Overview

A detailed guide to every aspect of selecting a jury in a California personal injury case, including the new CCP 231.7 framework for peremptory challenges.

Key takeaway
California jury selection involves questioning prospective jurors during voir dire to identify bias. Jurors are removed through challenges for cause (unlimited, for bias) or peremptory challenges (limited, non-discriminatory). CCP 231.7 strengthened protections against discriminatory peremptory challenges.

California Jury Selection Procedure

The Venire

The jury venire (panel) is drawn from the county's master list of eligible jurors. In most California courts, the venire for a civil case consists of 30-60 prospective jurors called to the courtroom. From this pool, 12 jurors and any alternates will be selected.

The Selection Process

California courts use one of two methods:

  1. The struck jury method: All prospective jurors are questioned, then each side exercises challenges. The remaining jurors serve.
  2. The sequential method (most common): Twelve jurors are seated in the box. Each side questions and exercises challenges. When a juror is excused, the next prospective juror fills the seat.

The specific method depends on the judge's preference and local court practice. Always ask the judge's clerk about the procedure before trial.

Number of Jurors

In civil cases, the jury consists of 12 jurors unless the parties stipulate to fewer (CCP 220). Typically, 1-2 alternates are also selected. A verdict requires the agreement of 9 of 12 jurors (Cal. Const., Art. I, section 16).

Practice Tip: The 9-of-12 verdict requirement means you can afford up to 3 unfavorable jurors. But do not rely on this margin. Aim to seat 12 jurors you are comfortable with. The 3-juror buffer is a safety net, not a strategy.

CCP 222.5: Voir Dire Rights

Attorney-Conducted Voir Dire

CCP section 222.5 guarantees attorneys the right to conduct voir dire examination in civil cases. The statute provides that the court shall allow a reasonable time for voir dire by counsel for each party. This was enacted to prevent judges from conducting all questioning themselves and limiting attorney participation.

What CCP 222.5 Permits

  • Attorneys may ask prospective jurors questions to determine bias, prejudice, or inability to be fair
  • Attorneys may ask questions designed to facilitate intelligent exercise of peremptory challenges
  • The court may not unduly restrict the scope or duration of attorney voir dire
  • Attorneys may ask open-ended questions that invite jurors to discuss their experiences and attitudes

What CCP 222.5 Does Not Permit

  • Attorneys may not use voir dire to argue the case or pre-try issues
  • Attorneys may not ask jurors to pre-commit to a specific outcome
  • Attorneys may not ask legal questions that misstate the law
  • Attorneys may not use voir dire to indoctrinate the jury

Time Limits

Many judges impose time limits on voir dire. Common limits are 20-30 minutes per side, though complex cases may warrant more time. If the judge imposes unreasonably short limits, object and cite CCP 222.5's guarantee of "reasonable time."

Preserving Your Voir Dire Rights
If the judge limits your voir dire time or restricts your questioning, make a record. State on the record what additional questions you would have asked and how the restriction impaired your ability to identify bias. This preserves the issue for appeal if a biased juror ultimately sits on the panel.

For detailed voir dire questioning techniques, strategies, and sample questions, see Voir Dire.

Challenges for Cause

Legal Standard

A challenge for cause removes a juror based on a showing that the juror cannot be fair and impartial. Under CCP section 225-228, there are two types:

  1. General disqualification (CCP 225(b)(1)): The juror is disqualified as a matter of law (e.g., related to a party, has a financial interest in the outcome)
  2. Implied bias (CCP 225(b)(1)(B)): The juror's circumstances create an inference of bias that the law conclusively presumes
  3. Actual bias (CCP 225(b)(1)(C)): The existence of a state of mind on the part of the juror with reference to the case or the parties that will prevent the juror from acting with entire impartiality

Unlimited Challenges

Unlike peremptory challenges, there is no limit on the number of for-cause challenges. This makes developing cause challenges a critical skill -- every successful cause challenge preserves a peremptory challenge for use elsewhere.

