Dateline: August, 2021, Issue 2

How helpful is expanded voir dire in civil cases?

The law regarding jury selection in civil cases varies widely across trials, venues, judges and court systems. Voir dire can be fast or slow, done by attorneys and/or a judge, and focus on biographic, experiential and/or attitudinal information.

Three types of voir dire are common in civil cases:

Campbell and colleagues (2020) examined the effect of basic, minimal and expanded voir dire on 2,041 mock jurors across three different civil cases: (1) insurance bad faith car accident, (2) tort claim asserting a doctor failed to diagnose an en utero defect, and (3) medical malpractice involving a failure to diagnose in an emergency room. Mock jurors read a detailed summary of their assigned case. Each summary included a factual background, opening statements, direct questioning of witnesses and closing statements. All mock jurors then indicated the verdict they favored and what financial damages, if any, they would award to the plaintiff.

Prior to reading the case summary, all mock jurors answered the basic (biographic) voir dire questions. Two-thirds of the mock jurors additionally answered minimal voir dire questions (about legal system experiences and general impartiality). Half of this latter group also answered expanded voir dire questions (about attitudes toward trial participants, litigation and case-specific issues). After stating a verdict and damages (if any), mock jurors who had not previously answered minimal or expanded voir dire questions then answered those questions.

Only expanded voir dire questions were helpful for identifying biased mock jurors and predicting verdicts. Basic (biographic) voir dire questions were unable to identify mock jurors with bias and no question was able to predict mock jurors' liability verdicts and damage awards. Minimal voir dire questions (about generic legal experiences and self-reported impartiality) identified only a tiny percentage (1.4%) of mock jurors who acknowledged biases that might prevent them from being completely fair and impartial, with no question predictive of mock jurors' verdicts or damage awards. By contrast, expanded voir dire questions identified many more mock jurors with potential biases and many of the questions (though not all) predicted mock jurors' verdicts and damage awards (explaining 28% of the variance in liability and 15% of the variance in damage awards).

Many mock jurors (42%) had responses to expanded voir dire questions that revealed they might have trouble following the law. These mock jurors would not have been identified based only on the minimal voir dire. These mock jurors include:

The following expanded voir dire questions predicted mock jurors' liability verdicts, with each question independently mattering to the prediction of liability:

The following expanded voir dire questions predicted mock jurors' damage awards, with each question independently mattering to the prediction of damages:

Noteworthy for predicting verdicts, mock jurors opposed to noneconomic damages were more than twice as likely also to offer a verdict favoring the defendant on liability, even though views relating to the appropriateness of noneconomic damages are technically unrelated on legal grounds to verdicts of liability. Further, minimal voir dire resulted in 7% fewer liability verdicts and 9% lower damage awards as compared to expanded voir dire (assuming plaintiff and defense attorneys strike or challenge jurors with problematic views uncovered by the expanded voir dire).

Noteworthy for detecting bias, mock jurors were not aware their views were in any way related to their decisions. At the end of the research, mock jurors' "bias awareness" was assessed, asking if their personal views expressed to voir dire questions were in any way related to their liability verdicts and damage awards. Regardless of the case provided, voir dire questions answered, or views expressed, mock jurors claimed that no link existed between their views and the judgments they had rendered.

The researchers conclude that a significant number of jurors have biases that affect verdicts in civil cases, that jurors are unable to identify or self-report their own biases, that minimal voir dire is not useful for identifying juror bias or predicting verdicts, and that only the attitudinal questions in expanded voir dire can root out bias and predict case outcomes.

Source Campbell, J., Salerno, J., Phalen, H., Bean, S., Hans, V., Ross, L. & Spivack, D. (2020). An empirical examination of civil voir dire: Implications for meeting constitutional guarantees and suggested best practices. University of Denver Legal Studies Research Paper No. 20-11.