Jury Research Institute

Voir Dire

Pretrial Preparation Techniques for an Effective Voir Dire

Persuaders, Participants, and Non-Participants

One very important judgment you need to make about each juror before beginning to exercise peremptory challenges is to determine how influential any given juror is likely to be during jury deliberations. Often, lawyers mistakenly look only for one potential foreperson. Research has revealed that in fact, there are three or four likely forepersons on the panel. Observations of hundreds of jury deliberations reveal that jurors display one of three levels of participation in the deliberation room.

Level 1: The "Persuaders." At one level are the "persuaders." These three or four individuals (roughly 25 percent of the group) make over 50 percent of the statements during deliberations. They are active leaders and coalition builders. They are relatively easy to spot on a jury panel if you are surveying the group for more than one leader. Men in their forties are most likely to be among this group, but it is by no means their exclusive province. Jurors who are active leaders and persuaders can be male or female. Prior jury service often gives them special credibility among other jurors, and an otherwise quieter juror will emerge as a leader. Previous experience managing or supervising people is also a clue that an individual may be a persuader. If you utilize a juror questionnaire (discussed below), you can directly ask potential jurors how often they find themselves in leadership roles. Most jurors are relatively accurate in their self-assessments.

Level 2: The "Participants." The second group of jurors includes the "participants." These jurors (usually about half of the panel) are very verbal, active, and responsive. In contrast to persuaders, who often offer statements of fact from the trial, participants are more likely to offer opinions. For example, a persuader might say, "Dr. Smith testified that the test results revealed the plaintiff had a serious depression," to which a participant might respond, "Well, in my opinion, he was a pretty unbelievable witness. I don’t trust head doctors." Participants generally do not build coalitions themselves, but actively support the leadership of persuaders.

Level 3: The "Non-participants." Finally, "non-participants," who make up the remaining three or four jurors, generally say very little. They remain passive and are clearly followers. They volunteer few if any comments, unless called upon by the group to speak, in which case they usually pass on the opportunity to speak or say, "I agree with what Joe said." They will follow the majority inclination.

Why It Matters. The importance of these distinctions is in recognizing where to focus jury challenges. Six peremptory challenges do not seem like a lot when looking at a group of 12. However, it would be a waste of a challenge to eliminate a non-participant in a civil case. Even if such a juror would reject your position, this is not the juror who could persuade others to agree. Instead, focus your challenges on the three or four jurors who are likely to be persuaders and who are likely to oppose your position. If you successfully eliminate them and the replacements are acceptable, you can then turn your focus to participants. Essentially, this step forces you to look at each individual juror as a group member. Having assessed the jurors’ experiences and background through the voir dire, you must now make one final assessment of jurors’ likely position within the group.