by: Dr. Kevin Boully
Everyone is talking about juror hardship. Prospective jurors are seeking relief from jury duty at high rates, citing financial hardship, and Courts in many jurisdictions are handing out hardships like candy. Indeed, Americans are suffering real effects of economic recession. Consumer spending is down 53% from a year ago and unemployment is at 8.9%, up 3.9% in the last year. There are over 6 million more unemployed Americans than just one year ago. Prospective jurors are as worried as ever about missing work and losing their jobs, or missing potential job opportunities while sitting in the jury box. Reluctant jurors seek recusals with desperation in their voices and copies of paystubs and high monthly bills in hand.[1]
So, how does increasing juror hardship affect your jury selection and trial strategy?
Jurors who pursue hardship excusals are different from those who do not. For instance, our experience and survey research conducted last month show significantly stronger anti-corporate attitudes amongst jurors for whom a two-week trial would cause financial hardship. They also show differing initial reactions to common disputes, including a typical employment action:
Obviously, you cannot prevent the Court from removing jurors with actual hardships, and you cannot risk overtly fighting to keep jurors who clearly do not want to serve. So, can your approach to juror hardship result in advantage at trial?[2]
First, identify your high risk juror profile with particular concern for how hardship may influence that profile (e.g. many hardship jurors are higher risk for corporate defendants), then consider the following:
1) Evaluate the size of the jury pool. In a smaller pool, hardship excusals can become more valuable and harder to achieve, creating stricter initial criteria for juror removal. With a larger pool, those with hardship excuses may be released more leniently since there are plenty of jurors to replace them. If hardship jurors are high risk for your case, request a larger than normal pool so hardship will not be granted restrictively.
2) Request a supplemental juror questionnaire. Use a questionnaire to learn about juror hardship while identifying and correlating high risk attitudes with potential hardship concerns. This gives you greater power in assessing whether a relaxed approach to hardship may be more beneficial to your case, and you can adjust your hardship strategy accordingly.
3) Conduct instructive voir dire. Some of your “good” jurors will have debatable hardship excuses and you may choose to voir dire them in hopes of keeping them in the pool. Beyond asking careful and strategic questions that introduce reasons the juror should not be excused, consider pursuing a Court instruction that informs jurors that not all circumstances result in hardship excusals, and jurors should not hold it against any of the attorneys for doing their best to achieve an impartial jury panel.
4) Determine your flexibility. When making accommodations can alter prospective jurors’ ability to serve, be willing to streamline your case approach, adjust the court schedule (e.g. shorter days or creative calendars), or cater to juror needs. It may result in a substantially more favorable pool from which your jury is selected.
[1] Recently we saw a handful of prospective Federal jurors cite narrow margins between monthly income and expenses, including one who submitted an adding tape of the accounting to the Court.
[2] Obviously, different courts can have varying approaches to hardship, and many will leave little room for attorney input. However, others allow significant input and should be handled with advocacy in mind.
