Court ADR Program Article
Trial lawyers are consistently tasked with building the best potential jury during voir dire. While they are typically adept at the voir dire fact-gather process to ferret out bias, many trial attorneys I have spoken with consistently struggle with evaluating potential jurors that lack such factual bias. It can certainly be difficult to assess how someone thinks and how they will relate to other jurors, particularly in the typically frenetic voir dire settings. However, clinical psychology can provide attorneys helpful guidance in making quick, insightful voir dire juror assessments even where no factual bias is uncovered.
Over 30 years of empirical literature tells us that the relationship or lack a relationship with our primary and earliest caregivers results in four different distinct decision-making styles. Each individual falls within one of these categories, and each style can provide insight into the way a juror thinks and interacts with others. To identify which type each person falls in requires careful assessment of verbal and, in particularly, non-verbal cues. Doing so can provide a powerful tool to evaluate a juror, particularly in instances of no bias.
The easiest and most important decision-making style to identify at trial is the “avoidant” type. This type of decision-maker regulates their emotions by simply deactivating or minimizing them. They basically cannot feel. This is a dream defense juror, as they prefer logic and resist anything of a feeling or relational nature. If you are the plaintiff on a personal injury case, however, this is the juror on which to use a peremptory challenge. So how do you identify this juror? This juror type is so skeptical that you can actually see it in their facial expressions and the way they sit away from others. They are disinterested in their environment and compulsively self-reliant. It is important to listen to their word choices as they will give you just enough information to answer the question and reveal nothing personal.
The second type of decision-making style is called “unresolved”. This is the juror with a pattern of dissatisfaction with life who rambles and speaks in a non-linear format during voir dire. This type of juror sees human beings as heroes or villains, typically blames others and lacks personal responsibility. This makes them typically a favorable plaintiff juror but one that the defense should typically avoid.
The third type of decision making style is called “anxious-ambivalent”. This is the juror that has so many feelings that making use of their left brain and sense of information is challenging. Their feelings drown out their thoughts. The often are accomplished, such as finishing nursing school or earning a teaching credential, but at the same time act powerless. This type of decision-maker is likely to vote with the majority, as relationships are everything to them. Thus, they would generally not be worth using a peremptory challenge to remove.
The fourth and final type of decision-making style is called “secure”. This is an individual who lacks any of the affects presented by the previously described types and one that is most important to pay attention to. It is critical to deeply investigate their attitudes and bias in voir dire because they typically treat each side fairly unless they have had a life experience that makes it difficult for them to do so. They are secure in their own thoughts, not emotionally distracted, and so can listen to the evidence. They are well liked by other jurors which makes them a potential to be the foreperson.