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general / Jury Practice

Conducting voir dire in civil trials

By Elizabeth R. Feffer and Cherisse H.A. Cleofe

The pleadings long-settled, and discovery now completed, it is now time for you to try your client's civil case before a jury. Code of Civil Procedure Section 124 provides that "the sittings of every court shall be public." This, of course, includes jury selection. The Trial Jury Selection and Management Act (CCP Sections 190 et seq.) sets forth the law regarding selection of jurors and formation of trial juries in all trial courts of the state. The act imposes limitations on voir dire, in order to "select a fair and impartial jury in civil jury trials." CCP Section 222.5.

The process of selecting a jury is called voir dire, from the Norman French term "to speak the truth." Voir dire serves several recognized purposes. The primary purpose of voir dire is to select a fair and impartial jury. Id.; Cal. Rules of Court, Rule 228. Another purpose is to assist counsel in the intelligent exercise of both peremptory challenges and challenges for cause. Id. It is not, however, the function of voir dire to "educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, or to indoctrinate the jury in matters of law." Rousseau v. West Coast House Movers, 256 Cal. App. 2d 878, 882 (1967).

The Court's Procedures: Ask the Trial Judge

So, how do you select a jury? When your case is set for trial, the court will typically schedule a pre-trial, trial readiness, trial management, final case status or issue conference prior to the actual trial date. The purpose of this court appearance is to make certain that the parties are ready to proceed on the first day of trial. In the Los Angeles County Superior Court, Local Rule 3.25 refers to the final trial preparation appearance as a final status conference. In Los Angeles, the final status conference, or FSC, is typically set no more than 10 days prior to the trial date. In the San Diego County Superior Court, Local Rule 2.1.15 says the trial readiness conference to establish the trial preparation requirements is generally scheduled four weeks before the trial date. Meanwhile, in Solano County, Local Rule 4.9 established that the trial management conference may be scheduled four to six weeks prior to trial. In Humboldt County, however, unless otherwise ordered, Local Rule 2.5 requires a jury trial conference 30 minutes before trial to determine the trial procedures. During the jury trial conference, Humboldt County Local Rule 2.5 permits counsel to "submit a list of voir dire questions to be asked by the judge, including references to the Standards of Judicial Administration." The Standards of Judicial Administration, Standard 3.25(b), refers to a "pre-voir dire conference." This is the opportunity for the court to advise counsel of the questions or areas to be inquired into during the examination and voir dire procedure.

Trial counsel should review the local rules of the Superior Court where the trial is to be held, as well as any courtroom procedures of the trial judge, as they will direct trial counsel when to file important trial-related documents such as exhibit and witness lists, jury instruction requests, and the proposed short statement of the case.

The final status conference is also counsel's opportunity to ask the trial judge how that particular court conducts jury selection. In Los Angeles, Local Rule 3.448 says the trial court may determine several issues pertaining to voir dire examination, as well as the number of alternate jurors, and the determination of sides and allocation of peremptory challenges. In Modoc County, pursuant to Local Rule 4.07(B), in a trial with more than two sides, "the trial judge will require the side with the greater number of challenges to exercise every second challenge." Counsel may stipulate to a jury of fewer than 12 jurors. CCP Section 220. Los Angeles Local Rule 3.70 pertains to the number of alternates, which in turn is based upon the estimated length of trial. At your pretrial conference, ask the trial judge how many alternate jurors will be selected.

As Los Angeles Local Rule 3.71 acknowledges, "There is no uniform method of seating prospective jurors." The authors suggest that you ask the trial judge directly, at the final status conference, how the court conducts jury selection.

At the final status conference, counsel should also ask whether the court will impose any time limits on questioning. Most judges ask the attorneys how much time they anticipate needing for their examination of the prospective jurors. The trial judge may not impose unreasonable or arbitrary time limits on counsels' examination of prospective jurors. CCP Section 222.5. The court may, however, impose reasonable time limits. People v. Avila, 38 Cal. 4th 491, 533-36 (2006). The court is to permit attorneys to pose their questions to the prospective jurors without requiring prior submission of the questions unless a particular counsel engages in improper questioning." Id. Code of Civil Procedure Section 222.5 defines "improper questioning," as does the Standards of Judicial Administration, Standard 3.25(f).

The final status conference is also counsel's opportunity to discuss utilizing a questionnaire, or giving a brief "mini opening." See CCP Section 222.5; Cal. Rules of Court, Rule 2.1034. The purpose of such a statement is to generate interest in the case, and to place the voir dire questions into context. When allowing counsel to give a "mini opening," trial judges often give a strict time limit per side.

Lawyers who want the court to use a questionnaire should follow the local rules and the court's procedures regarding submitting a proposed questionnaire to the court in advance of the final status conference. Many judges require not only advance submission of a proposed questionnaire, but also that counsel meet and confer on a proposed questionnaire.

The content of a questionnaire is within the court's discretion. A court should not arbitrarily or unreasonably refuse to submit a reasonable written questionnaire to the prospective jurors. CCP Section 222.5. Yet lawyers should recognize that, in most cases, questionnaires may be inefficient because of the time required for prospective jurors to complete questionnaires. Further, while questionnaires can be helpful in cases involving sensitive or complex issues, many judges believe that prospective jurors may provide more candid responses in chambers, out of the presence of other jurors. Questionnaires may, however, be particularly helpful in determining hardship excuses.

