Big Changes Coming for Jury Selection?

Regardless of what the U.S. Supreme Court said in Batson v. Kentucky, everyone involved in litigation knows race plays an outsized role in jury selection.  Studies have shown that during criminal trials, prosecutors strike black jurors at a higher rate than whites, and in civil trials defense attorneys often do the same.

When a Batson challenge occurs, attorneys have been able to rest comfortably knowing most judges will accept even the flimsiest race-neutral reasons. 

But that might change soon.  On November 2, the Supreme Court will hear arguments in a case that could upend the way peremptory challenges are used and how lawyers must justify whom they choose to dismiss. 

The case revolves around the 1987 murder trial of a black man in Georgia.  Consistent with studies, the prosecutors used their peremptory challenges to strike black jurors and defense attorneys used theirs on whites.  The result was an all-white jury that convicted the defendant and sentenced him to death.

In 2006, the convicted man’s appellate lawyers obtained prosecutors’ jury selection notes under Georgia’s Open Records Act, and these notes contained information indicating the role of race in their decision-making process.  Prosecutors wrote “B” next to all the black jurors’ names and made a list of the black jurors they could accept versus those they felt they had to strike. 

There’s no telling how the Court will decide this case, but there are still lessons to be learned here.  It’s entirely possible some judges may be emboldened by the fact the Court is hearing this case at all and start demanding more substantial race-neutral reasons for striking jurors.  Here are a few suggestions for how to strengthen your jury selection process, no matter how the Court decides: 

• Look beyond race.  Striking jurors based on race is often the lazy way out– whether it’s done by plaintiff attorneys or the defense.  We believe personal experiences and attitudes are the most important factors to consider when evaluating potential jurors.  Instead of race, focus on truly race-neutral factors, such as education, relevant life experiences and jurors’ opinions about personal responsibility.  Also, there are some cases where minority jurors might be more favorable to the defense – we can help you identify those cases.
• Beef up your reasons.  You shouldn’t feel comfortable offering a judge feeble excuses for striking a juror, such as, “I didn’t like the way he looked at me.”  As mentioned above, there are always better reasons to support your gut feeling than someone’s race, and it’s your job to find them.  If necessary, spend extra time questioning those jurors you think you’re likely to strike.
• Note the race of ALL jurors.  It’s unlikely you’ll ever be compelled to turn over your jury selection notes, but it’s possible you could misplace a page or inadvertently give opposing counsel some other way to catch a peek.  If you’re going to note the race of potential jurors, do it for all jurors, not just the minorities.  We typically use a spreadsheet with a column for race to make sure everyone is recorded.
• Keep control of your notes.  It probably goes without saying, but you should keep close control of all your notes.  Don’t leave them lying around during the lunch break, and don’t throw them away in the courtroom trashcan.  Treat them as the privileged documents they are.
• Appoint a Batson assistant.  If you have an associate or second chair helping you with the case, assign them to listen for and keep track of race-neutral reasons for excusing jurors.  You’ve got enough on your plate, and it’s always possible you’ll miss something important.
• Go on the offensive.  Although it’s less common, we have observed attorneys use Batson to challenge strikes used against white jurors when it appears an attorney is systematically trying to load the jury with minorities.  At the very least, this can show plaintiff attorneys the race issue is a two-way street. 

We’ve helped attorneys select juries for hundreds of cases, and we are particularly adept at preparing for and navigating Batson challenges.  If you’d like our help choosing your next jury, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

We’re excited to announce Jury Impact has moved offices.  If you would like to get in touch with us by mail, please send all correspondence to our new location at 19800 MacArthur Blvd., Suite 700, Irvine, CA 92612.

Juror Passions Can Foretell Leanings

Education, employment, marital status – all important data to know about your potential jurors, but it doesn’t necessarily tell you what they really care about.  We recently sat through a trial where one attorney mixed up the routine voir dire questions by asking jurors to talk about their passions.  The answers were fascinating, and ended up predicting juror leanings and leadership potential far better than a dry recitation of hard facts.

For example, the woman who meets weekly with her Jaguar car club had a significant amount of disposable income, and her conservative nature mixed with a fun, outgoing personality made her an easy choice for foreperson.  The marathon enthusiast was a strong believer in personal responsibility, so the plaintiff’s claims in this specific case annoyed him from the start.  The woman who volunteers at a battered women’s shelter had an empathetic personality, but also was less sympathetic to the plaintiff because her problems did not seem particularly troubling when compared to those of the women this juror typically sees.

In addition to learning about these jurors’ hobbies, it was also instructional to observe them as they discussed their passions.  When someone is engaged, you can often see a different side of their personality.  We could immediately sense who was going to be a leader and who would follow the group, as well as get an idea for what personalities might click with or grate on each other.

We understand not all judges will allow questions that go beyond the basics.  But if you can, we highly suggest digging deeper than straightforward demographic queries to learn more about what makes your jurors tick.  Because oftentimes, these things can provide helpful clues as to which way they will side on your case.

For more suggestions on beyond-the-basics voir dire questions, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.

We’re excited to announce Jury Impact has moved offices. If you would like to get in touch with us by mail, please send all correspondence to our new location at 19800 MacArthur Blvd., Suite 700, Irvine, CA 92612.

Low Income Could Mean High Awards

One of the major hot-button issues during this year’s presidential race is the perceived vast income inequality in the U.S.  Bernie Sanders’ platform is in large part based on his socialist ideals, while Democrats and Republicans debate whether there should be a flat tax versus a higher tax for the wealthy.  This debate splits voters right down the middle, and we’ve noticed how differences between those at the top income bracket and those at the bottom can directly shape opinions in the courtroom.

We’ve worked with more than 7,000 participants during our 12 years of experience conducting focus groups and found jurors whose annual household income is less than $25,000 are 1.3 times more likely to find in favor of the plaintiff than those whose annual household income is $75,000 or more.  We’ve also observed these plaintiff-oriented jurors are more willing to spike damages, including some outliers who award incomprehensible amounts.  On more than one occasion, we’ve heard jurors recommend awarding plaintiffs an eye-popping $1 billion. 

Although a small number of jurors treat awards like “monopoly money,” the majority of low-income jurors’ decisions to award damages are rooted in their plaintiff-friendly ideals.  For instance, our data shows those whose annual household income is less than $25,000 are more likely to believe corporations should be punished more harshly than individuals.  Low-income individuals are also more willing to take lawyer’s fees into account when deciding how much to award and are more likely to award extra money to “take care of” an injured plaintiff “just in case.”

These facts can add up to troublesome awards from a defense perspective, but the perception of “fairness” can work in your favor.  Low-income jurors are also more likely to decide a case based on what’s fair rather than the letter of the law.  Therefore, it is important to ensure you counter the plaintiff’s award in terms of fairness.  Clearly explain the reasons behind your damages number so jurors have an understanding that the defense isn’t “lowballing” – it’s suggesting fair and reasonable compensation based on facts about life expectancy and previous medical costs.

Although replicating the sympathy factor present at trial during focus groups can be tough and there’s no way to definitively predict how anyone – including low-income jurors – will respond in the courtroom, examining the reasoning behind jurors’ awards can help.  Please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net if you’d like assistance learning what factors jurors in your jurisdiction believe are important.

We’re excited to announce Jury Impact has moved offices.  If you would like to get in touch with us by mail, please send all correspondence to our new location at 19800 MacArthur Blvd., Suite 700, Irvine, CA 92612.