Voir Dire in California.

Overview

Jury selection is where trials are won or lost. This guide covers how your attorney identifies favorable jurors and removes those who cannot be fair.

California Jury Selection Framework

Statutory Authority

Jury selection in California civil cases is governed by CCP sections 190-237 and California Rules of Court, Rule 3.1540. Key provisions:

• CCP 222.5: Governs voir dire examination in civil cases. Counsel for each party has the right to examine prospective jurors, and the examination is "to be conducted orally and directly by counsel for each party."
• CCP 225-226: Govern challenges for cause and peremptory challenges.
• CCP 231-231.7: Govern the exercise and limitations on peremptory challenges, including the Batson/Wheeler framework now codified under CCP 231.7 (effective January 1, 2022).
• CCP 232: Requires juror identifying information to be kept confidential unless good cause is shown.

Number of Jurors and Challenges

Item	Standard Civil Case
Jury size	12 jurors (CCP 220)
Alternate jurors	Court discretion, typically 1-4 (CCP 234)
Peremptory challenges per side	6 (CCP 231(c))
Additional peremptories for alternates	1 per alternate
Challenges for cause	Unlimited

The Selection Process

Most California judges use the "six-pack" or "struck jury" method, where a panel of prospective jurors fills the jury box, both sides question them, exercise challenges, and the process repeats until 12 jurors (plus alternates) are selected and accepted.

The Purpose of Voir Dire

What You Are Really Doing

Voir dire serves three simultaneous purposes:

1. Information Gathering: Learn about jurors' backgrounds, experiences, beliefs, and potential biases that may affect their ability to be fair.

1. Juror Deselection: Identify jurors who are hostile to your case and remove them through challenges for cause or peremptory challenges. Note: you are primarily deselecting bad jurors, not selecting good ones.

1. Persuasion and Rapport: Begin the process of building trust with the jury. Voir dire is your first real interaction with the people who will decide your case. How you conduct yourself matters enormously.

Hardship Excusals

Types of Hardship

Before substantive voir dire begins, the court typically screens for hardship. Common hardship claims include:

• Financial hardship: Self-employed individuals, hourly workers, small business owners who will suffer significant economic harm from jury service
• Medical hardship: Health conditions that make extended service difficult
• Caregiving obligations: Primary caregivers for children, elderly parents, or disabled dependents
• Pre-planned travel: Vacations, business travel, or events that cannot be rescheduled
• Extreme distance: Long commute times that make daily attendance burdensome

Strategic Considerations

Pay attention during hardship screening. Jurors who claim financial hardship may:

• Be more sympathetic to a plaintiff seeking economic damages (they understand financial struggle)
• Be more resentful of being forced to serve (they may rush to verdict)
• Be more conservative in awarding damages (they relate to the cost)

Challenges for Cause

Grounds for Cause Challenges

Under CCP 225-226, a juror may be challenged for cause if they:

• Have a bias or prejudice for or against a party (CCP 225(b)(1)(C))
• Have a preconceived opinion about the case that would prevent impartiality
• Have a relationship with a party, attorney, or witness
• Have a financial interest in the outcome
• Have been a juror or witness in a similar case involving the same parties
• Are unable to understand English sufficiently to follow the proceedings
• Have a state of mind that would prevent them from acting impartially

How to Establish Cause

To succeed on a cause challenge, you must establish through questioning that the juror cannot be fair and impartial. The key is getting the juror to acknowledge their bias clearly:

Q: You mentioned that you believe lawsuits are generally filed by people who are not really hurt. Is that fair to say? A: I think a lot of them are, yes. Q: Given that belief, do you think you could set that aside and evaluate this case based solely on the evidence? A: I would try, but I am not sure I could. Q: So it would be difficult for you to start this case with a completely open mind? A: Honestly, yes, it probably would be.

Unlimited Challenges

Unlike peremptory challenges, challenges for cause are unlimited. Use them aggressively. Even if the challenge is denied, you have educated the judge about the juror's bias, which may influence the court's decision on peremptory challenges.

Peremptory Challenges and Batson/Wheeler

Peremptory Challenges in California

Each side in a standard civil case receives 6 peremptory challenges (CCP 231(c)), which may be exercised without stating a reason, subject to constitutional limitations.

