Practice Tip: Maximizing Jury Questionnaires to Your Client's Advantage

“Which of the following statements do you most agree with?

• Plaintiffs should bear the burden of proving the allegations they make.
• Defendants have the responsibility to prove that their products are safe.”

In any product liability litigation, and regardless of whether you represent the plaintiff or the defendant, it is essential for counsel to be fully aware of any biases or strong opinions a prospective juror has regarding the legal system in this country. To probe this issue, you may ask the following:

“Which of the following do you most agree with?

• Lawsuits are an important way of correcting mistakes in business.
• Lawsuits are bad for society and for the economy.”

A third reason for juror questionnaires is that they supplement voir dire. In other words, even if your trial judge will allow for unlimited lawyer-conducted voir dire, having the answers to questions such as those posed above will enable counsel to study more fully the biases and opinions held by the prospective jurors.

Fourth, juror questionnaires permit jurors to answer what may be sensitive questions privately, rather than in front of other jurors. So even though you might be able to ask all of the above juror questions, including those that would reveal the potential juror's moral views during lawyer-conducted voir dire, prospective candidates are typically not as candid about their biases when answering orally in open court.

Finally, having the answers to these questions in writing and in advance of voir dire allows counsel to make advance determinations as to which potential jurors counsel is likely to want to strike for cause and/or for whom counsel might wish to exercise a preemptory challenge. Striking a jury is a fast-paced process and these very important decisions often have to be made on the fly. Juror questionnaires give counsel meaningful information and additional time to reflect on jury selection strategy.

In the weeks before trial of a product liability case, you will presumably begin to focus more significantly on jury selection, perhaps the most important stage of any jury trial. One way to maximize the voir dire process is to use juror questionnaires ' a series of written questions that are given to the prospective jury panel and answered in writing by each prospective juror prior to voir dire.

Why would you want to use juror questionnaires? First, they can be particularly useful when your trial judge will allow only court-conducted or limited lawyer-conducted voir dire. They provide counsel with an opportunity to ask questions that are important to your client's interests, but that the court may not ask or that limited voir dire proceedings may not accommodate.

Second, they allow counsel to pose questions in advance of voir dire, the answers to which will enable counsel to determine the proposed juror's biases or attitudes. In product liability litigation, this can be extremely important. Juror questionnaires can also be excellent tools for determining whether a potential juror has a predisposing bias toward one party or the other. For example, consider the following illustrative juror question:

“Which of the following statements do you most agree with?

• Plaintiffs should bear the burden of proving the allegations they make.
• Defendants have the responsibility to prove that their products are safe.”

In any product liability litigation, and regardless of whether you represent the plaintiff or the defendant, it is essential for counsel to be fully aware of any biases or strong opinions a prospective juror has regarding the legal system in this country. To probe this issue, you may ask the following:

“Which of the following do you most agree with?

• Lawsuits are an important way of correcting mistakes in business.
• Lawsuits are bad for society and for the economy.”

A third reason for juror questionnaires is that they supplement voir dire. In other words, even if your trial judge will allow for unlimited lawyer-conducted voir dire, having the answers to questions such as those posed above will enable counsel to study more fully the biases and opinions held by the prospective jurors.

Fourth, juror questionnaires permit jurors to answer what may be sensitive questions privately, rather than in front of other jurors. So even though you might be able to ask all of the above juror questions, including those that would reveal the potential juror's moral views during lawyer-conducted voir dire, prospective candidates are typically not as candid about their biases when answering orally in open court.

Finally, having the answers to these questions in writing and in advance of voir dire allows counsel to make advance determinations as to which potential jurors counsel is likely to want to strike for cause and/or for whom counsel might wish to exercise a preemptory challenge. Striking a jury is a fast-paced process and these very important decisions often have to be made on the fly. Juror questionnaires give counsel meaningful information and additional time to reflect on jury selection strategy.