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A recent article in the journal Science demonstrated that people often make decisions without being consciously aware of their choices.

Our research has shown a similar phenomenon among jurors. Some jurors make up their minds before the trial begins, without conscious awareness of their decisions. Identifying such jurors during voir dire is imperative because the case may be over for them before it begins, even though they aren’t likely to acknowledge it.

Trial lawyers must understand that jurors are persuaded by evidence that confirms their inherent beliefs, something known as “confirmation bias.” If those attitudes and beliefs run counter to your case, you are unlikely to win, despite the strength of the evidence and the justness of the case.

Trial lawyers often suffer from what psychologists have referred to as naïve realism, believing any reasonable juror will share their own perception of the evidence. But make no mistake about it – jurors process evidence as partisans.

Once seated, they will search for evidence that confirms what they already believe. Thus, the lawyer’s goal in jury selection must be to identify potential jurors who have made up their minds and are biased either for or against his or her case.

Look for bias

The first task of jury selection is to give jurors permission to admit bias without feeling they are revealing something negative about themselves. Research has shown that people are more likely to disclose information about themselves to someone who has already disclosed something to them. Try disclosing something about yourself that is not too personal, but demonstrates a life experience that might prevent you from being impartial in a certain type of case. In doing so, you communicate that an experience may cause bias in one type of case, but not in most other cases. This helps potential jurors save face.

For instance, one of the authors’ fathers is a dentist. In jury selection, he might tell the panel, “My father is a dentist, and I think I would have difficulty sitting as a juror on a dental malpractice case because I might be thinking about my father. That does not make me a bad person or a bad juror; it just means I would probably be a better juror for a different type of case.” This approach also serves to educate jurors about how to get excused for cause.

Once the jurors receive permission to disclose, the next step is to create an open, frank discussion.  Unfortunately, judges are trending toward limiting the amount of time devoted to attorney-conducted voir dire. The opportunity to have a lengthy, open-ended discussion with the panel is now the exception, not the rule. Thus, making the most efficient use of the allowed time is essential.

One way to save time and help identify important areas for follow-up and cause challenges is by asking the court to allow the use of supplemental juror questionnaires. These questionnaires are particularly helpful in gleaning information potential jurors might be uncomfortable or embarrassed to disclose in a group setting, such as certain medical problems.

For instance, in a case involving psychiatric medication, it would be important to know which members of the panel are taking such medications or have had previous experience with them. But it is highly likely jurors would be reluctant to disclose such information to a group of strangers.

During jury selection, always have someone assist you whose sole responsibility is taking notes and observing non-verbal behavior. Our research has shown that members of the panel who disclose one message verbally and another non-verbally are what we have labeled “stuff happens” jurors.  These jurors have an increased tendency to find against the plaintiff on causation grounds, rationalizing that “stuff happens” and no one is responsible.

Such individuals would fall into the category of having decided the case without conscious awareness.  If asked directly, these persons would state emphatically that they could be fair and impartial, keeping an open mind about the evidence presented.

Nevertheless, we find that the case is over before the trial begins for these people. Having someone keep an eye on non-verbal behavior will help identify such potential jurors.

Another helpful tool in identifying these types of jurors is to ask what burden of proof individuals would require before deciding in favor of the plaintiff. Our research shows that these jurors require a greater level of proof to award a large sum of money, such as an award against a doctor.

Confirm the bias

Once you have identified a potential juror with a bias or pre-judgment, you must get him or her to commit to that position to avoid rehabilitation by the other side. This means confirming that the juror would have to be absolutely certain about the evidence in order to find negligence, feels strongly about this viewpoint, has held it for a long time, and would be unlikely to change his or her mind.  Using closed-ended questions is an important technique in getting a potential juror to commit to this attitude. But be gentle in your questioning, so as not to lose rapport.

Finally, when considering the use of peremptory challenges, you should keep two things in mind.

First, jurors who have personally relevant life experiences are dangerous because they tend to serve as experts during deliberations. Typically, this is bad for the plaintiff. Such jurors substitute their own experiences for the evidence. Thus, an engineer on a product liability jury and an accountant juror in a case where financial evidence is in dispute are both dangerous jurors.

More subtly, in an emergency room malpractice case, a parent with a chronically sick child who has visited the emergency room repeatedly will be perceived by other jurors as an expert on how emergency rooms work.

Second, identifying the individuals who will emerge as leaders on the jury is critical. If you are choosing between two bad potential jurors, consider striking the juror who likely will be a leader.  People of high status, individuals who are highly educated, supervisors, people with relevant personal experience, former jurors and leaders outside the courtroom will all be potential leaders in the jury room. Such individuals will likely shift the jury’s decision in their direction, so beware.

David A. Wenner of Phoenix and Gregory S. Cusimano of Gadsden, Ala., are principals in the trial consulting firm Winning Works LLC, and trial attorneys with expertise in litigation, trial strategy and jury selection. They developed a Jury Bias Modelä that is used by many litigation firms across the country.

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