CCP 231.7: California's New Anti-Discrimination Framework

Effective January 1, 2022, CCP 231.7 replaced the traditional Batson/Wheeler analysis with a broader, more protective framework. Key provisions:

Presumptively Invalid Reasons (CCP 231.7(e)):

The statute lists specific reasons for peremptory challenges that are presumptively invalid because they have historically been associated with discrimination:

• Having prior contact with law enforcement
• Expressing distrust of law enforcement
• Having a family member who was convicted of a crime
• Living in a high-crime neighborhood
• Expressing a belief that the criminal justice system is not fair
• Having a close relationship with people who have been arrested
• Appearance, dress, or demeanor
• Lack of employment or underemployment

The Objection Procedure:

1. A party objects to a peremptory challenge as discriminatory
2. The court considers whether an objective observer could view the challenge as discriminatory based on the juror's membership in a protected class
3. If so, the burden shifts to the challenging party to provide a nondiscriminatory reason
4. The court determines whether the reason is valid under the totality of circumstances

Strategic Use of Peremptory Challenges

With only 6 peremptory challenges, strategic allocation is critical:

• Prioritize: Identify the jurors who pose the greatest risk to your case and reserve challenges for them
• Exhaust cause challenges first: If you can remove a juror for cause, save your peremptory
• Anticipate the defense: Consider which jurors the defense will challenge. Do not waste a peremptory on a juror the defense will remove
• Back-strike wisely: In some California courts, you may back-strike (challenge a previously accepted juror). Know your court's practice

Jury Questionnaires

Standard Court Questionnaires

Most California courts use a standard juror questionnaire that collects basic demographic information. These questionnaires typically include:

• Name, age, city of residence
• Occupation and employer
• Spouse/partner's occupation
• Education level
• Prior jury service
• Prior involvement in lawsuits
• Law enforcement connections
• Whether the juror has been a party to a personal injury claim

Using Questionnaire Information

Review questionnaires before voir dire to:

• [ ] Identify jurors with prior litigation experience (good or bad)
• [ ] Identify jurors with healthcare, insurance, or legal industry connections
• [ ] Note educational backgrounds (may indicate analytical vs. emotional decision-making tendencies)
• [ ] Flag jurors with law enforcement connections (often defense-leaning in PI cases)
• [ ] Identify jurors who have been injured or had family members injured
• [ ] Note occupation patterns (engineers and accountants may be more conservative on damages; teachers and social workers may be more empathetic)

Supplemental Questionnaires

When to Request a Supplemental Questionnaire

For high-value or complex cases, consider requesting a supplemental jury questionnaire tailored to your case. File a motion or stipulation before trial requesting that the court distribute a supplemental questionnaire.

Content for a PI Case Supplemental Questionnaire

Include questions addressing:

• Attitudes toward lawsuits and the civil justice system
• Experience with personal injuries (their own or family members')
• Experience with healthcare and medical treatment
• Views on the insurance system
• Familiarity with the parties, witnesses, or attorneys
• Media exposure to tort reform messaging
• Attitudes toward monetary compensation for pain and suffering
• Experience with the specific type of accident at issue (auto, premises, etc.)
• Attitudes toward expert witnesses

Sample Supplemental Questions

• "Do you believe there are too many lawsuits in America today? If so, explain."
• "Have you or a family member ever been involved in a personal injury claim? Describe."
• "Do you have any beliefs about what constitutes a 'fair' amount of money for pain and suffering?"
• "Have you ever served on a jury that returned a verdict? What was the outcome?"
• "Do you believe that most people who claim to be injured in accidents are exaggerating?"

Conducting Effective Voir Dire

The Conversational Approach

The most effective voir dire does not feel like an interrogation. It feels like a conversation. Jurors are nervous, unfamiliar with the process, and often reluctant to speak openly. Your job is to create an environment where they feel comfortable sharing honestly.

Techniques for creating comfort:

• Introduce yourself warmly. "Good morning. My name is [name], and I represent Maria Garcia in this case. I know this process can feel unfamiliar, so I want to start by saying there are no wrong answers here."
• Normalize difficult topics. "We are going to talk about some things that might feel personal. I promise I am not trying to embarrass anyone. I just need to understand how your experiences might affect how you see this case."
• Use open-ended questions. "Tell me about your experience with..." is better than "Have you ever...?"
• Listen actively. Nod, make eye contact, and follow up on what jurors say. Do not just run through a list of questions.
• Thank jurors for sharing. "Thank you for being honest about that. I really appreciate it."

