When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract, but had prevailed in avoiding an interlocutory injunction shutting down his new company. We have moved through discussions of the discovery process, mediation/arbitration and are now on to a final trial.
The process of a final jury trial is so complicated that it could consume our discussion for the remainder of the year. In order to move along, we will discuss the trial process in just two articles. For this month, we will look at jury selection. Next month, we will look at the actual trial process and verdict.
Jury selection is a very misunderstood process outside of trial lawyers. Most non-lawyer members of the public believe that they are “selected” or “picked” for jury service. In fact, it is quite often the case that in post-trial interviews jurors want to know “Why did you pick me?”. The reality of the process is that jurors are not “picked” but rather jurors are “struck” and the jury which ultimately tries the case consists of those jurors who remain and are not stricken by either party.
The process begins with a qualification process administered by the Court. If a jury of 12 (with 1 additional alternate) is to be seated, the Court will generally bring 36 or more eligible jurors into the Courtroom. The Court will generally confirm that the jurors brought in are eligible to serve (over the age of 18, residents of the County and not been convicted of a felony). The Court will then confirm that the jurors do not have any personal relationships or connections to the case being tried so as to be impartial or biased.
Once the jurors are confirmed as eligible, the parties to the case begin a process called “voir dire.” The term is so archaic that lawyers cannot even agree as to how to pronounce it. In regions outside of the South, “vwah deer” is the prevailing pronunciation. Much as we do with all such things, Southerners tend to eliminate the European accent and say “vor dire.” The process is more actually called “Q & A.”
In this process, each lawyer will ask the potential jurors are variety of questions about themselves. The lawyers can ask questions based on the case, but not ask anything specific about the case or ask the jurors to prejudice the case in any way. By way of example, in our case involving Dick and his former company, both lawyers would be interested to know which jurors owned businesses and which jurors were employees of businesses. The lawyers might be inclined to know which jurors had left a company to start up their own business. Deeper questions might involve asking the jurors to discuss or opine on whether they believe a contract was inflexible and binding or whether concepts of freedom and liberty of employment were more important. The process walks a fine line in trying to solicit the personal leanings and sentiments of a jury without impermissibly asking them to judge the case at hand. Most lawyers also have a series of standard, general questions designed to elicit personality types (leader v. follower), understandings of the legal system, prior dealings with Courts and lawyers, etc… For example, a juror who reveals that he/she is an ardent fan of legal TV shows like Law & Order, CSI and NCIS will often have an unrealistic expectation of evidence and the drama of a real trial.
During the Q & A process, both sides of the case take notes and score the jurors for positive and negative attributes related to the case. When the questioning is complete, both sides have the opportunity to strike or excuse any jurors for cause (meaning the juror is biased, has a personal conflict or something that prohibits them from serving). Next, a sheet listing all of the jurors is given to the Plaintiff’s attorney. The sheet lists the first 24 eligible jurors and the next 3 eligible jurors. From the first 24 names, the Plaintiff “strikes” out one name and passes the sheet to the Defendant. The Defendant then “strikes” out one name and passes the sheet back. This continues until each side has stricken out 6 names, leaving 12 remaining. Each side uses their strikes to remove the jurors they believe to be the most harmful to their case. Jurors cannot be stricken for reasons related to gender, race or age and if a party believes such behavior has occurred, the party can challenge the other party to provide a non-prohibited basis for the strike. There is incredible strategy in the order in which jurors are stricken. Often times a party will hold off on striking a potentially negative juror to see if the other party will strike that juror first. This gives the first party the ability to strike another juror.
After the first 12 strikes, the 12 individuals remaining will constitute the trial jury. From the next 3 eligible jurors, each side strikes 1 name and leaves the remaining person to serve as the alternate juror. In high profile cases or cases which will last an extended period of time, a Judge might require that 2 or 3 alternates be selected. The alternate juror sits through the entire proceeding not knowing that they are the alternate. If at any time a member of the 12 is excused for behavior, illness, emergency, bias or any other reason, the alternate is moved onto the formal jury. If the trial ends without using an alternate, then the alternate is excused and does not take part in deliberations.
As you can see, a jury is not “selected” but rather “eliminated” which is the basis for the phrase “striking a jury.” Quite often, the jury seated is made up of individuals who answered few, if any, questions during the voir dire process. By largely remaining silent, these jurors gave very little information from which one side or the other could make a negative association.
In other words, if you want to increase your chances of NOT being on a jury, speak up early and often during “voir dire.”