By: Sarah V. Toraason, Murray W. Camp, Emily McDonald, Ph.D. and Jason Bloom1
The main purpose of voir dire is to expose juror bias. Ask ten different lawyers what questions successfully unmask bias in the jury panel and you will likely get ten different responses, such as information about a potential juror’s employment background, nationality, or political affiliation. In a will contest or family fiduciary trial, however, there is one category of information that trumps all others: the personal (and often familial) experiences of each potential juror in relation to central fact issues. Great weight should be placed on discovering the potential juror’s personal connection with trial specific themes as these dynamics inform how he or she processes the narrative of what happened in the case.
Failure to examine potential jurors for biases adverse to the case is a strategic mistake that can ultimately become outcome determinative. A six-person jury leaves little room for error. Although the precise recipe of topics to investigate varies from case to case, trial counsel must employ the right tools in jury selection to expose jurors that possess experiential biases hostile to the client’s trial narrative.
Conventional wisdom regarding jury selection often suggests empaneling jurors with a “blank slate,” meaning ideal jurors have no previous experience or expertise regarding the subject matter. There are no blank slates in probate cases because everyone has a history of familial experiences; and good or bad, these experiences significantly determine the lens through which each juror will view the individual claims of the parties.
Jurors are like icebergs. The probate litigator should be prepared to take a deep dive below the water level to uncover what is likely to influence decision-making. Pre-existing biases have profound influences on how a particular juror decides which party should prevail. The question is not whether a potential juror has a bias, rather the more important queries are aimed at learning the degree to which a potential juror possesses a particular bias adverse to your side. Why is this so important? Because jurors write their own story of what happened in the case. When there are gaps in that story, jurors fill in the gaps with what they know from their own life experiences. In a will contest or family fiduciary case, those life experiences usually involve the juror’s own family, or that of a close family friend.
Jurors are not lawyers. They are laypersons, and it is unreasonable to expect them to objectively listen to all the evidence in a case and return a rational, objective decision based on the law. This is especially true in will contests where emotion, rather than reason, is a strong driver in decision-making. Jurors, almost universally, impose their own familial experiences onto the themes of the case, and this turns processing toward the personal (emotional reasoning), and away from impartial (fact-based reasoning). For example, if a juror’s mom’s dementia progressed quickly into incapacitation, that juror will tend to apply that experience to the pending case. Similarly, if alcoholism is a case theme, the son of the alcoholic may become the “expert” during deliberations and that juror’s specific experience is likely to influence decision making.
Key factors to decision-making that are colored by familial history may include: parenting style, sibling relationships, birth order, parental approval/disapproval, perceived or actual slights, family violence, addictive and other mental health disorders, and family dysfunction such as neglect or psychological abuse. The family is a significant social institution that shapes the person, thus the events and experiences unique to the individual form the bases of their psychological and social DNA. In turn, those familial events and experiences — as they relate to the trial themes of a probate case — become the critical keys to revealing juror biases. Other factors, such employment background, political affiliations, and socio-economic status, have much less impact on juror decision-making in the probate trial.
When preparing for voir dire in a will contest, family fiduciary, or other probate case, the trial lawyer must make every attempt to evaluate each potential juror’s responses to major trial themes. When time constraints or other conditions make this infeasible, ask broadly worded initial questions about critical trial themes, and then, addressing specific members of the venire panel, drill down using targeted follow-up questions to unveil particular familial experiences and how they resonate within a given case theme. Remember, it is the potential juror’s own familial experiences that will likely disclose the bias, both positive and negative. If you never understand a juror’s specific familial experiences, you will never really know how — not if — that juror is biased.
1 Dr. McDonald and Jason Bloom are principals of Bloom Strategic Consulting, a Texas based jury consulting firm.
An experienced litigation attorney, Sarah Toraason has ten years’ experience representing clients in complex commercial disputes involving securities, contract, business tort, insurance coverage, ERISA, and intellectual property claims in state and federal courts as well as arbitration. Sarah now applies her extensive business litigation background to representing clients in estate, trust, and guardianship disputes. She strives to be a strong advocate for her clients and approaches every matter with the goal of producing a successful and efficient resolution of their case.
Sarah graduated from the University of Richmond with a B.A. in Music and Leadership Studies and received her M.B.A. and M.A. from the University of Cincinnati. She earned her J.D. from William & Mary School of Law. After graduating from law school, Sarah served as a law clerk to the Honorable Henry Coke Morgan, Jr., of the United States District Court for the Eastern District of Virginia. She then clerked for the Honorable Fortunato P. Benavides of the United States Court of Appeals for the Fifth Circuit in Austin, Texas.