Building a Cause Challenge

The key to a successful cause challenge is creating a clear record of bias:

  1. Identify the bias: Through questioning, establish that the juror has a specific bias, prejudice, or belief that would affect their deliberations
  2. Confirm the bias is fixed: Ask whether the juror can set aside the bias and follow the law. If the juror equivocates or says they will try, this supports a cause challenge.
  3. Do not rehabilitate: Stop questioning once you have established the bias. Do not give the juror an opportunity to walk back their statements.
  4. Move to strike immediately: Make the cause challenge at the bench, outside the hearing of other jurors
Practice Tip: The most common reason cause challenges fail is that the juror says the magic words: "I can be fair." Judges are reluctant to strike jurors who express willingness to try. To build a winning cause challenge, elicit specific statements of bias before the juror has a chance to offer reassurances. Ask "how strongly do you feel about that?" and "can you tell me more?" before asking whether they can be fair. If the juror's statements of bias are strong enough, the court should strike them regardless of a subsequent assurance of fairness.

Common Bases for Cause Challenges in PI Cases

  • Prior experience as a personal injury defendant
  • Close relationship with someone in the insurance industry
  • Strong belief that lawsuits are frivolous or that there are too many lawsuits
  • Belief that pain and suffering damages should not be awarded
  • Inability to follow the law on burden of proof (preponderance of evidence)
  • Prior negative experience with the medical or legal system that creates bias
  • Financial hardship that would prevent the juror from giving full attention to a lengthy trial

Peremptory Challenges

Number of Challenges

Under CCP section 231(c), each side receives 6 peremptory challenges in a civil case. If there are multiple parties on one side with adverse interests, additional challenges may be granted.

Strategic Use

Peremptory challenges are your most valuable and limited resource in jury selection. Use them wisely:

  1. Save them for jurors you cannot remove for cause: If you can build a cause challenge, do so and preserve your peremptory challenges
  2. Prioritize the most dangerous jurors: Not every unfavorable juror is equally dangerous. Focus peremptory challenges on jurors with the strongest anti-plaintiff bias.
  3. Consider the replacement: Before exercising a peremptory challenge, consider who will replace the excused juror. Removing a mediocre juror may result in seating a worse one.
  4. Track the other side's challenges: Note which jurors the defense challenges -- this reveals who the defense considers favorable to your side

The Batson/Wheeler Doctrine

Peremptory challenges may not be exercised on the basis of race, ethnicity, gender, or other protected characteristics. See the CCP 231.7 discussion below for California's current framework.

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CCP 231.7: The New Batson/Wheeler Framework

Overview

Effective January 1, 2022, CCP section 231.7 replaced the traditional Batson/Wheeler framework for challenging discriminatory use of peremptory challenges. The new statute fundamentally changed the analysis by eliminating the requirement that the objecting party prove discriminatory intent.

The Old Framework (Batson/Wheeler)

Under the prior framework, a party challenging a peremptory strike had to establish a prima facie case of discrimination, the striking party then offered a race-neutral explanation, and the court evaluated whether the explanation was pretextual. The intent requirement made challenges extremely difficult to sustain.

The New CCP 231.7 Framework

CCP 231.7 creates a presumption that certain justifications for peremptory challenges are invalid because they have historically been associated with improper discrimination:

Presumptively Invalid Reasons (CCP 231.7(e))

The statute identifies specific reasons that are presumptively invalid as justifications for a peremptory challenge, including but not limited to:

  • Expressing distrust of law enforcement or the legal system
  • Having a close relationship with someone who has been arrested, charged, or convicted of a crime
  • Living in a high-crime neighborhood
  • Expressing a belief that the criminal or civil justice system is biased
  • Having financial difficulties or receiving government benefits
  • Not speaking English as a primary language
  • Dress, attire, or demeanor

The New Standard: Objective Observer

Under CCP 231.7(d), the court must evaluate whether an objective observer would view the use of a peremptory challenge as having been substantially motivated by the prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation. The objective observer is aware of the history of discrimination in jury selection and its impact.

Practical Impact on PI Cases

CCP 231.7 significantly affects jury selection strategy:

  • Document your reasons: For every peremptory challenge you exercise, note specific, case-related reasons unrelated to any protected characteristic
  • Challenge defense strikes: If the defense strikes jurors who appear favorable to your side and share a protected characteristic, raise a CCP 231.7 objection
  • Avoid presumptively invalid reasons: Even if your actual motivation is not discriminatory, relying on presumptively invalid reasons creates a vulnerability
Key Takeaway: CCP 231.7 is a paradigm shift. The elimination of the intent requirement means that peremptory challenges can be overturned based on how the strike would appear to a reasonable observer, regardless of the striking party's actual motivation. Every attorney must be prepared to articulate specific, case-related, non-discriminatory reasons for every peremptory challenge exercised.

