I stumbled across a trick a few years ago at a continuing legal education (CLE) class that summarized what we all do instinctively and I wanted to share it with you in this third installment of my voir dire tips blog series.
Here is the trick that was articulated for us all at the CLE: for each potential juror, you draw two small boxes at the bottom of the sheet of paper on which you or your associate is taking notes. The first box represents the juror’s attitude relative to your side. I use a “1” to “5” scale in which “1” indicates that the potential juror is favorable and “5” indicates that he or she is unfavorable. The second box represents the juror’s influence on or potential influence on others. Again, I use a “1” to “5” scale on which “1” indicates that the juror is or has the potential to be influential and “5” indicates that the juror is not or that I doubt they are likely to become influential. These are usually the only notes that I personally take during voir dire.
Once each juror is assigned attitude and influence numbers, your peremptory challenges become easier. Clearly, anybody with a “5” on the attitude scale and a “1” on the influence scale (“5”-“1”) is out. On closer calls, the rating system becomes much more useful. I would generally boot a “4”-“2” over a “5”-“4”. The “5”-“4” may have a more negative outlook toward my case, but the “4”-“2” – who I would also be concerned with because “4” indicates a negative stance toward my position – is much more influential and, thus, is the person who I would elect to get rid of.
If you are left looking at a pair of “3”-“3″s, review what each said with your note taker and, in the end, always trust your gut.