Strategy for Winning in Kansas Jury Selection: Voir Dire
After doing many jury trials, I have developed a strategic and tactical approach to voir dire in Kansas cases. My method for jury selection (voir dire) in personal injury cases focuses on uncovering partial jurors and developing a relationship with the jury to last throughout the trial. Voir dire is not about manipulating the jurors, but just the opposite. It’s about authenticity between myself and the potential jurors and getting to the truth about the potential jurors who have partial feelings regarding the topics to be addressed in the trial.
Kansas Statutory Authority Regarding Voir Dire:
Jury selection for Kansas personal injury cases is primarily governed by three statutes: K.S.A. 60-247, 43-158, 43-159.
K.S.A. 60-247: Subsection (b) indicates that prospective jurors must be examined under oath or affirmation regarding their qualifications to sit as jurors. Subsection (c)(2) of this statute indicates that after the panel has been passed for cause, each party is entitled to three peremptory challenges, except as provided in subsection (h) of K.S.A. 60-248, and amendments thereto, when there are alternate jurors.
K.S.A. 43-158 discusses who shall be excused:
(a) Persons unable to understand the English language with a degree of proficiency sufficient to respond to a jury questionnaire form prepared by the commissioner;
(b) persons under adjudication of incompetency;
(c) persons who within 10 years immediately preceding have been convicted of or pleaded guilty, or nolo contendere, to an indictment or information charging a felony;
(d) persons who have served as jurors in the county within one year immediately preceding; and
(e) a mother breastfeeding her child. Jury service shall be postponed until such mother is no longer breastfeeding the child.
K.S.A. 43-159 discusses additional persons who may be excused:
(a) Persons so physically or mentally infirm as to be unequal to the task of ordinary jury duty;
(b) persons whose presence elsewhere is required for the public welfare, health or safety;
(c) persons for whom jury service would cause extraordinary or compelling personal hardship; and
(d) persons whose personal relationship to the parties or whose information or interest in the case to be tried is such that there is a probability such persons would find it difficult to be impartial. (Emphasis added).
PIK – Kansas Pattern Instructions:
Jury selection is the subject of the Pattern Instructions Kansas-Civil 4th, Chapter 101.00, Jury Orientation and Qualifying Instructions. Under PIK-Civil 4th 101.02, during voir dire:
Questioning is done by the judge or by the attorneys, and sometimes both, and is intended to determine if prospective jurors have any personal interest in or knowledge of the case; whether they are related to or personally acquainted with the parties or their attorneys; or whether they, for whatever reason, have a personal feeling or bias that would make it difficult for them to be fair and impartial to both sides of the case.
Voir dire examination under oath as set forth in K.S.A. 60-247(b) assists the parties and Court in making the determination of who may be excused from jury service under K.S.A. 43-159(d), Supreme Court Standards 6 and 8, and PIK-Civil 4th 101.02.
It is highly important that the conflicting rights of individuals should be adjudged by jurors as impartial as the lot of humanity will admit. Peoples Bank of Pratt v. Integral Ins. Co., 840 P.2d 503, 508, 251 Kan. 809, 815 (1992). There is no more important feature of a trial than the impaneling of an impartial and unbiased jury, and courts are very liberal in allowing inquiries into the competency and qualifications of persons called as jurors. State v. Lockett, 232 Kan. 317, 322, 654 P.2d 433, 438 (Kan. 1982).
What is the dual purpose of Voir Dire?
The voir dire examination serves a double purpose – first, to learn whether there is a disqualification or cause for challenge, and, second, to enable a party to determine whether he shall exercise the right of peremptory challenge given by statute. State v. Lockett, 232 Kan. 317, 322, 654 P.2d 433, 438 (1982) (“So careful is the law that a fair jury may be obtained that it not only provides for the exclusion of those shown to be partial or prejudiced, but it gives each party the added right to challenge a certain number not shown to be prejudiced or disqualified, whom the parties may desire to exclude for reasons not recognized by the law.”)
It has been said that the ultimate function of voir dire is to explore the nuances of conscience to determine whether a prospective juror is able to participate fairly in the deliberations . . . , confining his judgment to the facts as presented, and that the overall purpose of voir dire examination of jurors is to determine the real state of their minds so that a fair and impartial jury can be chosen. State v. Darling, 208 Kan. 469, 475-76, 493 P.2d 216, 222 (1972).
What is the primary purpose of voir dire and how does it apply to “for cause” challenges?
Yes. Voir dire serves to help the attorney figure out which jurors to use the peremptory strikes on. However, it is crucial to utilize the voir dire tie to identify those jurors who should be removed for cause, without having to use a peremptory challenge.
According to the Kansas Supreme Court, the purpose of voir dire is to select jurors who are competent and who could serve without bias, prejudice, or partiality. State v. Hunt, 61 Kan.App.2d 435, 449, 503 P.3d 1067, 1079 (2021) I agree with the Supreme Court. So, my first strategy in Voir Dire is consistent with the Kansas Supreme Court. My first goal in voir dire, for a Kansas personal injury case, is to attempt to show the bias and have partial jurors removed “for cause.” What is “for cause?” This is when the judge has the juror excused without either the Plaintiff or Defendant having to utilize one of their valued and limited peremptory strikes.
