An “on-shoulders-of-giants” primer on successful jury selection cause challenges
Every fiber of the lawyer’s being crackled. Jury selection did that – spotlight attention on one prospective juror, peripheral awareness of all. They were discussing gay marriage, as the lawyer’s clients were gay and married. The prospective juror, a pastor, acknowledged, “Those people may have a legal right to be married, but according to God…” Hello, dancer. So begins the cause challenge tango.
Bias, challenges, and the law
In California, peremptory challenges are limited to six per side. Cause challenges, however, are unlimited. Sort of. Judges are under pressure from jury commissioners to not blow through panels. This pressure, as well as concerns about lengthy jury selection prolonging trials, mean judges hate running out of prospective jurors. The smaller the panel, the closer to the last few potential jurors remaining, the less likely one will get a cause challenge. These are typically subconscious concerns impacting rulings, or secondary judicial economy gain (if you believe defense experts). Want to reduce this? Argue for larger panels by highlighting case-specific bias issues before panel requests go to the jury commissioner.
What biases, then, knock someone off? There are actual biases and implied biases. Actual bias means prospective jurors cannot act with entire impartiality. (Code Civ. Proc., § 225, subd. (b)(1)(C).) Actual biases are defined by phrases judges look for while lawyers are setting up cause challenges. While cause challenges require only one trait, racking up many helps. The thaumaturgic words include strong beliefs, long-held beliefs, beliefs not easily set aside, where one party starts at a disadvantage, and where a juror either cannot follow the law or is substantially impaired from following it. Each of these are grounded in case law fully articulated in The Rutter Guide’s Civil Trials and Evidence, as well as Coopers’ cause challenge outline, which we will provide if you call or email our office.
Implied bias includes potential jurors who are related to a party or witness, who have another relationship to a party or witness (i.e., fiduciary, domestic, or business), who were prior jurors or witnesses in litigation involving a party, who have an interest in the litigation, who have unqualified opinions based on knowledge of material facts; or who have enmity or bias toward a party. (Code Civ. Proc., § 229.)
For anyone who, after establishing bias, has had a judge or opposing counsel attempt rehabilitation with a variant of, “Mr. Juror, if you were ordered to be fair and follow the law, you would, wouldn’t you?” sock this case away: Lombardi v. California Street Ry. Co. (1899) 124 Cal. 311, 314 holds that once a potential juror admits bias, they cannot be rehabilitated simply by stating, “I can be fair,” or “I will follow the law.” Once bias is established, bring any flawed rehabilitation efforts to heel by citing this case.
Establishing bias starts by defusing the word bias at jury selection’s outset. Everyone has a tool, mine is squash. I’m biased against squash. I don’t like it. If you had me at a food competition, and a dish had squash in it, I couldn’t be fair. Later, when bias appears, return to one’s chosen example and take them up the bias escalator. As one does this, co-counsel simultaneously takes scrupulous notes to argue the bias with those magic phrases and, if necessary, to put it on the record later.
Invite the juror in, and do not judge. The more reprehensible, the more helpful they become. Gently escalate them from not quite neutral to admitted bias. An abbreviated version might look like this: “It sounds like those are long-held and deep beliefs. With those, do you agree it might be a little challenging for you to be entirely neutral? Would you agree that for you, our client starts a little behind the other side for you? Would you agree you cannot be entirely impartial? That you would not want someone with your beliefs on the jury if you were our client? That while it takes courage to say it, you have a bias here that means you cannot sit in judgment on this particular case? That you are biased against our client? That you cannot be fair here?
Just like a deposition, err on getting too much bias rather than not enough. Once done, thank the juror for their candor and ask the panel if anyone else has any similar feelings to the now-challengeable potential juror. Frequently, there will be nods, and the next round gets easier.
Back to our lawyer and the pastor. The pastor admitted bias, as did several others, helping remove biased jurors to ease the path to a plaintiff’s verdict. A shout out here to all the giants who, through the trial crucible, have honed these skills and generously shared them. For us these giants include Cynthia McGuinn, Bill Veen, Karen Jo Koonan, and Rich Schoenberger, the last of whom brought forward C.C.P. § 225(b)(1)(c)’s “entirely impartial” language in a way that led to innumerable successful cause challenges in San Mateo County.