Jury Questionnaires

When to Use Questionnaires

Jury questionnaires are written surveys completed by prospective jurors before oral voir dire. They are most useful in:

  • Complex cases with many evidentiary issues
  • Cases involving sensitive topics (medical conditions, financial hardship)
  • Cases likely to generate significant publicity
  • High-value cases where jury research justifies the investment
  • Cases where jury bias patterns are predictable

Requesting a Questionnaire

File a written request for a jury questionnaire, attaching a proposed questionnaire, well in advance of trial. CCP 222.5 supports the use of questionnaires as a supplement to oral voir dire. Many judges will agree to short questionnaires (1-3 pages) if both sides consent.

Designing Effective Questionnaires

The questionnaire should cover:

  1. Demographics: Occupation, education, marital status, number and ages of children
  2. Litigation experience: Prior jury service, prior lawsuits (as plaintiff or defendant), experience with insurance claims
  3. Relevant experiences: Personal injury experience, medical treatment experience, family members with similar injuries
  4. Attitudes: Views on lawsuits, personal responsibility, the legal system, damages awards
  5. Media exposure: Knowledge of the case or similar cases from media coverage
  6. Professional connections: Employment in insurance, law, medicine, or related fields
Practice Tip: Design questionnaire questions as open-ended prompts rather than yes/no checkboxes. "Describe any experience you have had with a personal injury claim, either as a claimant or as someone against whom a claim was made" yields far more useful information than "Have you ever been involved in a personal injury claim? Yes/No." Open-ended questions reveal attitudes and experiences that binary questions miss.

Analyzing Questionnaire Responses

Review questionnaires as soon as they are returned. Create a juror rating system:

  • Green: Favorable indicators (personal injury experience as plaintiff, medical professionals who understand injury severity, teachers, social workers)
  • Yellow: Neutral or mixed indicators (requires further questioning)
  • Red: Unfavorable indicators (insurance industry connections, expressed anti-lawsuit attitudes, defense-oriented professionals)

Bias Detection Strategies

Types of Juror Bias

  1. Explicit bias: Openly expressed prejudice against plaintiffs, attorneys, or the legal system
  2. Implicit bias: Unconscious attitudes that affect decision-making without the juror's awareness
  3. Experiential bias: Bias arising from personal experience (prior lawsuit, family member's injury, negative medical experience)
  4. Attitudinal bias: Deeply held beliefs about personal responsibility, government regulation, the litigation system, or damages

Detecting Bias Through Questioning

Commitment Questions

Ask jurors to commit to specific principles before deliberation:

  • "Can you agree that if the plaintiff proves their case, you will award fair compensation for pain and suffering, even if that amount is in the millions?"
  • "Do you agree that every person injured by another's negligence deserves their day in court?"
  • "Can you follow the law that says there is no cap on damages for pain and suffering?"

Scaling Questions

Ask jurors to rate their attitudes on a scale:

  • "On a scale of 1 to 10, with 10 being strongly agree, how much do you agree with the statement: there are too many frivolous lawsuits in America?"
  • "How comfortable are you, on a scale of 1 to 10, with the idea of awarding money for pain and suffering?"

Experiential Questions

Ask about personal experiences that reveal attitudes:

  • "Has anyone here ever been in a car accident? What was that experience like?"
  • "Has anyone ever made an insurance claim? Did you feel the process was fair?"
  • "Has anyone had a family member suffer a serious injury? How did it affect the family?"
Listen More Than You Talk
The most common mistake in voir dire is talking too much and listening too little. Your goal is to get jurors talking about their experiences, beliefs, and attitudes. Ask open-ended questions and let jurors fill the silence. The juror who talks the most reveals the most.

Juror Profiles for PI Cases

Favorable Juror Characteristics

While every case is different, certain characteristics generally favor PI plaintiffs:

  • Healthcare workers (nurses, therapists, aides): Understand injury severity and the difficulty of recovery
  • Teachers and social workers: Empathetic, community-oriented, comfortable with non-economic damages
  • Parents of young children: Understand fear, vulnerability, and the impact of injury on family life
  • People with personal injury experience (as plaintiff): Understand the claims process and the legitimacy of seeking compensation
  • Union members: Accustomed to collective advocacy and holding institutions accountable
  • Community volunteers: Service-oriented, empathetic

Unfavorable Juror Characteristics

Characteristics that generally disfavor PI plaintiffs:

