BY W. MATTHEW WILSONRecently, Verdict editorial board member Matthew Wilson sat down with his former colleague Allison Barnes Salter, who was elected to the Cobb County State Court bench in 2016. Judge Salter discussed some tips for voir dire and a few mistakes you might avoid when picking your next jury.
Q: What is the general process for jury selection in Cobb County State Court? Anything special that you do in your courtroom?
A: Procedures vary courtroom to courtroom. I would always suggest talking to the judge (at a pre-trial hearing) or the judge’s staff attorney about the judge’s preferences during jury selection. I usually prefer to handle general and individual questions at the same time unless I have a larger number of jurors in which case it is easier to do them separately.
I have found that in almost every case – big or small – it is important to give some sort of preliminary charge to the prospective jurors – even before the actual jury panel is selected. Jurors are naturally curious and sometimes inclined to research issues, locations, or parties at breaks. Given the wealth of knowledge now at a juror’s fingertips I find it helpful to lay out at the outset – before any questioning begins – why they must refrain from independent research. I will then give more detailed instructions to the jury actually chosen to hear a case regarding their duties and obligations during the trial.
Q: You were a practicing trial lawyer before being elected to the bench in 2016. What, if anything, have you learned about jury selection as a judge that you didn’t realize as a trial lawyer?
A: I don’t know of anything I have necessarily learned during the past year, but I will note that jury selection is probably the most important but least prepared part of most trials. Jury selection is very significant and sets the tone in a case. Attorneys want to accomplish several goals during this process: introducing themselves and their clients in a positive light, ferreting out the feelings and potential biases of individual jurors, and orienting them to the case. At the same time, attorneys need to be mindful of jurors’ time. Achieving success in all of these areas is a tall order and truly takes skill and practice. However, attorneys likely still spend the vast majority of their time on a case thinking and prepping about the substantive trial rather than jury selection. Taking that extra time to strategize and plan for jury selection pays huge dividends during jury selection by fostering a good atmosphere for the trial that follows.
Q: From your perspective, what are the challenges of jury selection in Cobb County, one of the state’s more conservative counties?
A: I do not think the challenges are any different than they are anywhere else. Wherever an attorney finds himself in court, the goal is the same – eliminate the jurors who you feel will not fairly and impartially consider your theory of the case. For the plaintiff, if choices of venue are open – this may be a factor for where to file the suit – or managing client expectations of any potential outcome. I think most trial lawyers would agree that the jury-strike process is less about creating an ideal jury than it is about avoiding jurors you think could never be receptive to your client or your case. So lawyers are just seeking the “least bad” jury panel for your case.
Q: What questions are “in bounds” during voir dire in your courtroom?
A: Generally, I take a very hands off approach to voir dire. The statute gives attorneys the right to question jurors about a variety of topics – any interest in the case, relationship or acquaintance with the parties or attorneys, bias, and any religious, social, or fraternal connections of the juror – just to name a few. See O.C.G.A. § 15-12-133. Questions asked by attorneys must be justifiable in terms of the topics in this statute.
Q: What questions are NOT in bounds?
A: The answer to this question goes along the lines of “I know it when I see it” which I realize is not great guidance to a practitioner. I would say for sure any topic excluded by motions in limine are obviously out of bounds. Additionally, any question which even intimates about the possibility of insurance paying for any potential judgment is equally out of bounds.
Q: How far can a plaintiff’s lawyer go to rehabilitate jurors during voir dire?
A: A trial judge’s main duty during the course of a trial is to ensure a fair and impartial proceeding. Decisions during jury selection on the issue of cause are often the most significant made during a trial. Most importantly, if a juror expresses an inability to be fair to one side, the court cannot rely on a simple talismanic rehabilitation question alone to rehabilitate a juror. The best practice – in addition to any rehabilitation question asked by the court – is to permit further voir dire by the parties on the issue of the confessed bias. A court’s ultimate decision should be to ensure the fairness of a trial but at a minimum must permit a full opportunity for the parties to examine the juror.
Q: Anything you’d like to see lawyers do LESS of during voir dire?
A: Attorneys need to be as mindful of a juror’s time as possible given the case. I have seen cases where jury selection takes considerably longer than the evidence portion of the entire trial. Jurors will not understand why the case was considerably extended for this reason and may feel like the attorney does not value their time.
Q: Anything you’d like to see lawyers do MORE of during voir dire?
A: Attorneys need to be aware of the amount of advance notice that the jury administrator might need if a case warrants a larger than normal pool of potential jurors to question. For a traditional civil case, twenty-seven jurors are sent to a courtroom from which the twelve (or thirteen) are chosen. In larger cases, judges try to coordinate with the attorneys in advance for more potential jurors to be summoned. Attorneys who want more than twenty-seven jurors must communicate this need at least seven to eight weeks before the expected trial date in order to ensure that the proper number of summons are issued. ●
W. Matthew Wilson is a partner at Akin & Tate, P.C. where his practice focuses on general litigation and appeals. Matthew was named a 2017 and 2018 Super Lawyers Rising Star, is a 2016 graduate of the GTLA LEAD Program, and currently serves on the Verdict Editorial Board. He can be reached at firstname.lastname@example.org.