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Selecting a Jury of Cynics, Believers, and Others

By Robert A. Clifford

To help me better understand how to select—or deselect—jurors, I commissioned a national study in September 2006, “Public Perceptions of the Justice System.” The study found that, based upon their attitudes toward lawsuits, corporations, health care, and personal responsibility, most people fall into four general groups: cynics, believers, pro-business, and underdogs. The study concluded that “We are less a nation divided than a nation conflicted. We agree on far more than we disagree, but we are not always internally consistent in our beliefs.”

For example, many people believe in corporate responsibility at the same time they believe in personal responsibility. Americans feel the number of medical malpractice lawsuits is excessive at the same time they believe that these same lawsuits are necessary to prevent medical mistakes.

Lawyers must realize that jurors are made up of complex sets of beliefs. Each juror brings to the courtroom a set of conflicting ideas and a belief system that is made from the personal and professional experiences in his or her own life. The challenge at trial is to sort out these conflicting beliefs and find jurors who will understand the facts of your case and embrace your position, while at the same time holding true to their vision of reality. It is up to you as a lawyer to develop credibility with each individual as well as with the group as a whole and then communicate facts that allow the individual jurors to reconcile their differences in accordance with your view of the case.

The largest of the four major groups of Americans found by the study was the cynics. They comprise about 43 percent of the adult population. Cynics are distinguished by their general lack of confidence in nearly every American institution—from the Congress to hospitals, corporate America to juries. They are neither plaintiff- nor defense-oriented and have an allegiance to no one. Their demographic political affiliation mirrors that of the population, and they generally fall in the middle class in terms of occupation, education, home ownership, and income as well as age, gender, and ethnicity. They are likely to play a facilitative role in a jury. I tend to label them as people who view their cups as being half empty.

The believers are the second largest group, accounting for 27 percent of the population. Believers are more optimistic than cynics and are less critical of American institutions and individuals. Their cups are half full. They feel that people do not always have control over what happens to them and that the system can provide redress. They feel that most people who sue have legitimate grievances. Believers, although open to many viewpoints, tend to align themselves with Democrats and with the victim in a lawsuit. They are often younger and single and have no children, compared with the general population. They have at least some college education but are in the lower- to middle-income brackets. On a jury, they tend to be more passive and will not try to influence others.

Cynics and believers account for the bulk of the American population, but it is the other two groups on the extreme ends that attorneys either seek or shun. The first group can be labeled pro-business, and it accounts for 16 percent of the population. Pro-business people believe in personal responsibility and are defenders of corporate America. They are the most educated segment and are concentrated in the upper class of American socioeconomic life. They are predominantly white and male. Often, they feel strongly that there are too many frivolous lawsuits and that jury awards are excessive. They identify themselves as Republicans and conservative, as a rule. They are informed, educated, and assertive on a jury.

The group on the opposite end of the spectrum is called the underdogs. It is the smallest group, comprising just 14 percent of the population. Underdogs place their faith in individuals rather than institutions. They are distrustful of corporations, and they feel that lawsuits are needed to protect people. Underdogs generally are the least educated group and fall in the lowest socioeconomic class, yet they also are outspoken and attempt to be influential.

Although the pro-business and underdog groups represent opposite ends of the spectrum, it is not always easy to distinguish their members through typical voir dire questions. For example, the vast majority of both segments believe that too many so-called frivolous lawsuits occur today, that most doctors do the best they can for their patients, and that people are too quick to blame others for things that happen to them. It can be difficult to discern in voir dire who will be open to your theme of the case versus who will allow their internalized values to suddenly put up a wall. The survey indicated that the underdogs and the pro-business groups share certain demographic and attitudinal characteristics, but it is the characteristics in which they differ that must be closely examined.