  • Insurance industry employees: Allegiance to the industry, skepticism toward claims
  • Corporate management/executives: May identify with defendants, skeptical of large damages
  • Engineers and accountants: Hyper-analytical, may discount non-economic damages, demand excessive proof
  • People with strong "personal responsibility" beliefs: May blame the plaintiff regardless of the evidence
  • Prior defense jurors: May have been influenced by defense framing in a prior trial
  • Doctors (as jurors): May be skeptical of treating physician testimony, empathize with defendant physicians in malpractice cases
Avoid Stereotyping
These profiles are generalizations, not rules. An engineer who was recently injured in a car accident may be your best juror. A nurse who has strong anti-lawsuit views may be your worst. Use profiles as a starting point for questioning, but let each juror's individual responses guide your decisions. CCP 231.7 also prohibits relying on demographic characteristics as proxies for bias.
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Stealth Jurors

What Is a Stealth Juror?

A stealth juror is a prospective juror who conceals bias during voir dire in order to be selected and then influence the verdict. Stealth jurors may be motivated by:

  • A personal agenda (anti-lawsuit ideology, desire to protect a particular industry)
  • Prior knowledge or connection to the case that they do not disclose
  • A desire to participate in a high-profile trial

Identifying Stealth Jurors

Warning signs include:

  • Overly eager to serve: Most jurors would prefer not to serve. A juror who is unusually enthusiastic may have an agenda.
  • Perfect answers: A juror who gives textbook-neutral answers to every question may be concealing true opinions
  • Inconsistencies: Answers that conflict with demographic or experiential information (e.g., a juror with insurance industry experience who claims no opinion about lawsuits)
  • Excessive eye contact or body language mismatch: Non-verbal cues that do not match verbal responses
  • Social media presence: If permissible, research jurors' social media for posts revealing undisclosed attitudes

Countering Stealth Jurors

  • Ask follow-up questions that probe beneath surface-level answers
  • Use jury questionnaires to create a written record that can reveal inconsistencies
  • Pay attention to body language and demeanor during other jurors' questioning
  • Use focus group data to anticipate the types of stealth jurors likely in your venue

Building Rapport During Voir Dire

Why Rapport Matters

Voir dire is your first impression with the jury. The jurors who survive selection will have formed opinions about you as a person before opening statements begin. Building rapport during voir dire:

  • Encourages jurors to be honest about their biases
  • Establishes you as trustworthy and relatable
  • Creates a positive association between you and your client
  • Makes jurors more receptive to your case during trial

Rapport-Building Techniques

  1. Introduce yourself as a person, not just a lawyer: Share a brief personal detail that humanizes you
  2. Acknowledge the inconvenience: Thank jurors for their time and recognize the sacrifice of jury duty
  3. Be genuinely curious: Ask questions as if you truly want to understand the juror's perspective, because you should
  4. Use jurors' names: Remembering and using names demonstrates respect and attention
  5. Validate all responses: Thank jurors for honest answers, even unfavorable ones. "I appreciate your honesty" goes a long way.
  6. Make eye contact: Engage each juror individually, not as a group
  7. Avoid legal jargon: Speak plainly and conversationally
Key Takeaway: The best voir dire does not feel like an interrogation. It feels like a conversation between people who are getting to know each other. The jurors should leave voir dire feeling that you are honest, genuine, and trustworthy -- even the jurors you ultimately excuse.

Focus Groups and Mock Juries

Purpose

Focus groups and mock juries test your case themes, arguments, and evidence before trial. They provide:

  • Insight into how real people react to your case facts
  • Identification of weaknesses you may not have recognized
  • Data on damages expectations and anchoring
  • Testing of voir dire questions and jury selection criteria

Types of Jury Research

Informal Focus Groups

Gather 6-12 people, present an abbreviated version of both sides, and facilitate a discussion. This is the most cost-effective form of jury research and provides qualitative insights into case themes and juror attitudes.

Mock Trial / Mock Jury

A more formal simulation with 12-24 mock jurors who hear abbreviated presentations from both sides and deliberate to a verdict. This provides:

  • Quantitative data (verdict amounts, liability percentages)
  • Deliberation dynamics (which arguments drive the discussion)
  • Identification of juror leaders and followers

Online Jury Research

Various services allow you to test case themes, arguments, and damages ranges with online panels. Less expensive than in-person research, but limited in the depth of feedback.

When to Invest in Jury Research

  • High-value cases (over $1 million): The investment in jury research is easily justified
  • Cases with significant weaknesses: Test how jurors react to your worst facts
  • Unusual or novel case theories: Test whether jurors can follow your legal theory
  • Venue concerns: Test attitudes in the specific county where you will try the case
Practice Tip: Even in modest-value cases, an informal focus group with friends, family, or office staff can reveal blind spots. Present the defense's best arguments and see how laypeople respond. The feedback is not scientific, but it is far better than going to trial without any outside perspective.