Challenges to Jurors

Code of Civil Procedure Section 225 sets forth the classes and types of challenges or objections to potential trial jurors. The two most commonly exercised challenges as to individual jurors are a challenge for cause, and a peremptory challenge.

A challenge to an individual juror may be made only before the jury is sworn. CCP Section 226(a). A challenge "for cause" to an individual juror is to be made first by the defendant, and then by the plaintiff. CCP Section 226(d). There is no limit on the number of challenges for cause, but all must be exercised before any peremptory challenges are made. CCP Section 226(c).

In civil cases, each party is entitled to six peremptory challenges. CCP Section 231(c). If there are more than two parties, the court must divide the parties into two or more sides according to their respective interests in the issues, for the purpose of allotting peremptory challenges. In that circumstance, each side is entitled to eight peremptory challenges. Id. If there are more than two sides, the court is to grant such additional peremptory challenges to a side "as the interests of justice may require." This is provided that the peremptory challenges of one side does not exceed the aggregate number of peremptory challenges of all other sides. Id. Peremptory challenges are taken or passed by the sides alternately, starting with the plaintiff. CCP Section 231(d).

Trial counsel should take the opportunity at the final status conference to ask the trial judge how the court handles "for cause" and peremptory challenges. Are "for cause" challenges made in open court? At sidebar? In chambers? While all challenges for cause are to be tried by the court (CCP Section 230), practices as to actually exercising a "for cause" or peremptory challenge vary by judge.

When each side passes consecutively, the jury shall then be sworn. The number of peremptory challenges remaining with a side is not diminished by any passing of a peremptory challenge. CCP Section 231(d)-(e). That is, if you decide to exercise a "pass" of a peremptory, you do not lose that challenge. But if the other side also passes, the jury is to be sworn.

Alternate Jurors

As noted above, the final status conference is when counsel should discuss, and the court will typically decide, the number of alternate jurors for your jury. The number of alternates is usually dictated by the length and complexity of the trial. An alternate juror, of course, will be designated by the court to take the place of a juror who is discharged due to illness or, upon a showing of good cause, the court finds to be unable to perform his or her duty. CCP Section 233.

Each side is entitled to as many peremptory challenges to the alternate jurors as there are alternate jurors called, e.g., three challenges per side for three alternates. CCP Section 234.

Some judges have the practice of selecting alternates, but not actually designating alternates until the case is submitted to the jury. This helps ensure that all jurors pay close attention. At the final status conference, some judges will ask whether the parties will stipulate that the alternates may be selected at the end of the case by lot.

Voir Dire

Standard 3.25(c) of the Standards of Judicial Administration provides courts with a list of matters regarding voir dire that a judge should consider covering, with suggested language. The court is to conduct the initial voir dire of the jurors, and then is to allow the attorneys to ask their questions. CCP Section 222.5; Cal. Rules of Court, Rule 3.1540(c).

Many judges do give each prospective juror a list of questions to review and answer in voir dire. These questions cover such areas as familiarity or experience with the legal system or legal training; and ability to be fair and follow the law, even despite personal disagreement.

Using creative questioning, within proper parameters, allows individuals to open up, and permits engagement of the potential jurors. This advice goes in the "it goes without saying" category, but practical experience indicates that it should be said: Counsel should actually listen to what prospective jurors have to say. Also, watch the jurors as they respond to questioning. Their reactions may be as significant as their answers.

While the law permits "liberal and probing examination" of jurors, it does not allow repetitive or duplicative questioning. CCP Section 222.5. Use your time wisely; your goal is to eliminate jurors who exhibit explicit or implicit bias. This bias may manifest itself based on what may be a "protected class" of one or both of the parties, such as race, sex, age or religion of the parties; on any bias for or against corporate entities; or biased based on the wealth (or lack thereof) of a party.

A juror may not be examined on voir dire solely for the purpose of laying the foundation for the exercise of a peremptory challenge. People v. Ferlin, 203 Cal. 587, 598 (1928). In the seminal case of People v. Wheeler, 22 Cal. 3d 258, 263 (1978), the California Supreme Court observed: "[V]eniremen are not required to announce their race, religion, or ethnic origin when they enter the box, and these matters are not ordinarily explored on voir dire. The reason, of course, is that the courts of California are - or should be - blind to all such distinctions among our citizens."

Indeed, Code of Civil Procedure Section 231.5 prohibits parties from using a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation or similar grounds.

If you believe that opposing counsel is using voir dire for such an improper purpose, you may make a "Wheeler/Batson motion" (sometimes referred to as just a "Wheeler" motion). A Wheeler/Batson motion is a challenge to the other side's peremptory challenge, on the basis of an impermissible bias, pursuant to People v. Wheeler, supra, and Batson v. Kentucky, 476 U.S. 79 (1986). Such a challenge should be made at sidebar. If your opposing counsel makes a Wheeler/Batson motion to a challenge you have made, you should be prepared to give your "neutral" reasons for exercising the challenge.

Conclusion

Voir dire is your opportunity to meet and choose the decision-makers who will determine your client's fate. As with the other parts of trial, voir dire is a function of preparedness and attention to detail. It is important for you to be familiar with the rules and discuss the procedure of voir dire with your assigned trial judge before trial begins.

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The objective of this article and self-study test is to review the law regarding objections to the use of peremptory challenges to remove jurors because they are members of cognizable groups.