In New Jersey, a plaintiff recently brought an auto personal injury case to trial. It was one of those scenarios where the damage to the occupants was greater than the damage to the vehicle, so the attorney trying the case properly wanted to know if any prospective jurors on the panel would have a hard time with that idea. Could a crash with minimal property damage could still be the cause of major injury, pain and suffering? The attorney wanted the court to explore this attitude through open-ended questions, and New Jersey law actually requires open-ended questions (at least three) as part of voir dire. The judge, however, denied the plaintiff's request, and instead relied on questions that boiled down to the binary, "Can you be fair?" After a four-day trial, the jury returned with a verdict that essentially paid the outstanding bills but included no damages for pain and suffering. The case, discussed in a recent New Jersey Bar Journal article, went up on appeal, and the New Jersey Bar Association weighed in with an Amicus Curiae brief supporting the plaintiff and arguing that a denial of open-ended questioning in this case constituted reversible error. "The use of open-ended questions in jury voir dire," the Association argued, "is critical to securing fair, unbiased and impartial decision-makers who are fundamental to our system of justice." The appeals court ultimately agreed with this argument and reversed and remanded for a new trial.
In this case, the legal reasons were based in New Jersey law, but the logical reasons for wanting open-ended questioning as the route to uncovering bias apply in all cases, whether the law requires these questions or not. It often surprises me, for example, that even when attorneys are relatively unconstrained in their own oral voir dire, they will too often gravitate to a leading style of questions that only call for "Yes/No" responses. A lawyer's professional orientation toward precision and control leads them to prefer their own language over anything the potential juror might say. But control and precision are tools for argument and for questioning. In voir dire, what is needed are tools to assess the panel's attitudes, and not to test their willingness to go along with whatever formulations the judge or the attorneys have constructed. In my view, voir dire should be dominated by open-ended questioning, and when the potential jurors are doing most of the talking, that is one sign of success. In this post, I'll look at some of the reasons why open-ended questioning ought to be the main tool, and I will share some thoughts on the best ways to ask open-ended questions.
The Case for Open-Ended Questioning (and the Problem with "C.Y.B.F.")
I use the short hand of "C.Y.B.F." to represent the common "Can You Be Fair?" style of questioning that most judges and many attorneys seem to gravitate toward. That style is more likely to yield agreement (based on the "social desirability" of what seems to be the right answer in a given context), and less likely to lead to accurate knowledge of a potential juror's true attitudes. As stated in Directive #4-07 from the New Jersey Supreme Court, "The purpose of [requiring the judge to ask open-ended questions] is to ensure that jurors verbalize their answers, so the court, attorneys and litigants can assess the jurors' attitudes and ascertain any possible bias or prejudice, not evident from a yes or no response, that might interfere with the ability of that juror to be fair and impartial."
When you want the potential juror to agree, give them a closed-ended formulation to agree with. But when you want to know what they really think, ask them in an open-ended fashion what they think. In the case that led to the appeal discussed above, the plaintiff's attorney would have wanted to ask, "What do you think about a collision where the car might be only minimally damaged, but the occupant is still significantly injured? Hearing about that possibility, what thoughts come to mind?" Asking the closed-ended question of whether it is possible, or whether they could be open to expert testimony on the subject might lead to agreement, but asking in an open-ended fashion might lead jurors to share their more honest feelings about the plausibility or the implausibility of that scenario.
Bottom line, closed-ended questions should be reserved for situations where you are trying to talk panelists into or out of a cause challenge. In all other situations where you want to actually learn more about what they think, ask an open-ended question.
Common Styles of Open-Ended Questions
Naturally, the specific open-ended questions you'll want to ask will vary by case. The New Jersey directive, for example, just mandates open-ended questions, with the particular questions being decided by the lawyers and the judges in each case. While your focus and goals will depend on the specific biases you're trying to uncover, there are some common phrases which are useful in encouraging your panelists to share:
- What do you think about...?
- What is your reaction to...?
- What is your opinion of...?
- What has your experience been with...?
- How would you react to...?
- Why do you think that...?
- When you hear about...what is your reaction?
- What are the first words that come to mind when we talk about...?
Those are common sense formulations, of course. But my experience is that most judges should be more open to those forms of questions, and most attorneys conducting voir dire should use them more often. Ultimately, I think the secret to good voir dire does not come down to the cleverly-phrased question, but comes down to just getting the jurors talking on the deep themes of the case.
That can sometimes be a challenge. If the jurors get the message that their role is just to sit there and say "Yes" or "No," then you are going to learn a lot less than you will if jurors understand that their role is to share what they really think. So one time that attorneys should do a bit of their own talking when they can is in the introduction to attorney-conducted voir dire. Talk about the goals of the process, let them know that the exercise is focused on them, and that there are no right or wrong answers. Consider sharing some self-disclosure of your own in order to cement the idea that this is a setting for sharing not just for agreeing.