Here is how to distinguish those who will favor your client from those who will likely vote against you. The underdog generally will agree with the following statements:

  • The ability of citizens to bring lawsuits has made this a safer society.
  • Juries do a good job of determining the outcomes of lawsuits and assessing damages in civil cases.
  • Most corporations are more interested in making profits than in making a safer society.
  • More laws are necessary to regulate corporate behavior.
  • The federal government is more interested in protecting corporations than in protecting individuals.
  • Hospitals today are more interested in making money than in healing patients.

Generally, pro-business people will agree with the following statements if asked at voir dire:

  • Juries today far too often award large amounts of money in civil cases.
  • Generally, large corporations treat their employees well.
  • Patients need to take more responsibility for their own health care.
  • Most people are in control of what happens to them.

Many pro-business people would disagree with the following statements:

  • Most corporations are more interested in making profits than safer products.
  • More laws are needed to regulate corporate behavior.
  • The federal government is more interested in protecting corporations than in protecting individuals.
  • Hospitals today are more interested in making money than in healing patients.

Obviously, in voir dire, one must ask open-ended questions that elicit answers on these issues. A word of caution: Holding a single belief does not necessarily place a person in one segment or another. People display a complex set of beliefs with many ideas overlapping from one group or another. What the lawyer is really trying to do in jury selection is to identify and have stricken the prospective juror who will most likely be biased.

Ultimately, you must try to seat not advocates, but fair jurors. I try to look each person straight in the eye to see if that person stares straight back at me with the promise of maintaining fairness and objectivity throughout the process. That means that I try to avoid the cynic, the distrustful one who generally cannot be trusted. However, given that the cynic represents the greatest segment of the adult population, it is not an easy task to rid a jury of all of them with just a few peremptory challenges. The good news is that they generally are not the leaders, but facilitators in the process. Cynics tend to look at all parties with a critical eye so that everyone comes into the courtroom on an even, although perhaps lowered, playing field.

Lawyers must keep in mind that it is not going to be possible to change a person’s mind or beliefs in a few minutes. The voir dire is not meant for that. From the moment the lawyers and their clients enter the courtroom, the potential jurors are sizing everyone up. They are scrutinizing every action to see where the lawyers and clients fit into their complex set of beliefs. Is the plaintiff or her lawyer one who is bringing a so-called frivolous lawsuit, thereby reinforcing their skepticism as to why they have to be called for jury duty to begin with? Or do their sociological antennae detect that the defense is being disingenuous or dodging responsibility?

If a case is cut and dried, it probably will settle prior to a trial. Generally, the cases with a lot of gray go to trial. Being open and honest about the weaknesses of one’s case allows jurors to set aside their skepticism and come to a reasonable conclusion that demonstrates not only what the parties’ best interests are, but also the civil justice system’s. It is a respect for the process that must remain intact throughout the trial.

Although the adage that you can make a first impression only once is true, I don’t believe that jurors make snap judgments on the finality of the case. Credibility is built over the course of the trial. It is built from your questions and sincerity in seeking a just result. It is built with your opening statement and not making empty promises. It is built in the witnesses you bring. It is built in closing argument. Most importantly, it is based on communicating with the jury. You must convey to the jurors a reason to trust you and your evidence. It all comes down to identifying the belief systems of each juror and then spending the time during trial communicating to each one the essential facts that allow them to reconcile their complicated, conflicting beliefs with a finding in favor of your client.

If I leave you with one thought, it is that if you do not know how people think, how can you make them listen? Lawyers must understand how people think and how they come to decisions. In today’s world, people’s views are not black and white. There is a lot of gray. Sorting through these various shades of opinions is a difficult task, particularly under the constraints of a trial, but it is a job that good lawyers can successfully accomplish if they stand back and study the situation and, above all, trust their instincts.

Keywords: Trial procedure, jury selection, voir dire

Robert A. Clifford, the Illinois delegate to the ABA House of Delegates and chair of the ABA Strategic Communications Committee, is a senior partner at Clifford Law Offices, Chicago, Illinois.

This article was excerpted from a longer one that appeared in Litigation, Volume 35, Number 2, Winter 2009 [PDF] at page 18.


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