Supplemental Juror Questionnaires, Part 2: This Time, It’s Quizzical

I invite you to read the previous post, “Supplemental Juror Questionnaires, Part 1” before reading this. Or not. Your call.  – Rich

The SJQ Introduction: Include a Welcome, Some Thanks, And Always Use Normal Human English

So by way of illustration, permit some delicate dissection of a real questionnaire used last week somewhere in America. Though it is for a criminal case, the lessons apply equally to civil ones.

First let’s look at the introduction. After some fairly boilerplate introduction and instruction not to discuss the case, it says:

“You may not do research about any issues in the case. You may not blog, Tweet, or use the Internet to obtain or share information. (CCP §1209(a)(10))”

OK, good clear instruction in the words… then humorously undermined by the citation. This is being handed to laypeople. At best, citations are completely unnecessary, and at the worst they are an invitation to research what the hell “CCP §1209(a)(10)” is. Not exactly scrubbing the document for layperson relevance or how the document could lead the reader astray.

In my SJQ’s, besides writing in a normal human style, I like to include the word “welcome” and the idea of “thanks” in the very first sentence. Again, we are trying to lower barriers to communication during the whole jury selection process, even written communication. All boilerplate introductions for SJQs I have seen are very lawyer-centric, using very formal language, passive voice sentence construction, stilted grammar, and ornate vocabulary. It’s all off-putting. But one that starts out “Welcome to your courthouse, and thank you for your service as a juror today,” is likely to engage the respondents a bit more.

In this SJQ, there is this formulation that gets repeated despite being confusing, ungrammatical, doubly negative, tortured, and abstruse:

“[Insert a case fact here.] Will you be able to not let that fact alone influence any decision you will be asked to make in this case?”

This sentence could only have been written by someone with a J.D. It could only have been agreed to by another person with a J.D. And it could only have been finally approved by the neutral power-holder who also has a J.D.

The grammar is atrocious, of course. I’m not an automaton on forbidding the splitting of infinitives, but in this case, it sure muddies the meaning. And one respondent could write “yes” and the next one write “no,” but both mean the exact same thing. So, you know, that will be fun sorting out in verbal questioning, and there goes the time we saved by using a SJQ, and the judge will grump and frump that much more the next time a lawyer asks for a questionnaire. “Aw, we used one last month and it added more time and made things even more confusing, not less, so I won’t grant your questionnaire.” I’m not kidding; crappy questionnaires of the past led to crappy experiences in the courtroom, which leads to judges not wanting to permit good ones and enabling the upward evolution of this process. We all owe something to improving the process.

But there is something even more subtle about this question as worded: It telegraphs the “right” answer to the respondent. By saying “Will you able to not let it influence you” versus “What effect might it have,” it is telling readers that “We expect that you will not be influenced by [X fact]… Now tell us you answer.” The more open-ended wording demonstrates an actual desire to understand.

A better formulation: “What effect, if any, might this fact have on your feelings about this case?”

Another repeated formulation in this questionnaire:

“[Insert case fact or a rule of law here.] Would that impact you to the extent that you could not be a fair and impartial juror in this case?”

Trying hard to leave aside that “impact” is a noun, not a verb, let’s notice two things about this common phrasing. One is that “fair and impartial” is a USELESS phrase to use with and to laypeople during jury selection. EVERYONE thinks he or she is fair and impartial. Asking someone whether he or she is impartial is as helpful as asking bananas what is the epitome of fruit. What do you THINK the answer is going to be?

The other thing to notice about this question is that lousy, lawyery wording “impact you to the extent that blah blah blah.”

A better formulation: “How might this fact affect your thinking in this case?” Or if you have a judge who simply will not allow a question that open, then: “Might this fact make it difficult for you to sit as a juror in this case?” Notice I am giving them a standard they actually will think about and be honest about – whether it would be hard to serve – and ditching the “fairandimpartial” Pavolovian bell that will produce the inevitable reflexive “Of course I can be fairandimpartial.”

Please come back for the third part of this discussion of SJQ’s, to be published a few days from now. Thanks!

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