Key Topic Areas for PI Voir Dire

1. Attitudes Toward Lawsuits

"Does anyone here believe that there are too many lawsuits in our country? [Hands.] Can you tell me more about what you mean by that?"

"Have you ever heard the term 'frivolous lawsuit'? What comes to mind when you hear that?"

2. Attitudes Toward Money Damages

"In this case, we are going to ask for money to compensate Maria for her injuries. Does anyone have a concern about large monetary awards in personal injury cases?"

"Is there a number that would make you uncomfortable, regardless of the evidence?"

3. Experience with Injuries and Medical Treatment

"Has anyone here, or someone close to you, ever been in a car accident? How did that experience affect you?"

"Has anyone here dealt with chronic pain? What was that like?"

4. Insurance Industry Connections

"Does anyone work for an insurance company or have close family members who do?"

"Does anyone here believe that lawsuit verdicts cause insurance premiums to go up?"

5. Burden of Proof

"In this case, the judge will tell you that Maria only needs to prove her case by a 'preponderance of the evidence' -- more likely than not. Is there anyone who would require more proof than that?"

6. Following the Law

"The judge will instruct you on the law, and you will be asked to follow those instructions. Is there anyone who, for any reason, would have difficulty following the court's instructions?"

The "Commitment" Technique

Use voir dire to obtain commitments from jurors that you can reference later:

"If the evidence shows that Maria has suffered permanent injuries, would you be willing to award her full compensation for a lifetime of pain?"

This is not argument -- it is qualification. You are asking jurors to commit to following the law, which you will hold them to in closing.

Juror Profiles for PI Cases

Generally Favorable Juror Characteristics

While every case is different, research suggests these general tendencies:

• Teachers and social workers: Often empathetic, value helping others
• Union members: Understand collective action against powerful entities
• Individuals with healthcare experience as patients: Understand pain and the medical system
• Parents of young children: Empathetic to injury and loss
• Artists and creatives: May be more emotionally engaged with the narrative
• Individuals who have been injured: Personal experience creates empathy

Generally Unfavorable Juror Characteristics

• Insurance industry employees: Built-in bias toward minimizing claims
• Corporate management: May identify with the defense, skeptical of large awards
• Engineers and accountants: May be overly analytical and skeptical of noneconomic damages
• Individuals with strong anti-lawsuit beliefs: Tort reform mindset
• Law enforcement (active or retired): May be rule-oriented and skeptical of plaintiff claims
• Medical professionals (doctors, nurses): May minimize injury descriptions or be skeptical of treatment necessity
• Individuals with no empathy for the specific injury type: Someone who dismisses chronic pain may be devastating in a soft tissue case

Detecting Bias

Implicit vs. Explicit Bias

Explicit bias is openly stated: "I do not believe in big verdicts." This is relatively easy to identify and can support a cause challenge. Implicit bias is unconscious and harder to detect. Jurors may not even be aware of their own biases. Look for:

• Body language that signals discomfort (arms crossed, lack of eye contact) when discussing money damages
• Hedging language: "I think I could be fair, but..." (the "but" is the real answer)
• Inconsistencies between questionnaire answers and oral responses
• Strong reactions to case themes during voir dire

Questions That Reveal Hidden Bias

• "On a scale of 1 to 10, how much do you agree with the statement: 'There are too many lawsuits in America'?"
• "Do you think people who go to court for personal injuries are usually genuinely hurt, or do you think some of them are exaggerating?"
• "If you were the plaintiff in a case like this, how would you feel about asking strangers to award you money for your pain?"
• "Do you think our legal system does a good job of compensating people who are injured by someone else's negligence?"

The "Can You Be Fair" Trap

Almost every juror will say they "can be fair." This is meaningless. The better question is: "Given what you have told me about your beliefs, would it be difficult for you to award a large amount of money for pain and suffering, even if the evidence supports it?"

Stealth Jurors

What Is a Stealth Juror?

