill vanishingly few litigators can claim. Our greatest wins for our clients began with our excellent trial preparation. But they were secured by our skill not just in connecting with the jury, but in knowing how to seat one.