Scoring Jurors: The Do’s and Don’t’s
In light of Ken Broda-Bahm’s newest blog post regarding the proper use of statistics in mock trials (http://www.persuasivelitigator.com/2012/01/dont-be-entranced-by-statistical-claims-from-mock-trial-research.html) as well as a rising need for faster jury selection, I thought I would touch briefly on a related topic of whether to score jurors during voir dire and how that scoring can either hurt or help you.
There are a few models of scoring methods being passed around the community and I often get the question, are they effective? The answer is yes and no. Firstly, let’s talk about what these methods entail. If you are able to get a jury questionnaire, you can score the answers on a scale of, say, 1-5 regarding how positive or negative the statement is for your side. Then add up all the scores and you have an overall score for that juror. This score can be altered if you have enough time to ask the juror additional questions during voir dire. If you are unable to get a jury questionnaire, then you can simply score the juror’s answers on the spot as they speak.
There are many positives to this approach. With such limited voir dire time, it’s almost impossible to do a great job at jury selection. There simply is not enough time to talk to everyone. Scoring gives you a quick overall idea of where the jurors stand and may give you an idea of which jurors are the most likely to be harmful to your case so that you can focus your time in questioning them. Secondly, presenting this method to a judge may, ironically, end up giving you an argument for more voir dire time as well as allowing a jury questionnaire! Stress to the judge that if you are able to get out a jury questionnaire, you can score the answers ahead of time which will allow you to conduct a much more streamlined voir dire process as you can bypass many repetitive questions and get to the jurors you really need to talk to. Once you get to trial and the judge is asking how much time you need for voir dire, ask that he/she allow you to continue as long as you are asking useful questions and not promoting your case but that the moment you slip into advocacy, he/she can cut you off. Only suggest this if you are skilled enough to conduct voir dire solely for the purpose of gathering information. This will allow you to have a jury questionnaire as well as time with the jurors.
My caution with using scoring techniques is that scores do not tell the whole story. A stealth juror may say one thing on paper and be thinking something completely different. You may think you don’t need to question that juror and use your time on other jurors with red flags whereas if you were to take some time to talk to the stealth juror, you may notice differences in his/her body language when asking different questions which would indicate untruthfulness. Further, anything on paper can be taken differently than if you hear a juror’s tone of voice and observe their body language as they say the same statement. So, my overall suggestion is to take everything in stride. Do not use scoring as your main voir dire method. Use it to argue for the use of jury questionnaires and take the scores as one piece of information amongst many which will guide you in the jury selection process.