jury selection in employment litigation: preparing for...

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Jury Selection in Employment Litigation:

Preparing for Voir Dire, Identifying Bias,

Leveraging Strikes

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, APRIL 6, 2016

Presenting a live 90-minute webinar with interactive Q&A

Gayla C. Crain, Of Counsel, Gray Reed & McGraw, Dallas

Stephen E. Fox, Shareholder, Polsinelli, Dallas

Emily McDonald, Ph.D., Litigation Consultant, Bloom Strategic Consulting, Dallas

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FOR LIVE EVENT ONLY

JURY SELECTION IN

EMPLOYMENT

LITIGATION

Gayla C. Crain, Gray Reed & McGraw, P.C.

Stephen E. Fox, Polsinelli PC

Emily McDonald, PhD, Bloom Strategic Consulting

Agenda

• What does the modern jury look like?

• (De)-selecting jury members (and Batson

challenges)

• Danger of relying on demographics to select jury

• Factors other than demographics to assist in

selecting a jury

• Use of questionnaires in jury selection

• Use of social media in jury selection

5 ©J. Bloom, ©G. Crain, ©S. Fox

Modern Jury

• More educated … average is now “some college

education”

• Learn by watching, not reading

• Grab & go culture … get to the point quickly

• Most want to do good … but need guidance

• Participate in social justice

• More business acumen

• Used to more media coverage of court process


Jury (De)-Selection Process

• Central task—identify experiences/bias most harmful to

your case

• Process is one of de-selection

• Focus on experiences/bias rather than demographics

• Studies show:

• Demographic peers may judge party more harshly than non-peer

• Jurors in employment cases more likely to disregard evidence in

favor of own experiences

• Employment case juries spend more than 50% of time discussing

personal experiences, rather than evidence presented



• Dangerous to generalize about jurors based on

demographics

• Gender, Race, Ethnicity or national origin

• Religion, Age, Marital status

• Socio-economic status

• Difficult to obtain reliable demographic info during

voir dire

• In federal court, jury selection is limited by time and ability to

question jury panel members



• Court may permit parties or attorneys to examine jury panel or

may do so itself

• If Court examines, it must permit parties/attorneys to make

further inquiry court considers proper, or court must ask any of

the additional questions it considers proper (Fed. R. Civ. P.

47(a))

• Parties get 3 peremptory challenges in federal court in civil

cases (Fed. R. Civ. P. 47(b))

• State court peremptory challenges vary according to jurisdiction

and panel size

• State court procedure for seating alternates also varies



• Through voir dire, jurors are excused, challenged for cause,

challenged peremptorily or qualified

• Excused – usually for a personal reason

• Challenged for cause – based on a specific disqualifying

situation

• Challenged peremptorily – based on party’s unspoken desire to

strike a particular juror

• Peremptory challenge - subject to challenge by another party



• Case law shows that trial judge has nearly unreviewable

discretion during jury selection

• Challenges for cause—there are no hard and fast rules for

grounds to excuse a juror for cause

• The ultimate question—can the juror reasonably be found able to

render a fair and impartial verdict even in light of some factor

suggesting possible bias or prejudice?

• If a prospective juror expresses doubt about her ability to be fair, she

should be disqualified

• Some bias are too grave to permit a juror to continue like having

a financial interest in the litigation or related to party



• Some biases too grave to permit juror to continue even if juror

professes ability to be fair

• Examples:

• Juror has a financial interest in the litigation

• Juror knows a party, attorney, witness

• Juror is employed by a lawyer or law firm

• Juror is an attorney who practices employment law

• Judge will rarely disqualify juror just because he has been fired and

states company was unfair

• Trial counsel must have follow up questions for each area of inquiry


Batson Challenges

• During 1980’s and 1990’s, U.S. Supreme Court held that the

exercise of peremptory strikes is limited by principles of equal

protection with respect to race, ethnicity and gender

• Interesting that the Batson challenge framework follows that of a

discrimination case

• First step – opposing party moves that a strike has been

improperly exercised

• Second step – if judge rules that inference of discrimination

can be drawn, then party who struck juror must provide

neutral reason for strike


Batson Challenges

• Third step – opposing party can argue pretext

• Judges rarely allow argument on a Batson

challenge to go on and on

• Key to surviving the challenge – neutral

reason should be clear, specific and sensible

• Batson challenge must be made as soon as

court announces jurors to be seated

(otherwise waived)



• After de-selecting jurors with biases, get jurors to care

about your case and your client

• Build rapport with potential jurors—to persuade them to

like and trust you

• Identifying bias does not mean playing the role of

inquisitor

– It involves having an open, honest conversation with jury pool in

which they can feel comfortable sharing their true views

– One way to combine the dual goals of juror de-selection and

education is to frame questions in a way that assumes your version

of the facts



• Listen, listen, listen … and do so with your eyes

• Tell something about yourself (to break the ice)

• Reflection builds rapport

• Poisoning the pool—just a myth

• Question structure—open vs. closed

• Less talking, mostly listening


Jurors Are Like Icebergs

• Demographics, while immediately visible, are less important than personal attitudes and experiences


Factors Other than Demographics

• Better indicator of juror experience and bias—

media and personal consumption

• Nielson stats show Americans spend a staggering

34 hours/week watching TV

• Much can be learned about a person based on her

personal consumption habits

– “… the question of what kind of information is being gathered

from TV watching is the key question to learn from a potential

juror in attempting to learn how his/her values are being

formulated.”


