The right to a jury trial remains one of the most fundamental principles of the American legal system. Yet, the legitimacy of that right depends not simply on the presence of a jury, but on the fairness and impartiality of the individuals who comprise it. Increasingly, both research and trial advocacy experience demonstrate that traditional voir dire procedures often fall short of achieving this core constitutional goal. To meet modern expectations of fairness and safeguard the integrity of civil trials, both courts and litigants alike must embrace a more exact approach to jury selection.
In a comprehensive study, Campbell et al. (2020) conducted an empirical examination of civil voir dire practices, analyzing data from over 2,000 jurors across multiple case simulations. The findings cast doubt on the efficacy of minimal or judge-led voir dire. Specifically, the research indicated that jurors harboring strong predispositions, such as skepticism toward civil lawsuits or entrenched views about damages, were rarely identified through limited questioning. Jurors often remained seated even after expressing partiality. Perhaps even more troubling, jurors who initially expressed bias frequently claimed they could "set it aside" when asked, a response that courts often accept at face value. However, research has found that such reassurances are generally unreliable, noting that "even strongly worded instructions, written and from the judge, cannot cage the biases" (Campbell, p. 4).
Another perspective offered by Aveni (2024), argues that voir dire must be structured to uncover not only apparent bias but also subtle judgments and life experiences that influence how jurors may interpret evidence. He notes that jurors' views about litigation, corporations, personal responsibility, and damages frequently go unexplored when voir dire is conducted in either a cursory or overly controlled manner. Aveni advocates for attorney-led, conversational voir dire that encourages jurors to reveal their genuine beliefs in a non-threatening and reflective dialogue.
Research has shown some important themes. First, courts should reject the assumption that jurors can accurately self-diagnose or reject their biases simply because they say they can "be fair.” This presumption, while convenient, is undermined by behavioral science and practical experience alike. Second, attorney involvement is not only beneficial but also essential. Attorneys are far more likely than judges to recognize case-specific attitudes that may influence juror decision making, particularly when complex or emotionally charged issues are at play. Finally, voir dire must be given adequate time. Arbitrary time limits imposed in the interest of efficiency risk obscuring the very information that voir dire is designed to uncover.
For defense counsel, these findings hold noteworthy significance. In many civil cases, especially those involving corporate defendants or insurance carriers, the jury pool may contain individuals predisposed to view the defense through a lens of distrust or even punitive intent. General questions about fairness will not surface these biases; instead, counsel must ask targeted, case-relevant questions that explore jurors' attitudes about corporate responsibility, litigation culture, and damage awards. For example, asking how a juror feels about awarding money for non-economic damages or whether they believe "most lawsuits are legitimate" can provide early indicators of juror leanings. When such views emerge, counsel must be prepared to challenge rehabilitation efforts that merely elicit verbal assurances of neutrality.
Moreover, research suggests that counsel should take an active role in shaping voir dire structure. This includes requesting sufficient time for individual questioning, questionnaires, and pushing back against overly rigid judge led formats. Arguing for cause strikes when responses reveal deeply held views that threaten impartiality. As both Campbell et al. (2020) and Aveni (2024) observed, the voir dire process is not simply about removing "bad" jurors. It is about assembling a panel capable of evaluating evidence without distortion from preexisting beliefs. In that sense, voir dire serves not just the parties, but the broader interests of justice.
As courts continue to wrestle with increasing case complexity as well as the specter of nuclear verdicts, the need for meaningful voir dire becomes even more vital. The consequences of seating a biased jury are not only difficult to remedy post-verdict, but they may also wear down the public’s confidence in the civil justice system itself. Therefore, it is imperative upon both judges and trial lawyers to treat voir dire not as a procedural formality, but as an imperative deserving of time, thoughtfulness, and strategic depth.
In sum, the evidence is unequivocal: current voir dire practices in many jurisdictions are inadequate to detect the types of biases that meaningfully affect trial outcomes. A shift toward extended, attorney-led, and case-tailored voir dire is not just the best practice, it is a necessary evolution to meet the standards of fairness and impartiality that our legal system promises.
References
Aveni, C. (2024). Building a better voir dire. American Bar Association. https://www.americanbar.org/groups/litigation/resources/litigation-news/2024/winter/building-better-voir-dire/
Campbell, J., Salerno, J., Phalen, H., Bean, S., Hans, V., Ross, L., & Spivack, D. (2020). An empirical examination of civil voir dire: Implications for meeting constitutional guarantees and suggested best practices (Working Paper No. 20-11). University of Denver Sturm College of Law. https://ssrn.com/abstract=3584582
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