Jury selection, also known as voir dire (Latin for “speak the truth), is the beginning of any jury trial and is the first time the parties address the jurors that will be hearing their case. There is a wealth of literature on the philosophy of voir dire and the importance of making a great first impression. An experienced trial attorney conducting voir dire is essential, as many believe you can lose a case with a subpar jury selection. We will only be addressing the basics of jury selection for Virginia civil cases in this article. Still, the attorney conducting voir dire should be well versed in the nuances of what questions to ask based on the facts of the case.
Every party to a lawsuit is legally entitled to have the case decided by a fair and impartial jury. The purpose of jury selection is to root out potential jurors with conflicts of interest or biases against any parties involved and strike them from being jurors. During voir dire, parties can move the Court to strike a juror for cause and also have the opportunity to strike additional jurors they believe will be harmful to their case.
Voir dire is the only time the jurors interact with the trial attorneys during a trial. It is an opportunity for the attorneys to ask jurors any questions that may be relevant to the issues in the case. Attorneys want to get a sense of who the jurors are and their philosophies on life and see if any potential jurors have already made up their minds on the issues in the case before the trial even starts. This is done by asking jurors broad questions about their life experiences and opinions.
In personal injury cases, it is important to focus on the injuries claimed and the cause of the injuries with the jurors. For instance, if the subject of the lawsuit is that someone broke a femur in a car crash, you want to explore if any jurors were also involved in car crashes or have friends or family that have been involved in a car crash. Most jurors would have been or know a loved one who has been in a car crash in the past. This allows the attorney to address each juror individually, discussing their experiences with car crashes and gather as much information as possible to try to decipher any biases they might have. A similar line of questioning would apply to anyone who might have had or know someone who had a femur injury.
After each party conducts voir dire, the parties will have an opportunity to strike jurors for cause and have additional peremptory strikes of their own.
Striking for Cause
Under Virginia Code § 8.01-358, every party to a lawsuit has a right to examine under oath any person who is called as a juror to ascertain any biases or prejudices that exist. If the Court determines that the juror does not appear indifferent, that juror shall be removed from the potential jurors and replaced with another juror—this is striking a juror for cause. The Court, on its own accord, may strike a juror for cause, or a party wishing to strike a juror for cause may make a motion to do so with the Court. This motion is usually made at a sidebar where the jurors cannot hear the motion being made to the judge. If the presiding judge agrees that a potential juror cannot be impartial, the juror is struck for cause.
In every trial, attorneys must weed out any inherent biases based on race, gender, sex, or religion. Any juror with a bias against a party based on these characteristics would be struck for cause. Additionally, jurors may have a bias toward certain issues presented to them. For example, in a personal injury case, some jurors might believe anyone filing a lawsuit is greedy and looking for a payout or are unwilling to render a monetary verdict based on non-monetary claims, i.e., pain & suffering. Any preconceived biases a juror might have that can affect the case must be flushed out in order to strike a juror for cause. If a juror cannot be impartial when hearing evidence or deciding the merits of the case based on preconceived ideologies, they must be struck for cause.
After jurors are struck for cause, the jury panel in a civil case consists of thirteen potential jurors. According to Virginia Code § 8.01-359, the plaintiff and defendant attorneys can each strike three additional jurors. Parties will also want to strike jurors they believe will be harmful to their case, but there was not enough information to strike them for cause. If there are multiple plaintiffs or defendants, the plaintiffs must share the three strikes among them, and the defendants must also share the three strikes. Once the parties make their strikes, the remaining seven jurors will be sworn in as the jurors in the case, and opening statements will follow.
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