A stealth juror is someone who conceals their true biases or agenda during voir dire in order to get on the jury. They may:

• Give socially desirable answers rather than honest ones
• Conceal prior litigation experience or industry connections
• Conceal strong opinions about lawsuits or damages
• Have a specific agenda (e.g., to prevent what they see as an unjust windfall)

Red Flags for Stealth Jurors

• Perfectly neutral answers to every question -- no real person has no opinions
• Overly eager to serve -- most jurors prefer not to serve; enthusiasm may signal an agenda
• Inconsistencies between questionnaire answers and oral responses
• Vague or evasive answers to direct questions
• Claiming no knowledge of or opinion about lawsuits despite being well-educated and media-aware
• Social media profiles that contradict voir dire answers (if discoverable)

Countermeasures

• Ask layered questions that approach the same topic from different angles
• Follow up on too-perfect answers: "Most people have some opinion about lawsuits. Can you share yours?"
• Watch body language and micro-expressions
• In high-value cases, consider hiring a jury consultant to observe the panel

Building Rapport with the Panel

Why Rapport Matters

Voir dire is the jury's first extended interaction with you. The impression you make here sets the tone for the entire trial. Jurors who like and trust you are more receptive to your case.

Rapport-Building Techniques

1. Be genuine. Do not be performative. Jurors can detect insincerity instantly.
2. Share selectively. Brief, appropriate self-disclosure builds connection: "I am a father of two kids, so I understand the concern about keeping our roads safe."
3. Use humor carefully. Gentle, appropriate humor relaxes the room. Forced humor backfires.
4. Remember names. Use jurors' names when asking follow-up questions. This signals respect and attention.
5. Validate experiences. When a juror shares something personal, acknowledge it: "That sounds like it was a difficult experience. Thank you for sharing."
6. Make eye contact with every juror. Do not focus only on the jurors you are questioning. The entire panel is watching.

Focus Groups and Mock Trials

When to Use Pre-Trial Jury Research

For high-value cases (generally $500K+ expected value), investing in pre-trial jury research is strongly recommended:

• Focus groups: Present a condensed version of the case to a mock jury panel and observe their reactions. Focus groups can reveal unexpected case weaknesses, test themes, and calibrate damages expectations.
• Mock trials: A more formal simulation with attorneys presenting both sides. Mock jurors deliberate and return verdicts. This tests the full trial presentation.
• Online surveys: Quick, inexpensive way to test attitudes about specific case issues (e.g., "how do you feel about people who sue after slip and fall accidents?").

What to Learn from Jury Research

• Which case themes resonate and which fall flat
• How jurors perceive the plaintiff's credibility
• What damages range jurors consider reasonable
• What defense arguments are most effective (so you can prepare counters)
• Which juror demographics or attitudes are most and least favorable

Voir Dire Checklist

Pre-Trial Preparation

• [ ] Review standard court questionnaires as soon as they are available
• [ ] Draft and file supplemental questionnaire motion (if using)
• [ ] Prepare voir dire outline organized by topic area
• [ ] Identify 3-5 key attitudes and experiences to probe
• [ ] Prepare challenges for cause based on questionnaire responses
• [ ] Research prospective jurors (to the extent permitted by local rules)
• [ ] Conduct focus group or mock trial (for high-value cases)
• [ ] Prepare juror seating chart template
• [ ] Review CCP 231.7 and prepare Batson/Wheeler documentation

During Voir Dire

• [ ] Arrive early and observe jurors as they enter the courtroom
• [ ] Take detailed notes on every juror's responses
• [ ] Note body language and nonverbal cues
• [ ] Use the seating chart to track juror information
• [ ] Exercise challenges for cause before using peremptory challenges
• [ ] Document nondiscriminatory reasons for all peremptory challenges (CCP 231.7)
• [ ] Prioritize deselection of the most dangerous jurors
• [ ] Build rapport throughout the process

Post-Selection

• [ ] Review the selected panel and identify potential foreperson candidates
• [ ] Note juror characteristics to reference in opening statement
• [ ] Adjust trial strategy based on the jury's composition
• [ ] Prepare a jury profile sheet for the trial team

Cross-References

• Trial Practice
• Opening Statements
• Jury Selection
• Jury Instructions
• Closing Arguments
• Evidence Rules

Common Questions

Sources & Legal Citations

1. California Code of Civil Procedure § 222.5. Voir dire examination rights in civil cases.
2. California Code of Civil Procedure § 231.7. New Batson/Wheeler framework for peremptory challenges.
3. California Code of Civil Procedure § 225. Number of peremptory challenges in civil cases.
4. Batson v. Kentucky (1986) 476 U.S. 79. U.S. Supreme Court prohibition on racially motivated peremptory challenges.
5. People v. Wheeler (1978) 22 Cal.3d 258. California's parallel prohibition on discriminatory jury challenges.
6. Johnson v. California (2005) 545 U.S. 162. Standard for establishing a prima facie case of discriminatory challenges.