Memo to the bench: civil jury selection is different

California judges presiding over civil trials often restrict jury selection in contravention of the law pertaining to this critical aspect of trial. This may be due, in part, to the large number of civil judges who practiced criminal law exclusively before taking the bench. Jury selection in criminal cases is a bird of a different feather, with strict limits on the rights of lawyers to engage in voir dire, and greater discretion for courts to limit questioning.

No such limitations were placed upon civil jury selection. Instead, state law allows civil litigants to fully explore juror attitudes, beliefs and proclivities.

Here is a short list of civil jury selection rulings that are commonplace -- but incorrect:

1. Time limits.

The most common judicial affront to statutory and constitutional rights is the declaration at the outset of trial of a 30-minute limit to voir dire. In most, if not a majority of courtrooms, such arbitrary limitations apply to every case, regardless of complexity, the length of the trial, or the sensitivity of the issues. When Code of Civil Procedure 222.5 was enacted in 1990, it included this proscription: "Specific unreasonable or arbitrary time limits shall not be imposed in any case." In the years following enactment of Section 222.5, trial lawyers found this language of the statute wasn't being followed. So, in 2011, the Legislature enacted Assembly Bill 1403 and decreed the trial judge "shall not establish a blanket policy of a time limit for voir dire." Unfortunately, both sentences are now routinely ignored.

2. Refusal to permit juror questionnaires.

Trial lawyers hear from judges, again and again, that that they won't allow jury questionnaires because they consume too much time. This not only runs afoul of Section 222.5, which prohibits "arbitrarily or unreasonably" refusal of written questionnaires, but is also factually incorrect. A wisely administered questionnaire will actually reduce court time spent on voir dire. Here's why:

What takes up time is filling out of the questionnaire, so the sensible method is to have a panel answer the questions in the jury assembly room before reporting to court. If that's not practical, then the questionnaire should be completed by jurors either before or just after the panel is time-qualified by the court. Section 222.5 provides that reasonable time be given to evaluate responses, so after the questionnaires are completed and collected, the panel should be adjourned and told to return the next day, giving attorneys time to review the questionnaires.

When voir dire begins with a questionnaire, lawyers will already know the jurors they like, and the ones they don't. The voir dire process proceeds with a much higher level of efficiency. An experienced trial lawyer utilizing a questionnaire can cut the time for voir dire in half.

3. Refusing certain questions.

Many questions that lawyers ask in voir dire seem strange, even silly. But there may be good reasons to ask them, and the court is in no position to second guess. Recently, a panel of jury consultants was asked to come up with the single most revealing question for a potential juror. The panel's choice: "How do you feel about homeless people?" While many judges might rule such a question irrelevant, the juror's answer speaks volumes. Does she say, "Get a job!" or is it, "There, but for the grace of God, go I"? Her answer to this question says so much more about whether she is plaintiff-oriented or defense-oriented than to, "Can you be fair?"

Section 222.5 makes clear there is no relevancy standard in voir dire: "Upon completion of the judge's initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause." A peremptory challenge is one where no reason need be given for its exercise. Code of Civil Procedure Section 226(b). If a party shall have the right to examine for the intelligent exercise of a challenge for no reason, then the court cannot demand a reason for the examination. So the court may not sustain an objection to voir dire examination on the grounds of relevancy.

4. Efforts to rehabilitate biased panelists.

Jurors are hard to come by, and many courts struggle to recruit enough to run trials efficiently. Little wonder that so many judges are loath to grant hardships or excuse jurors who admit bias. But the principles to be considered in such circumstances include state and federal constitutional rights to trial by jury. A party forced to use a peremptory challenge to remove a biased juror is being unfairly denied their statutorily specified number of peremptory challenges. This has repeatedly been held reversible error. Leibman v. Curtis, 138 Cal. App. 2d 222, 226 (1955).

In a misguided effort to maintain the size of the jury pool, courts typically seek to "rehabilitate" jurors who have confessed bias by asking them questions like this:

The court: I understand you think you may have beliefs that could interfere with your participation as a juror in this case. But your duty as a juror is to follow the court's instructions on the law. Can you assure me that you will set your personal feelings aside and follow my instructions?

The venire panelist: Yes, your honor, I will.

This effort at court rehabilitation of bias is wrong-headed for two reasons. First, the question asked of the juror is a leading one; its clear purpose is to elicit agreement. Facing the authority of the court and the scrutiny of fellow panelists, most people will shrink from an honest answer. Our Supreme Court has recognized this. See People v. Balderas, 41 Cal. 3d 144, 183 (1985); People v. Williams, 29 Cal. 3d 392, 410 (1981).

The second problem is that such efforts at rehabilitation foster disrespect for the court. An insincere response meant to appease a judge is destructive to the court's authority and to the integrity of the process.

In some jurisdictions it is reversible error for a court to deny a challenge for cause to a juror who admits bias but is subsequently "rehabilitated" by the court with a leading question. See, e.g., McGill v. Commonwealth, 10 Va. App. 237 (1990). This specific issue has not arisen in California decisional law, but in view of the language of Balderas and Williams, one would expect California courts to follow the Virginia rule.

Conclusion

Years ago, I was encouraged to read "The 'How to Win' Trial Manual" written by esteemed appellate judge Ralph Adam Fine. His chapter on jury selection was only a few paragraphs long. Judge Fine opined that it really didn't matter who was on the jury. What mattered was how the case was presented.

We now know how terribly wrong he was. Today's use of focus groups demonstrates that most cases involve two trials: The first in the courtroom, the second in the jury deliberation room. The film classic, "Twelve Angry Men" made this point.

We also know how critical jury selection is to case outcome from emerging social science studies of human behavior. Elizabeth Kolbert's recent New Yorker article on how important decisions are made ("That's What You Think - Why reason and evidence won't change our minds," Feb. 27, 2017) provides an excellent discussion of such studies. Once you recognize that people decide issues by emotion, calculation of group dynamics, and other non-rational bases, you also must accept that who is on or kept off the jury drives the result as much as any other factor. We may think this is a bad thing. Juries should decide cases rationally. But social science tells us that it's wrong to view this as good or bad. It's simply human.

That's why the rules set forth in Code of Civil Procedure Section 222.5 are so important, and why, for the sake of justice, it's so important that they be followed.