Chapter 2 Before Voir Dire

• Library: Picking a Civil Jury: A Guide for Illinois Trial Lawyers (2015 Ed.)

CHAPTER 2 - BEFORE VOIR DIRE

I. The Jury Demand

"A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his or her answer. Otherwise, the parties waive a jury . . . ."
73 ILCS 5/2-1105.

If you represent a plaintiff, you must file a jury demand contemporaneously with filing the initial complaint. If the clerk requires a separate jury demand, this document should be filed with the complaint, which should expressly state after the Ad Damnum, "Plaintiff demands trial by jury." When filing your suit, be sure the proper fees for a jury trial have been paid. If any question arises as to whether a jury demand was properly made, the court will certainly be interested in whether the party asserting the right to jury trial paid the required fee.

If you represent a defendant who wants a jury to hear the case, you must file a jury demand no later than the filing of the Answer. As defense counsel, you will usually file a separate "Jury Demand" contemporaneously with the Answer, which will conclude with the statement "Defendant Demands Trial by Jury."

In the absence of a timely written demand, the court will find a waiver of the right to jury trial unless: (1) there is a showing of good cause; (2) the opposing party will not be prejudiced; and (3) there is no inconvenience to the court.¹ If you intend to file an action at law (or answer) without a jury demand, you should first discuss the propriety of waiving a jury with your client. Only after a thorough discussion of the client's intent to waive a jury and after written confirmation of the client's decision to waive a jury should you proceed without a jury demand. If there is any uncertainty, you should file your jury demand and consider later withdrawing the demand and waiving your client's right to trial by jury.

II. The Importance of Preparing for Jury Selection

"It frequently appears that too little effort is put into the jury selection process, when it should be a compilation of all the work that led up to the trial."
Indiana Civil Litigation Review, Vol. 1, No. 1 (2006).

In anticipation of jury selection, you must consider the type of person you would like to serve on the jury and how you can use jury selection to begin the process of persuading all the jurors that your client should prevail. To this end, you must contemplate the case theme, the expected impressions to be made by your witnesses, the jury instructions likely to be used, and the strategy expected from your opponent.

Having established a theme or theory of the case, you must define the juror who would be ideal for your case. Introductory remarks and voir dire questions should be formulated to identify such jurors. Personality types likely to reject the theme must be identified and challenged. Also, your comments and questions in the jury selection process should be prepared with the objective of either indoctrinating the jurors with concepts and ideas that will bring the juror to your side or, at least, lay the groundwork for the juror's acceptance of your theory of the case. And, with an understanding of the likely jury instructions, you can determine whether a prospective juror will abide by the instructions that favor your case.

While you are precluded from overt efforts of indoctrination or discussions concerning jury instructions, you can nevertheless obtain (and convey) information that touches upon the applicable law and serves to indoctrinate the jury. For example, in a case involving personal injuries alleged by the plaintiff and where the defendant asserts plaintiff's contributory negligence (e.g., failing to keep a proper lookout for defendant's vehicle) as an affirmative defense, defense counsel may not be permitted to ask a prospective juror "will you follow Judge Smith's instruction requiring the plaintiff to keep a proper lookout for cars exiting their parking space." But, counsel should be permitted to ask about the juror's impressions and opinions about the idea that plaintiff, too, is subject to certain standards of conduct about which the Judge will instruct them. For example:

Q. "Do you have any disagreement with the requirement that all drivers must keep a proper lookout for other cars?" OR
Q. "Would you agree that someone driving through a parking lot should do so at a speed slow enough so he could stop quickly?"

With this line of questioning, defense counsel may be able to identify prospective jurors who, perhaps, have always been perturbed about the carelessness with which many drivers pull out of their parking spot into the path of others. Also, counsel will be better able to identify those who appreciate that one pulling out from a parking spot often cannot see the approaching traffic. Thus, everyone should travel cautiously and slowly through parking lots and be prepared to stop and accommodate others who are backing out of their space. Finally, with this line of questioning, counsel can place emphasis on the forthcoming jury instructions that enunciate the principles that plaintiff, too, must use due care, keep a lookout for others in the parking lot, and travel at a speed that is not too fast for the conditions.

In preparation for jury selection, you must also consider the expected tactics of your opponent. Motions in limine should reflect your assessment of your opponent's aggressiveness. If you expect many "inquiries" which "cross the line," your motion in limine should address these concerns.

In short, in preparing for trial, you should thoroughly prepare for jury selection and use the process to select the right jurors for the case, win their respect, and persuade them to render a verdict favorable to your client.

III. Who is Summoned for Jury Duty?

"I vote and I do jury duty."
-Christopher Hitchens

Those summoned for jury duty are chosen from a list that combines names of: (1) registered voters; (2) driver's license holders; (3) Illinois disabled person identification card holders; (4) Illinois iden-tification card holders; and (5) unemployment insurance claimants.² When these prospective jurors are summoned for jury duty, they receive questionnaires that seek basic information, including their general qualifications and information about any hardship that jury service may cause due to health problems, military service, family issues, work, or school.³

Before walking into the courtroom with the venire, prospective jurors have been through an orientation of sorts, either receiving a handout and/or viewing a video presentation.⁴ Many of the themes discussed in these videos can be utilized in voir dire, opening statements, and closing arguments.

IV. Impaneling the Jury

"When a trial is ready to begin, the judge sends the deputy sheriff to the jury room to request potential jurors. The judge generally requests a group of 6,12,18 or 36 jurors. Jurors, chosen by panel number, are sent to the courtroom to be questioned [in panels] by the judge and the attorneys to determine the juror's ability to keep an open mind and be fair."
Circuit Court of Cook County Website, "The Trial Process."

In criminal cases, it is mandated that the parties "shall pass upon and accept the jury in panels of four."⁵ This means that from all the jurors sent to the courtroom, four are seated within the jury box to participate in voir dire. The State accepts the panel in toto or exercises its challenges to excuse all or some of the panelists. When a panel of four has been accepted by the State, the panel is tendered to the defense.

In civil cases, the process is usually the same. The court has discretion to impanel any number of jurors to be passed upon and accepted by the parties. Acceptance or rejection of panelists begins with the plaintiff. Most judges will impanel four prospective jurors at a time, as in criminal cases. However, many judges will impanel six, and some as many as twelve or even eighteen. As discussed below, with the reduction of the number of jurors in civil case to 6, our trial courts should abandon the practice of impaneling more than 4 prospective jurors during voir dire.

V. The Judge's Role - Supreme Court Rule 234

"The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching upon their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, and shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the

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