Factors Other than Demographics—

Media Consumption

• Television

• If juror states favorite show is “60 Minutes” (or another

news show)

• Might show that he/she is inquisitive or up-to-date in

current events

• If juror responds with legal drama like “Law and Order”

• May indicate juror considers herself an “expert” in the law

and could be dangerous in jury room



Media Consumption

• Jurors who identify as:

• Conservative or Republican;

• Get news from Fox News, Glenn Beck and Sean Hannity;

• Read news blogs like the Drudge Report or the Wall Street

Journal; and

• Believe that the “government does too much” and that

“individuals should ensure their own safety,” …

Are more likely to return a DEFENSE verdict



Media Consumption

• Jurors who identify as:

• Liberal, progressive, or Democrats;

• Get their news from CNN, MSNBC, Hardball and Rachel Maddow;

• Enjoy comedy news programs like Daily Show or Colbert Report;

• Read news magazines and New York Times;

• Believe that the “government should do more to solve problems” and

that “the government should ensure our safety,” ….

Are more likely to return a PLAINTIFF’S verdict



Income Level

• Info about purchasing goods/services

• Grocery shopping can be good proxy for potential juror’s economic status

• For example, jurors who shop at Whole Foods are more likely to have higher disposable income than those that shop at Walmart or Albertson’s (note, ask in questionnaire as jurors may be embarrassed to answer in group setting)

• Another useful proxy for income level—favorite or most-frequented restaurants

• For example, jurors who express preference for fast-food restaurants vs. big-box chain restaurants vs. more expensive restaurants may provide insight about level of disposable income


Tools to Obtain Insightful Data

• Questionnaires

• Social media


Supplemental Juror Questionnaires

• Juror information card typically only contains demographic

information (not good predictor of juror decision-making)

• SJQ

• Uses questions more likely to be predictive of juror decision-

making

• Uses case specific questions

• More likely to get realistic answers, as opposed to socially

acceptable answers in large group of strangers in formal setting

• Gives data points for each panel member

• Makes voir dire more efficient


Supplemental Juror Questionnaires

• Obtain agreement from opposing counsel to use a

questionnaire

• Agree on questions to be included in the

questionnaire

• Tell the judge both sides want the questionnaire and

the questionnaire is completed

• Have an agreed upon plan of how to administer the

questionnaire (the easier for the court staff, the

better)


Constructing Supplemental Questionnaire

• Know the jury information card and do not ask repetitive

questions

• Collect juror number and name for reference

• Use a combination of multiple choice questions, short

answer, and open-ended questions

• Use Likert style questions to assess level of agreement

(e.g. strongly disagree, disagree, agree, strongly agree)

• Important to know what a potential juror thinks about a

certain question but equally important to know WHY they

feel that way


Constructing Supplemental Questionnaire

• Use table to collect multi-part information (e.g.,

information about children, job history, leisure time

activities)

• Comprehensive and mutually exclusive categories

(e.g. divorced but remarried, ethnicity)

• Yes/No answers can be good identifiers for follow-up

during actual voir dire


Test the Questionnaire

• Before administering the SJQ, test it with focus

group or with people unfamiliar with case

• Use everyday language (8th grade level)

• Give clear directions

• Ask your test group to tell you what questions

they had when completing the questionnaire


Use of Questionnaires at Trial

•Develop directions for panel members:

•After filling out questionnaire, please place a “C” before any

answers you deem confidential

•You must fill out every answer completely

•Questionnaire is confidential

•Trial team should develop plan for:

•Instructing the jurors on how to complete the questionnaires

•To copy the questionnaires and share with opposing counsel

•Analyzing and coding questionnaire responses


Sample Questions • Have you ever served on a jury? Did you find in favor of the Plaintiff or

Defendant?

• Have you ever been a party to a lawsuit? Witness in a lawsuit? If yes, Please

explain.

• Have you ever had a business dispute with your employer? If yes, Please explain.

• What three people do you admire the most? The least?

• If you do not object, state your political preference.

• If you do not object, state your religious preference.

• Have your or a member of your family had any form of legal training?

