In a pending battle of the Tech-Titans, Oracle is seeking $1 billion in damages in a copyright case on application programming, and Google is claiming a fair use defense. With those household names facing off, one would think that the case would warrant some additional time and process for voir dire -- a comprehensive juror questionnaire, perhaps, looking into the potential jurors' experiences and attitudes relating to the technologies in general and the companies in particular? That is certainly what the two parties thought, but efforts to present a joint motion for a supplemental juror questionnaire were met by a swift "no" from U.S. District Court Judge William Alsup. As reported in a recent article in Ars Technica, the judge complained that the proposed questionnaire included "so many vague questions" that "the loser on our eventual verdict will seek, if history is any guide, to impeach the verdict by investigating the jury to find some 'lie' or omission during voir dire." The article included a link to the questionnaire itself, and based on judge’s reaction, I was prepared for a document that was long, detailed, onerous, intrusive, and unfair. Instead, what I found was a surprisingly simple, reasonable, and relevant questionnaire. There were no questions that could be considered violative of juror privacy, almost no questions on opinion at all, and no indications whatsoever of possible traps for later impeachment of the verdict.
In short, the Oracle and Google teams seem to have done everything right. They kept it brief: The questionnaire is only two pages long. They kept it on point: All of the questions are either boilerplate demographics or focus on experience and knowledge in the relevant technology field. And they made it a joint request rather than fighting over different versions. The fact that the judge still gave it a definitive and pretty harsh “no” is a reminder of how far we need to come in gaining acceptance for more reasonable inquiry into the views of the potential jury. I have written before of the many reasons a supplemental questionnaire is likely to help. It improves efficiency over individual oral voir dire, it leads to greater honesty in the responses, and it ensures that both sides have equal access to the data. Given the stakes, and given the need to effectively explore cause challenges and to provide a sound basis for exercising peremptory strikes, a supplemental juror questionnaire needs to be considered a common-sense tool, not an exotic or threatening strategy. In this post, I'll share some thoughts on a call to arms to defend and extend the juror questionnaire.
In some venues and before some judges, getting a supplemental juror questionnaire is no problem. In others, however, it is a nonstarter. I group the take-aways from the most recent example of the latter in the Oracle v. Google case into three categories.
It is possible that trial lawyers and litigation consultants who realize the benefits of a good questionnaire haven’t done a good job as advocates. At least to many judges, and to the broader public, we haven't necessarily made a good case for the need to gather reasonable information from the panel prior to jury selection. More broadly, we haven't really made a good case for the peremptory challenge, and the corresponding need for it to be based on something other than stereotype or gut suspicion. The American Society of Trial Consultants Foundation has announced a new initiative to study the effects of peremptory strikes and effective voir die on the fairness of the resulting panel. As a board member in the Foundation, and one of the initiators of the project, I am hopeful that this research, and other projects like it, can help us continue to refine our knowledge of the usefulness of being able to exercise strikes based on good information.
Even as the Oracle v. Google judge shot it down, the most frequent reason that supplemental juror questionnaires are not used is still the fact that they are not requested. Judges can be creatures of habit and tend to conduct voir dire the way they have conducted it in the past. On their own, judges are unlikely to think that it's necessary to use a questionnaire that goes beyond the court's standard questions. Among some attorneys, the request is routine, but it should be a common step to take for nearly all trial lawyers: Ask for a questionnaire, propose a reasonable and focused tool that still gets at the key attitudes that can serve as a basis for a cause or a peremptory challenge, and if possible make it a joint request. Even in the face of hostile judges, the solution is to keep asking until the expectations change.
How the parties ask for a questionnaire matters. Often it is a joint request. That makes sense and, in our experience, it makes the questionnaire far more likely to be accepted by the court. But the fact that it is a joint request shouldn’t prevent the parties from also including the reasons. As I have written before, there are very good reasons for using the questionnaire, and those reasons are backed by research. Drawing on these resources, the request for a questionnaire should be accompanied by a clear rationale for how the questionnaire makes for a selection process that is more fair. If you have a chance to argue in favor of one, use that opportunity, and develop reasons that go beyond "I want one" and speak to the unique needs of your case.
Now, none of these reasons likely would have convinced the Oracle v. Google judge. And in that case, there may be more going on than just the questionnaire itself. For example, both companies might have resources for researching potential jurors that extend beyond the public domain, so it is possible that what the judge really opposed is that fishing expedition, and not the survey itself. Indeed, the judge called for a show cause hearing on why the judge should not simply ban internet research on potential jurors. That seems overbroad to me -- after all, public information is public -- but that also means that there is all the more reason to embrace the transparency and common starting point that is fostered by a supplemental juror questionnaire.