The Questions Themselves: Part Social Science, Part Strategy

Often, questionnaires written by lawyers are… well… Look, a lawyer attempting social science based only on intuitive commonsense is like watching social scientists try to practice law with only intuitive commonsense. Which is to say, it’s a little like watching a dog drive a car—we understand the desire to try, and they probably think they’re doing a sufficiently good job, and hey, they are somewhere closer to their destination than before. But still…

As we have discussed, supplemental juror questionnaires are crucial, and it is simply essential that we use language and grammar that laypeople will follow. It is also necessary that the questions be of good quality for getting good quality responses and not just nice people telling us what we want to hear. And at all times, we must remember that we are trying to elicit information that will help us develop cause challenges and intelligently exercise peremptory challenges. So for each question – both the idea of it and the execution of it – we must ask, “How will this help me improve the jury pool?”

And, counsel, one of many things I have learned since going into applied jury research is that there actually are right and wrong ways to write questions so that they will produce answers that we can use in our decisions.

• The questions have to be understood by the recipients the way we intend them.
• They have to be unambiguous.
• They have to provide information that differentiates the respondents. (Counterexample: “Can you be fair and impartial?” Everyone gives the same answer.)
• They have to be in a sequence that doesn’t taint one’s own research by activating some feelings before eliciting some opinions.
• And they have to achieve the first purpose of voir dire: helping us develop cause challenges and intelligently exercise peremptories. (So questions like “Who’s your biggest hero and why?,” while interesting and possibly revealing about them as people, are not worth the precious real estate on the form.)

More Ain’t Necessarily Better

And one other practical thing: Every question you include in the questionnaire means another bit of data that has to be read, evaluated, perhaps keyed into a spreadsheet or database—generally late into the night before live voir dire. Your team has better things to do than spend 20 minutes per questionnaire, charting “Thoreau” as biggest hero and endless pages of questions that do not reveal side preference in your case. There is enough to do with analyzing and organizing the good data, drafting follow-up voir dire questions for individuals based on their answers, and scoring the prospects. If the court provided the randomized juror lists so the parties can know in what order the prospects will be called, then one should war-game the likelier scenarios to start budgeting peremptory challenges.

Feh. Keep the SJQ tight. You’ve got enough to do.

In all but extremely rare cases, 5-10 pages should be plenty (not counting lists of potential witnesses; but for the sake of trees, please list them in two or three columns).  Five minutes per questionnaire with a group of 90 initial venirepersons is already SEVEN hours (7.5 hours, in fact) and that’s without breaks or conferring with the trial team.

Just know that every question creates byproduct that you’ll have to live with the night before an event that, in order to master it, demands decent rest and a clear mind.

I’m not saying questionnaires should be short for the sake of being short. I am saying that every question has to carry its weight.

Hey, You Mind If OUR Side Gets A Chance To Develop Some Cause Challenges?

One of the things that regularly surprises me in reviewing draft questionnaires that lawyers send me is the high number of questions that will only uncover information that helps the other side uncover information that could support cause challenges or guide intelligent peremptory challenges, but not our side, but not notice it. The most common way this arises is in the sub-question follow-up, “If YES [or NO], please explain.”

Sometimes, there are obvious and excellent reasons for only calling for follow-up from one and not the other, such as “Have you or anyone close to you been a victim of sexual harassment while at work?” or “Have you or anyone close to you ever reported a crime to a law enforcement agency?” In those instances, we only need more from the “Yes” respondents.

But much more subtle is the built-in bias – hell, the absolute barricade – that blocks one side from getting parallel information to support and inform challenges while the other gets all the opportunities for the fruit.

Consider a plaintiff attorney who receives a draft SJQ from defense counsel that contains:

“36. This case is a dispute between a person who claims she was hurt by a doctor’s care and the doctor who says he followed standard medical practice. Would you be inclined to automatically believe someone who claims to have been hurt by someone else?   __Yes __No.   If YES, please explain: _______”

Now, hold it. Each side in voir dire is trying to sniff out prospective jurors who might be BAD for them, so the defense is trying to sniff out the pro-plaintiff jurors, or the ones who might answer “Yes” to this question. And the more the respondent explains, the more fodder the defense has for a cause challenge, or failing that, better calibration for whether this person is worth a peremptory challenge.

But what about the plaintiff? The people who would say “No” to this question—why exactly are they excused from sharing their non-plaintiff views? Some portion of those would be anti-plaintiff, desirable information to plaintiff counsel, so why shouldn’t the plaintiff side have a shot at uncovering that information from the same question? If I were advising the plaintiff, I would suggest that the question say:

“Some people usually believe a person who says he or she was harmed; others do not. Please explain which side you are closer to, and why?”

It’s balanced – read: unobjectionable –  and it takes away the other side’s monopoly on getting information that might help their challenges.