• Describe your leisure time activities: (a) Hobbies, (b) Clubs, groups, fellowships,

unions or other organizations, and whether you are an officer, (c) Newspapers or

magazines you read regularly, (d) Favorite TV programs


Use of Social Media

• Social media can be powerful tool to identify bias

• Researching prospective jurors on social media

sites offers several advantages over traditional

voir dire

–People arguably more honest and less likely to self-

censor online

–People less likely in online forum to feel pressured

to say the “right thing” or to express the socially

acceptable view


Use of Social Media

• Sources of social media

– Facebook: king of social-media sites; > 1.6 billion active users;

users post information about demographics, families, marital status,

education, occupation, politics, and entertainment preferences

– Twitter: a “micro-blogging” site in which users post “tweets”

(messages of 140 characters or fewer); 500 million registered users

who post > 340 million tweets each day; users post tweets around

certain “trending” topics, including current events and politics—

subjects of great interest for identifying bias

– Instagram: social networking app made for sharing photos and

videos from a smart phone; similar to Facebook or Twitter, everyone

who creates an account has a profile and news feed


Use of Social Media

• Sources of social media

– Linked In: social networking site for the business community. Allows

members to connect and network with people they know or want to

know professionally

– Google: Conduct a Google search for the potential juror and/or

potential juror’s spouse using name and city to see what hits can be

found

– Public records databases: lawsuits, judgments, real estate records


Use of Social Media

• Even if social media doesn’t uncover directly

relevant bias, it may reveal other highly useful

information, like …

– Basic demographic information too time-consuming to collect

during voir dire

– Whether person is strident or overtly opinionated

– Whether person likes legal dramas and movies

– Whether someone is devoutly religious

– Whether someone has previously been involved with the

legal system (as a plaintiff, defendant, or witness)


Use of Social Media

• Examples of use of social media during the jury-

selection process

– In products liability case, defendant’s jury consultant

discovered juror’s Facebook page reflecting her hero was Erin

Brokovich

– In products liability case against ConAgra, defendant

discovered juror’s Facebook page with links to various

websites highly critical of large corporations (including link to

juror’s own blog, on which he had written: “F--- McDonald’s. I

hate your commercials. I’m not ‘lovin' it.”) … upon defense

motion, judge removed juror from jury


Use of Social Media

• Examples of use of social media during the jury-

selection process

– In criminal trial for sexual assault against black male

defendant, defense counsel fought to seat a white female juror

– While traditional demographic view might have counseled

against her as defense juror, her Facebook page revealed

numerous pictures of her with black male friends


Social Media Warning

• Extremely important—understand the network site

before researching jurors in order to know what kind of

foot print you will leave

• Understand how to make yourself private (e.g.,

LinkedIn and Instagram)

• Be aware of who can conduct this research in your

jurisdiction

• Keep up to date on the state of the law with regard to

social media analysis



• ABA Opinion 466 (April 2014)

• Passive lawyer review of website or ESM—like driving down

street where juror lives to observe environs and glean public

information—OK!

• Active lawyer review where lawyer requests access to juror

ESM—like driving down the street, getting out and asking juror

for permission to look inside juror’s house—Not OK!

• Passive lawyer review where juror becomes aware of identity

of viewer from ESM feature—like a neighbor recognizing the

lawyer’s car and telling juror that lawyer drove down the

street—OK!



• State Bar Opinions

• NYCLA Opinion 743

• Proper and ethical for lawyer to undertake pretrial search of prospective

juror’s ESM

• … provided “no contact or communication” with prospective juror and the

lawyer does not seek to “friend’ jurors, subscribe to Twitter accounts, send

tweets to jurors, or otherwise contact them

• New York City Bar Association Formal Opinion 2012-2

• Jurors may be monitored during the evidentiary and deliberation phases of

the trial

• Lawyer may not directly or indirectly attempt to “friend” or otherwise

communicate with jurors

• Prohibited communication includes juror becoming aware of lawyer’s efforts

to monitor



• State Bar Opinions

• Johnson v. McCullough, 306 S.W. 3d 551 (Mo. 2010)

• May monitor jurors during evidentiary or deliberation phases of trial

• Lawyer may visit publicly-available Twitter, Facebook or other ESM site of

juror, but may not “friend”, email, send tweets to jurors or otherwise

communicate with juror or act in a way by which juror becomes aware of

monitoring


Considerations for Social Media Analysis

• Timing is the primary determinate of whether a

social media analysis is appropriate for your case

• When will you learn the names of panel members?

• What information will you know (e.g., name, age, address)?

• Which members of trial team are available to conduct

search?

• How will you collect the information for use in jury selection?

• Recommend physical description if common last name


Contact Information Stephen E. Fox

Polsinelli PC

2501 N. Harwood, Suite 1900

Dallas, Texas 75201

(214) 661-5582

[email protected]

@StephenEFox (twitter)

http://www.linkedin.com/in/stephenefox

Emily McDonald, PhD

Bloom Strategic Consulting

4925 Greenville Avenue, Suite 100

Dallas, TX 75206

(972) 860-1680

[email protected]

Gayla Crain

Gray Reed & McGraw, P.C.

1601 Elm Street, Suite 4600

Dallas, TX 75201

(469) 320-6172

[email protected]

www.grayreed.com


mailto:[email protected]

http://www.linkedin.com/in/stephenefox





http://www.grayreed.com/

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