Voir Dire and Cause Challenges
Some lawyers will say that voir dire is one of, if not the most, important segments of your jury trial. I have noticed however that some attorneys seem to take voir dire for granted, spending little time in voir dire or seemingly unconcerned with the voir dire process. I have to agree with those attorneys who emphasize the importance of the voir dire practice. You can put on the best plaintiff’s case imaginable and end up with a defense verdict if you have the wrong jurors deciding the outcome of your case. Remember that even one bad juror can defeat your case, especially if that bad juror is a leader with the ability to persuade other jurors to follow his or her lead. To that end we should be familiar with the rules governing voir dire practice as well as techniques we can employ for purposes of empaneling a favorable jury. Here I will discuss the rules as defined by Nevada statute and case law with respect to voir dire and cause challenges.
Prior to jury examination the court will issue a jury questionnaire to all jurors. This questionnaire contains basic information regarding your jurors. This information is insufficient in and of itself for the practitioner to conduct voir dire but it at least is a good starting point for getting familiar with your potential jurors. Remember that the jurors will have already received a handbook which explains some of the basic information about the trial process. Moreover the jurors go through an orientation process prior to voir dire which educates them on the trial process. Thus when conducting voir dire keep this in mind and make sure your representations, as counsel, are consistent with information they have received in their handbook and/or orientation. If your information is different from the information the jurors just received then your jurors will likely question take this from your credibility.
Know that you are permitted to do some pretrial investigation. To that end you can hire a jury consultant who can advise you as to what juror characteristics are good or bad for your case. This will aid you in the selection process. You can and should of course conduct focus groups which will also give you a lot of this information. You can also investigate potential jurors. However be careful here. You cannot have any pretrial contact with these potential jurors nor can you have direct or indirect contact or communication with their friends, employers, family and the like. Thus be careful to avoid any pretrial contact with jurors. Fortunately, post-trial you have an opportunity and right to communicate with your jurors. This is of course assuming the jurors acquiesce to your communications regarding their verdict. Always talk to your jurors following trial. Find out what was and was not important to their decision making process. This is how we become better trial lawyers. Ask for their honest feedback and criticism.
In Nevada, the rules provide that the judge will first conduct the examination of the jurors in voir dire. The judge then shall permit supplemental examination by counsel as he or she deems proper. Thus, Nevada law provides a significant amount of deference to the trial judge as to the scope of voir dire examination by plaintiff and defense counsel. That being said the judge cannot prohibit attorney-conducted voir dire in its entirety. The Whitlock v. Salmon, 104 Nev. 24, 752 P.2d 210 (1988) case provides that a complete denial of the right of counsel to conduct voir dire would not be construed as a reasonable restriction. A complete denial of counsels ability to conduct voir dire would thus constitute reversible error. However be aware that you need to be prepared when you conduct your voir dire. The Whitlock case goes on to state that the court need not tolerate “desultory excursions” of attorneys who show little regard for judicial economy. Thus you need to have a clear purpose when conducting your examination. You may also want to file pre-trial motions seeking to enlarge the frame of voir dire questioning. Make a record of any significant limitation placed on voir dire as a violation of due process. In this way you create a record for appeal.
Remember that you, as counsel, will have four peremptory challenges and unlimited for cause challenges. The voir dire examination process can be handled in a few different ways. The common method is the “Arizona” method. Using the Arizona method all 19 or so jurors selected for examination are examined at the same time. After the examination both plaintiff and defendant can exercise their respective four peremptory challenges. Each side has one more peremptory challenge that can then be exercised on the alternate juror. One of the major benefits of this Arizona method is that the jurors are not present when challenged by counsel. As a result, the remaining jurors have no knowledge as to which attorney removed the excused jurors.
The examination procedure differs a bit with each court. That being said the general process is for the judge to begin by asking the jurors basic questions concerning the jurors experience with the case, parties, and attorneys. In this way the judge can see if any jurors should be excluded on the basis of having a relationship which might improperly influence him or her. The judge may request that counsel introduce the members of the courtroom including the names of staff and their relative duties. It is best to know if this will happen in advance of trial so that you can be prepared to make this introduction if need be. After the judge conducts an initial voir dire examination, plaintiff’s counsel will typically be permitted to ask general questions of the panel followed by specific questions to individual jurors. Following plaintiff’s voir dire examination defense counsel will be free to begin its questioning process of the jurors.
For cause challenges will be had before peremptory challenges. The test for weather a juror should be removed for cause can be found in Weber v. State, 21 Nev 554, 580, 119 P.3d 107, 15 (2005). Therein the court cited to the earlier decision of Leonard v. State, 117 Nev. 53, 67, 17 P.3d 397, 406 (2001) wherein the court stated that a juror should be removed if the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The trial judge is granted broad authority in deciding whether to remove a prospective juror for cause. NRS 16.050 specifically lists grounds sufficient for a challenge for cause. Estes v. Richardson, 6 Nev. 128, 130, 1870 Nev. (1870) holds that the court can overrule any challenge for cause which counsel has made in only general terms. Thus, if possible, as counsel, state one of the 7 explicitly defined areas for cause challenges found in NRS 16.050.
NRS 16.050 defines this list of those individuals who simply are not competent to perform services as a juror. The competency requirements are found in NRS 16.050(1)(a). Beyond that, the grounds relate to any bias the juror may have in the litigation. Specifically, whether the juror has any special relationship with a party to the action such as debtor and creditor, guardian and ward, employer and clerk or similar other relationship. The statute defines individuals who have an interest in the result of the litigation to be biased and thus subject to a for cause challenge. The rules you really need to keep in mind include that of NRS 16.050 (6) which states that an individual who has formed and expressed an unqualified opinion or belief as to the merits of the action is subject to a for cause challenge. Likewise, NRS 16.050 (7) states that an individual who evinces enmity or bias against a party is also subject to a for cause dismissal. Unfortunately the judge can then deny a for cause challenge based on either of the last two mentioned provisions if the judge finds that the juror can set aside any previously held opinions for the purpose of rendering a fair verdict or that the juror can overcome his feelings of bias or sympathy and render a proper verdict. Opposing counsel or the judge thus can attempt to rehabilitee a juror who expresses such bias in response to your examination. If the judge feels the juror is rehabilitated then your for cause challenge will be denied.
To defeat this rehabilitation of clearly biased jurors be sure to really lock the juror into a defined position. Thus don’t stop after the first response from the juror indicating his or her bias in these regards. Follow the rabbit hole of questioning all the way to the bottom. The more you get your juror to commit to his position the more difficult it will be for opposing counsel or the judge to rehabilitate the juror who expresses such bias.