Legal Updates
Effective Voir Dire In Employment Cases
Voir dire – the preliminary examination of prospective jurors to determine their qualification and suitability to serve as jurors – plays a critical role in trial strategy. The goal of voir dire is to identify potential jurors who may have experiences and biases harmful to the client’s case, and to strike those jurors from the jury pool, to the extent permitted by the court.
Voir dire is especially important in employment cases, as potential jurors often have strong attitudes about the employee-employer relationship, formulated from “on the job” experiences.
Background
In federal court, jury selection is largely within the ambit of the trial judge. Over the past five years, however, the state courts of Massachusetts have allowed counsel to conduct “panel” voir dire, i.e., to ask questions directly to groups of potential jurors. The court generally approves questions that: (i) elicit pertinent preconceptions or biases; (ii) seek factual information about prospective jurors’ background and experience related to the issues expected to arise in the case; and (iii) inquire about prospective jurors’ willingness and ability to accept and apply pertinent legal principles.
Using this framework, employment lawyers can often discover potential jurors’ negative and/or biased beliefs and attitudes that are likely to affect their case.
Jury Empanelment
Massachusetts state courts also implement their own methods for eliminating unqualified jurors. The trial judge typically reads to the jury pool a short description of what the case is about, and introduces counsel (and sometimes the parties themselves) to the jurors. Individuals who have personal relationships with trial counsel and/or the parties are dismissed from the jury pool.
Prospective jurors also are required to complete a “juror questionnaire,” which requests certain biographical information – place of residence, educational background and occupation, and so forth. Individuals who claim that jury service would constitute an “undue hardship” for them are interviewed privately at sidebar. If the Court determines that no such hardship would result, the person remains in the pool of potential jurors.
The trial judge then asks the jury pool questions intended to establish whether they could remain unbiased in deciding the particular case at bar. Potential jurors are allowed to come forward with reasons why they believe they could not do so. Sometimes, the very nature of the case requires disqualification. For example, a person who was recently fired from his or her job may not be an appropriate jury member for a wrongful-termination case.
Practitioners long believed that courts’ own efforts in jury selection were insufficient. Accordingly, effective February 2, 2015, Massachusetts became the 40th state to enact legislation permitting counsel to conduct panel voir dire – an oral examination of prospective jurors.
Panel Voir Dire
Panel voir dire provides counsel with the opportunity to engage in a back-and forth conversation with the prospective jury members. Counsel should use this opportunity not only to de-select “bad” jurors, but to create a good first impression and develop a rapport with the jury. Voir dire also serves as an opportunity to lay the groundwork for case themes and gather intelligence on what case themes resonate with potential jurors.
Panel voir dire should be an open, honest conversation with the jury pool in which the potential jurors feel comfortable sharing their views. Questions should be designed to elicit perspectives that counsel expects to be relevant to how jurors will interpret important case facts.
Panel voir dire, however, has its limits. For instance, counsel is not allowed to elicit a prospective juror’s political views or religious beliefs, nor can counsel inquire about potential jurors’ prior jury service. Counsel is similarly not allowed to obtain a verdict “commitment” based on a posited set of facts (whether real or hypothetical).
Identifying Employer-Employee Biases
In employment litigation, it is important for counsel to identify potential biases germane to the workplace. Some potential jurors possess a “pro-plaintiff” or “anti-corporation” mentality, while others are more predisposed to be sympathetic to employers.
Sample areas of inquiry that may help to illuminate a prospective juror’s learnings include the following:
* Whether a company that is sued should have to prove it has done nothing wrong – i.e., whether a potential juror would attempt to reverse the burden of proof at trial;
* General attitude toward corporations, and whether the individual can give a corporation a fair trial;
* Beliefs about the importance of employees to their employer;
* Attitudes regarding employers and employee rights;
* Whether an employer has the right to terminate an at-will employee for any reason;
* Whether an employee who goes to the trouble of filing suit “must” have a valid case; and
* Beliefs about the amounts of jury awards (too high, not high enough).
These topics may reveal inclinations about how potential jurors view employment laws – are they seen as offering necessary protections or as serving as an impediment to a smoothly operating workplace? Similarly, questions about employee terminations may expose negative feelings about corporate decisions.
Personal Experiences
Individuals derive much of their identities from their jobs. Changes in job status can be as stressful as a divorce or the loss of a close family member. Potential jurors come to the table with their own personal employment experiences, as well as their observations of how friends and family have been treated in the workplace. Some jurors readily identify with a plaintiff’s situation, while others are highly skeptical. Prospective jurors often hold employers to very high standards and look to hold employers responsible when they have failed to meet those standards.
Litigation consultants have found that jurors deliberating in employment cases spend significant time discussing personal experiences, rather than the actual evidence presented, and, in fact, may disregard trial evidence in favor of their own workplace experiences. Counsel may be able to elicit such tendencies by asking prospective jurors questions such as the following:
* Have you or someone close to you ever made a formal complaint at work?
* Has a subordinate ever complained to you about his or her working conditions?
* Do you think companies should exhaust all possible ways of coaching underperforming employees before letting them go?
* Have you or someone close to you ever been treated unfairly at work?
* Do you feel that employees bear ultimate responsibility for their workplace conduct?
* Have you ever provided a performance review that a subordinate claimed was not deserved?
These questions are intended to provoke thoughtful discussion among the jury pool, with as many individuals as possible chiming in about their own personal experiences. Depending on how they respond, counsel should get a good idea of which prospective jurors are inclined to respect management’s prerogatives versus those who seem to have an axe to grind.
Current Events
Today’s jurors are inundated with news, whether it be from broadcast networks, streaming services or internet blogs. Employment lawyers may want to inquire about potential jurors’ opinions concerning relevant current events, such as the “#me too” movement and the college admissions scandal. From such questions, counsel may be able to gather insight into possible jurors’ feelings about issues such as corporate misconduct and how society treats socially and economically advantaged individuals.
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Jury selection is an inexact science, and it is impossible to predict with any certainty how a group of strangers will respond to the evidence presented through a trial. Still, voir dire, and especially panel voir dire, serves an important role in putting a client in the best possible position to prevail in a winnable employment case. The process requires planning and thoughtful execution. It should not be taken lightly.