Shadow Juries

What Is a Shadow Jury?

A shadow jury consists of individuals recruited to match the demographic profile of the actual jury who sit in the courtroom during trial and provide real-time feedback on how the case is being perceived.

Benefits

  • Real-time feedback: Shadow jurors report their impressions each day, allowing you to adjust strategy mid-trial
  • Witness evaluation: Learn which witnesses resonated and which fell flat
  • Argument testing: Test closing argument themes on the shadow jury before delivering them to the real jury
  • Damages calibration: Get feedback on damages expectations throughout the trial

Practical Considerations

  • Shadow juries are expensive (typically $5,000-$15,000+ for a week-long trial)
  • They are most cost-effective in high-value cases where the verdict differential justifies the investment
  • Shadow jurors must be instructed not to communicate with actual jurors
  • Feedback is qualitative and based on a small sample -- do not treat it as definitive

Jury Selection Checklist

Pre-Trial Preparation

  • [ ] Research the assigned judge's voir dire practices and time limits
  • [ ] Draft and submit jury questionnaire (if appropriate)
  • [ ] Prepare voir dire questions tailored to case-specific issues
  • [ ] Identify case-specific favorable and unfavorable juror profiles
  • [ ] Conduct focus group or mock jury (if case value warrants)
  • [ ] Prepare juror rating system for tracking during selection
  • [ ] Research CCP 231.7 requirements and document non-discriminatory reasons for anticipated challenges

During Selection

  • [ ] Review questionnaire responses and rate jurors before oral voir dire
  • [ ] Listen actively -- take notes on juror responses, body language, and interactions
  • [ ] Build rapport with the entire panel, including unfavorable jurors
  • [ ] Identify and develop cause challenges before using peremptory challenges
  • [ ] Track peremptory challenge usage (yours and the defense's)
  • [ ] Document specific, non-discriminatory reasons for every peremptory challenge
  • [ ] Object to defense strikes that may violate CCP 231.7
  • [ ] Evaluate replacement jurors before exercising challenges
  • [ ] Make record of any restrictions on voir dire time or scope

Post-Selection

  • [ ] Confirm jury composition meets your minimum requirements
  • [ ] Note any juror concerns to monitor during trial
  • [ ] Adjust opening statement themes based on jury composition
  • [ ] Brief your client and witnesses on jury composition (as appropriate)
See also: Voir Dire | Opening Statements | Closing Arguments | Trial Practice

Cross-References

Common Questions

How are jurors selected in California?

In California, a panel of prospective jurors is called to the courtroom. The judge and attorneys question them during voir dire to identify bias. Jurors can be removed through challenges for cause (for demonstrated bias) or peremptory challenges (limited in number, for any non-discriminatory reason). The process continues until 12 jurors and alternates are seated.

What is CCP 231.7?

CCP 231.7 is California's updated framework for challenging peremptory challenges that appear to discriminate based on race, gender, ethnicity, or other protected characteristics. It strengthened the original Batson/Wheeler framework by focusing on whether the challenge would disproportionately affect members of a protected group.

Should we use a jury consultant?

In high-value cases, a jury consultant can be extremely valuable. They can help with juror questionnaire design, identify juror profiles that are favorable or unfavorable to your case, and provide real-time analysis during voir dire. For catastrophic injury and wrongful death cases, the investment often pays for itself many times over.

What are focus groups?

Focus groups are mock trials or case presentations conducted before actual trial with members of the community who fit the jury pool profile. They help attorneys test their case themes, identify weaknesses, evaluate damages arguments, and refine their trial strategy based on real feedback from people similar to potential jurors.

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Local Resources

  1. California Code of Civil Procedure § 222.5. Right to examine prospective jurors in civil cases.
  2. California Code of Civil Procedure § 231.7. New framework for Batson/Wheeler challenges.
  3. California Code of Civil Procedure § 225. Number of peremptory challenges in civil cases.
  4. Batson v. Kentucky (1986) 476 U.S. 79. Prohibition on racially motivated peremptory challenges.
  5. People v. Wheeler (1978) 22 Cal.3d 258. California's prohibition on discriminatory challenges.
  6. California Code of Civil Procedure § 229. Grounds for challenge for cause.