Likewise, if I’m on the defense side of a civil case and the plaintiff lawyer sends over this:

“24. Do you support “tort reform” or “caps” on damages, or support groups seeking changes to the laws to make it harder for people to pursue lawsuits if they think they have been harmed by someone else’s actions? __Yes __No. If YES, please explain: _____________________”

I would probably recommend to my defense client:

“24. Some people believe in “tort reform,” “caps” on some kinds of jury verdicts, and laws that would make it more difficult for people to pursue lawsuits if they think they have been harmed by someone else’s actions. Others do not agree with these ideas. Which side are you closer to, and why?”

It’s a better question for my client because it removes the bar to getting information from the same basic question that might help our side.

Real Example. Real Problems. Real Common.

“A Defendant in a criminal action has the absolute Constitutional right not to testify and is presumed innocent. If the Defendant exercises his right not to testify, would that impact you to the extent that you could not be a fair and impartial juror in this case? If yes, please explain.”

Now, let me say that I am neither rooting for the prosecution nor the defense here; this is not about wanting either side to win. But as a professional in the business who wants to see things done well, this question drives me somewhat nuts.

There are a bunch of big things wrong with this question.

(a) The question telegraphs the “right” answer in the first sentence by telling respondents what the rule is – an “absolute” Constitutional commandment, no less –  rather than actually exploring jurors’ true feelings on the topic. This guarantees that a large percentage of people who really WOULD have strong feelings if the defendant did not testify will not admit that. The “rule-first-then-ask” structure of this question just about completely kills its value as a matter of social science, and severely handicaps the defense as a strategic matter.

(b) “Impact” is a noun, not a verb—that’s right, dammit, I said it. And anyway, what are we; wisdom teeth? More to the point, it’s an awkward word, not an inviting word for prompting laypeople to explore.

(c) “Impact you to the extent that you could not be fair” is complex wording for laypeople, and frankly asking for an impossible calculation for humans to make about their own psyche. Putting aside that asking people to diagnose the subtle gradations of their own bias is like asking a car engine to figure out why it is making that knocking sound, any question that you have to read twice because the wording is stilted is simply per se unfit for layperson consumption.

(d) Everyone thinks he or she is fair, so asking people whether they can be fair will not get differentiating, usable data. Yes, a few people might respond that they would still have feelings if the defendant does not testify, i.e., that they suspect the defendant is more likely guilty. But those responses will be dishonestly tempered for having heard the rule first, and then upon later what our field hilariously calls “rehabilitation” by the judge, the juror will say “yes” when the judge asks, “Despite these feelings, would you be able to put that aside, follow my instructions about the law, and be a fairandimpartialjuror?”

(e) “If Yes, please explain.” In other words, only people who have an opinion that is against the side who drafted the question should have to elaborate and provide the very grounds on which they will be excused for cause, but the other side will get no fodder for their challenges. Why would I agree to that?

I swear I’m not picking on either the deputy defender or prosecutor assigned to this case— as I say, almost no lawyers excel at writing SJQ’s, as it combines two things litigators do not habitually do: think in terms of proven social science research, and go one full minute without advocating. This is probably a form questionnaire that has been floating around both their offices for years and nobody knows who originally wrote it or even looks afresh at it anymore. I sure know that’s true of proposed SJQs I see in civil cases.

Me to Client: “So… what’s the goal of Question 38?”

Client, Usually a Partner: “Don’t know, Rich; it’s been there since I was a summer clerk in the 80’s.”

So has Spandau Ballet, but we managed to let them go.

Here is my fix to that question:

“38. If the defendant does not testify, is there a chance that would affect your thinking about this case? ___Yes    ___No.

Please explain ______________________”

First, notice that the question does not telegraph the “right” answer, thus allowing for MUCH more meaningful data from prospective jurors. Then notice that the language is simple and clear, and isn’t asking jurors to perform some impossibly abstract psychological self-diagnosis.

Finally, notice that it asks for explanation either way—so that OUR side (whichever that is in a given case) might actually get some helpful information, too, for cause and peremptory challenges.

When I consult in criminal cases on the defense side, I always use this question, and it always sniffs out bad jurors. We’ll get answers like “I would wonder what they have to hide,” which is actually a reasonable answer, and one that shows relatively weak antipathy toward Fifth Amendment principles. It usually won’t support a cause challenge without further development under verbal questioning. But sometimes we get answers like, “It tells me that he’s guilty; if I were falsely accused, I would defend myself.” That’s a much stronger answer and reliably correlates with an inability to abide by the Fifth Amendment.

The SJQ: Fall in Love All Over Again

The supplemental juror questionnaire is a great idea with which most lawyers have had some bad experiences along the way. But cheer up: It does not take a PhD in clinical psychology to write good SJQs, to write good quality yet simple questions, to notice things in the drafts proposed by your opponent that might not help you achieve your voir dire goals, or to recommit yourself to reading things through the lenses of laypeople who didn’t go to law school nor spend two years with your case as you have. I hope these articles have given you some helpful pointers to think about as your next trial approaches and that you’ll find it easier to write good SJQs.  It’s worth being a little anxious about, but not scared.

As always, if you have any questions, get in touch with me.