Episode #39 – Voir Dire

Demographics (age, gender, political affiliation, occupation, etc.) are not predictive of juror behavior and decision-making. Instead, juror attitudes, beliefs, experiences, and personality traits are what most influence how jurors will evaluate a case. Understanding these deeper characteristics requires a different, more scientific approach to voir dire, particularly with jurors you will encounter post-Covid-19. Watch the podcast to understand why demographics aren’t predictive, how jurors actually make decisions, and what changes you should implement in voir dire to select the best jurors for your case.

Full Episode Transcript

[0:05] Bill Welcome to another version of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky here today. We’re going to talk a little bit about jury selection and what the thing—what kind of things you should be looking for in voir dire, and post-COVID-19 and post—or during concurrent—social unrest. You guys have to do things a little bit differently, but let’s just talk about the basics. This slide right here, I’m sharing my screen with you. Demographics: tip of the iceberg. Now, unfortunately, attorneys have been using demographics to pick juries for a long time, and they’re notoriously not predictive of verdict outcome or amount of damages. But that tends to be what the attorney’s most comfortable with, and there’s a lot of stereotypes involved which are—which are really not true. Like, for example, social workers: “I have to strike them because they’re always going to vote plaintiff.” That is not true. Or, um, “I want an accountant. I want an accountant on my jury because an accountant will never award high damages.” That’s not true either. But that’s a lot of the—the myths and stereotypes that are out there.

[1:17] Bill As you can see from this slide, it’s really all about attitudes, beliefs, experiences, and personality types. And that’s why you need—really need—a PhD psychologist to help you design your voir dire questions and make sure you’re able to actually assess these psychological variables that go well beyond demographics. And attorneys sometimes struggle with this, meaning you have to ask the right questions during voir dire, either orally or on a juror questionnaire, to tap into these attitudes, beliefs, experiences, and personality types. And these are the things that are actually highly predictive of verdict orientation and damages.

[1:59] Bill Now, some additional questions you’re going to have to start to ask because the world has changed, folks. Okay, the world has changed. Kind of like post-9/11, you had to change the jury selection because that event changed everybody. This COVID event, combined with the social issues that we’re having in 2020, is going to change everybody right across the board. So you’re going to have to ask some pretty sensitive questions involving, you know, how COVID has affected one’s life. You know, economically, financially. Uh, were people laid off or furloughed or even lost their jobs? Right? And there’s—is there some anger or resentment, uh, you know, from those people? Uh, health issues. Are people terrified of this virus? Do they have a family member or a friend that’s close to them that—that got the virus and became ill or even—or even died? You’re going to have to ask about that.

[2:51] Bill You’re going to ask—have to ask—about their—their opinions of corporate America and the backdrop of social unrest and—and COVID-19. And these are going to be very sensitive questions. You are going to have to ask, depending on the type of case and type of venue that you’re in, you may have to ask questions about, you know, whether a juror does or does not support Black Lives Matter, right, or other types of organizations. Uh, because there may be a racial issue in your particular case. So I think the types of questions going forward that attorneys are going to have to ask jurors are going to be pretty intrusive and sensitive. And so, what I would suggest is—well, hopefully you call me for help because we have authored a lot of these questions already—but if—if these questions are asked in a questionnaire format, you’re going to get—you’re going to get some honesty from jurors because some of these answers are very sensitive. Um, if you ask these in oral voir dire, I think a lot of people don’t want to talk about these things in open court. And so I think one of the major things that I would suggest: file a motion for a supplemental juror questionnaire. Typically, your adversary wants the same thing because they want answers, and then you can give some of your more sensitive, uh, questions in questionnaire form.

[4:18] Bill Now, why—why is studying these belief systems and that—why is this so important? Well, I’ll tell you why. Because jurors don’t make decisions like they’re told. Okay, so you see over here on the left, see, logically, right? Logical decision making, reasoning. The jurors are told, you know, “Listen to both sides, right? Listen to both sides of the story. Then we want you to objectively evaluate the evidence from both sides. We want you to do one of these, and then we want you to make a judgment on who you favor based on the results of this and this.” That’s exactly what they’re told to do by the judge with the jury instructions. That’s not how jurors make decisions. It’s not how their brain’s wired. Okay, it’s impossible.

[5:07] Bill What happens is they do the opposite, what we call backwards, otherwise motivational reasoning. Meaning, jurors make preliminary conclusions based on pre-existing beliefs and attitudes. Okay, there’s pre-existing beliefs and attitudes. This is the filter that all this stuff goes through, and then jurors will selectively evaluate the evidence to fit their predetermined conclusion. Meaning, if they see something they like, they—they accept it, they absorb it. But when they see something that contradicts with their pre-existing belief or attitude, they ignore it. And that’s why this can be a big, big problem. And a lot of attorneys get so mad because they don’t understand that jurors cannot objectively see the case. They cannot objectively weigh both sides. It’s impossible.

[6:01] Bill What they’re going to do is they’re going to come in with the pre-existing set of beliefs, set of attitudes, and if you’re not able to evaluate them accurately in voir dire, you’re not going to strike the right jurors, and then you’re going to be behind the eight ball when you actually put on your opening statement and you start your—you start your case against the plaintiff. So that being said, in review: things are going to change, uh, because of COVID, because of social unrest. Whatever voir dire questions you typically have, if you have a file where you keep the typical questions you ask, I’m not so sure those are going to work anymore. We may have to adjust those. We have to delete some of those and we’re probably going to need some new ones. Because as we go forward and the courts start opening up, we’re going to have a very different group of people in that jury box than what we had earlier in the year. Thank you very much, and thank you for watching the Litigation Psychology Podcast.