First Strategic Goal for Kansas Personal Injury Jury Trials During Voir Dire: Remove Partial Jurors For Cause
Cause challenges, not peremptory strikes, are the foundation of successful voir dire. The goal is to get biased jurors off the panel for cause, preserving peremptory strikes. This requires creating a record that satisfies the Kansas legal standard for removing a juror for cause.
It is crucial to encourage open and honest dialogue between myself and the potential jurors. Throughout the questioning, it is important to continue a calm and respectful tone to invite prospective jurors to admit potential bias. I want to normalizes the admission of bias. For example, I might says: “I’m wanting to have an open and honest conversation with you guys. I’m not looking for you to give me the answers I want to hear, but rather how you actually feel about the situation. The things you are honestly partial toward. For example, some people are just partial against personal injury lawsuit. It doesn’t mean they are wrong, it’s just what they are partial toward.” This straight forward invitation is an attempt to create an atmosphere where jurors are invited to speak openly and honestly about their bias, thus opening the door for cause strikes. The information conveyed by the prospective juror is what a judge needs to consider when deciding whether the juror should be removed for cause.
It is anticipated that during voir dire, some prospective jurors will provide answers which will admit they are biased, prejudiced, partial, or otherwise unfit to serve, and should therefore be challenged and stricken for cause. In addition, apart from admitted bias, persons may be excluded from the panel because of possible prejudice. Mathena v. Burchett, 189 Kan. 350, 354, 369 P.2d 487, 490 (1962).
An examination of a prospective juror is proper so long as it is conducted strictly within the right to discover the state of mind of the juror with respect to the matter in hand or any collateral matter reasonably liable to unduly influence him, and questions which go primarily to the ascertainment of any probable bias or ground of incompetency, as a basis of a challenge for cause, or possibly of a peremptory challenge, are permissible. See Darling, 208 Kan. at 476, 493 P.2d at 222.
When determining whether a prospective juror would be fair and impartial, the court should not just consider whether the juror said specific “magic words” The lawyers, both on the defense or plaintiff’s side may try to get a juror to state specific magic words to convince a court to excuse them for cause. However, the Court should keep an independent and wide eye view of the juror.
The trial court should be aware of fundamental fairness during jury selection, regardless of how well the venirepersons might be coaxed during voir dire to say the “magic words” that will placate a reviewing court. State v. Thurber, 420 P.2d 389, 455 (Kan. 2018) (Johnson, J., dissenting). Even if a prospective juror gives one-word answers that they would be able to fairly look at the evidence and apply the instructed burden of proof, but the substance of the answers to other questions asked leads the Court to believe that the prospective juror would not be able to fairly and impartially apply the law, the prospective juror can be struck for cause. See State v. Parker, 358 P.3d 878 (Kan. App. 2015).
Where a juror finds it might be difficult to be a fair and impartial juror; and it would be difficult to remain unsympathetic, such that they conclude they might be an unfair and partial juror, and recognize that they do hold deep feelings on the matter, and do not desire to sit as a juror in the case, it would a questionable use of discretion in refusing to excuse that juror for cause, and it would be safer to excuse the juror from the panel. See State v. Dixon, 248 Kan. 776, 790, 811 P.2d 1153, 1163 (1991).
Where a juror says they “could be fair to both sides” and understands they could not take their personal experiences into account if selected, but acknowledges it might cause them a problem as a juror, the juror may be stricken for cause. See State v. Johnson, 253 Kan. 75, 85, 853 P.2d 34, 42 (1993).
An equivocal answer of “I think I could” base a decision solely on the evidence presented in court raises a question of whether a venireperson should be dismissed for cause. See State v. Miller, 427 P.3d 907, 929 (Kan. 2018). See also State v. Lawrence, 347 P.3d 240 (Kan. App. 2015) (despite comment “I think I could render a fair verdict,” district court agreed that juror be removed for cause).
Where a juror feels that they “could be fair and impartial,” but nevertheless thinks their verdict might be influenced, even by something they cannot describe, this is reasonable cause to dismiss the juror. See State v. Haislip, 237 Kan. 461, 469-71, 701 P.2d 909, 918 (1985).
Where it is apparent that a juror started into the trial with an opinion about the merits of the case, even while the juror modifies these statements under suggestive questions that he could “set aside the opinion he formed and determine the case according to the evidence,” the juror should be excused upon a challenge for cause. See State v. Smith, 74 Kan. 383, 385, 85 P. 1020 (1906).
Alas, sometime a juror will straight up say that they will be impartial, and even truly believe it, but the other evidence suggests otherwise. Our Kansas appellate courts have recognized this discrepancy.
Prospective jurors with the purest of intentions may, in the heat of the moment in front of their peers, underestimate their own bias. Hayes, 908 P.2d at 599. Instead, a judge’s appraisal of a juror’s impartiality can be influenced by a host of factors, including the prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty. State v. Smith, 432 P.3d 109 (Kan. App. 2018).
Second Strategic Goal for Kansas Personal Injury Jury Trials During Voir Dire: Identify and Validate Juror’s Biases or Partialities
When a potential juror shares their bias, the plaintiff’s lawyer should thank the juror, especially if the bias is against the injured plaintiff. The potential juror just gave you a gift in the form of an honest answer. So, don’t push back or argue with them. Instead, be like this:
Potential Juror: “People are just trying to get rich off our lawsuit system.”
Personal Injury Attorney: “Thank you for your answer. I’m hearing that you are partial against personal injury lawsuits due to people taking advantage of the Court system? Am I accurately communicating your feelings?” (identify)
Potential Juror: “Yes.”
Personal Injury Attorney: “Your honesty is appreciated and what makes voir dire work. In fact, there’s probably several other people here that share your same feelings.” (validate) This response encourages jurors to continue being open and honest, creating an opportunity for the lawyer to establish a “for cause” challenge.
Personal Injury Attorney: “Who else here would agree with what Mr. Johnson said?”
Other Potential Juror: “I agree with him.”
Personal Injury Attorney: “Thank you. Based on your honesty and openness right now, is it fair to say that you would try to remain fair during the trial, if you were on the jury?” (If the say no, then that is an obvious removal for cause)
Other Potential Juror: “Yes.”
Personal Injury Attorney: “But would it be fair to say that despite wanting to be fair, your partiality against lawsuits, could impact you during the case?” Repeat with other jurors expressing similar views.
Third Strategic Goal for Kansas Personal Injury Jury Trials During Voir Dire: Utilize Hot Button Questions to Find Biased Jurors
The more tailored to your specific case, the better. But general questions would include things like:
“Who here would say that “There are too many lawsuits?” “Most people who file lawsuits exaggerate their injuries?” “We’re going to be asking for millions of dollars in damages. Who here would have a difficult time awarding that amount of money, regardless of what the evidence shows?”
Fourth Strategic Goal for Kansas Personal Injury Jury Trials During Voir Dire: Address Weaknesses of the Case
Don’t just ignore the potential problems. They’re not just going away. So, address them head on. Find potential jurors who won’t be able to see past your issues. They may need to be stricken for cause.
Personal Injury Attorney: “You’re going to hear in this case that, that Mr. Smith did not go to the hospital right away.” (address weakness)
Personal Injury Attorney: “Who here would say that you would have a difficult time remaining open and hearing the other evidence because Mr. Smith didn’t immediately go to the hospital.” (identify bias)
Fifth Strategic Goal for Kansas Personal Injury Jury Trials During Voir Dire: Frame Plaintiff’s Weaknesses to Underscore the Defense’s Issues
Start getting the jurors thinking about the issue ahead of time in a light favorable to the plaintiff. Generally, discussing the specific facts of the case or jury instructions is inappropriate to discuss during the jury selection process. However, it can be a very appropriate time to address these things. In fact, this may be a time where the injury lawyer may need to address Kansas law on specific issues or be a little more specific on the issues of the case.
Personal Injury Attorney: “If somebody already had an injury to their neck, and someone else made it worse, do you agree that person should be responsible for the additional damage to the neck?”
Personal Injury Attorney: “This is such an important issues, that Kansas has made a law regarding it.”
This primes jurors to accept the plaintiff’s damages theory while filtering out those who reject it outright.
The defense will not want to allow you to discuss this, and may even object. However, it is indeed appropriate, according to the Kansas Supreme Court.
A proper inquiry for voir dire includes the subject matter of the case, and how the evidence would be presented. See State v. Hunt, 61 Kan.App.2d 435, 449, 503 P.3d 1067, 1079 (2021). See also State v. Zamora, 247 Kan. 684, 692, 803 P.2d 568, 574 (1990).
It is also proper to instruct potential jurors as to the law in order to perform proper voir dire and discover if the jurors are capable of applying the law in the case. State v. Mims, 264 Kan. 506, 516, 956 P.2d 1337, 1345 (1998).
Sixth Strategic Goal for Kansas Personal Injury Jury Trials During Voir Dire: Persuasive Themes
The plaintiff’s lawyer should use subjects that are generally accepted and valued throughout society. Things like, safety, accountability, and fairness.
Personal Injury Attorney: “Do you agree that if a person breaks the safety rule, causing someone else to get hurt, they should be held accountable?”
This kind of questions plants the theme, moral foundation behind which a jury can get behind in order to award a favorable plaintiff’s verdict.
Seventh Strategic Goal for Kansas Personal Injury Jury Trials During Voir Dire: Develop a Connection with the Jury
Listen to the jury. Dialogue with them. Interact with them. I remember one of my first jury trials many years ago, in federal court. I was having an interesting conversation with the jury. The opposing side objected, saying, “Judge, he’s just having a conversation with the jury.” The judge replied, “Yeah. That’s what he’s supposed to do.”
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