By Dawn R. Solowey and Lynn A. Kappelman
BOSTON — At a time when the #MeToo movement is dominating headlines, everyone is talking about sexual harassment — around the water cooler, around the family table, and online.
Media coverage of harassment is pervasive, and #MeToo posts regularly go viral on social media. Often, the issue is intertwined with partisan and divisive political views.
In this environment, a central task for us as trial lawyers handling sexual harassment cases is to use the jury selection process to help empanel a fair and impartial jury that will hear a specific case with an open mind. Here are our top five strategies for using voir dire to ensure a fair and unbiased panel.
Avoid stereotypes based on demographics. People sometimes assume that trial lawyers would choose a jury for a sexual harassment case based largely on demographic information such as gender or age. But that is not a smart or effective strategy.
As a threshold matter, a peremptory strike of a juror that even appears to be based on any protected classification risks a “Batson challenge” under the seminal U.S. Supreme Court case Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny. Further, selecting a jury for a sexual harassment case based on demographics is also strategically ineffective.
An effective voir dire goes beyond demographic information to understand what pre-existing views, if any, potential jurors have on the issues, and whether they can neutrally evaluate the evidence to reach a just conclusion.
Rather than assume a set of views based on characteristics like gender or age, it is far smarter and more precise to ask probing questions that get directly at each prospective juror’s actual beliefs and biases.
Understand the potential juror’s view of sexual harassment claims. An effective voir dire will inquire into potential jurors’ views about sexual harassment claims and litigation. This step is especially important at a time when sexual harassment lawsuits are so culturally prominent that nearly everyone has an opinion on the issue.
Ask how potential jurors feel about sexual harassment lawsuits and the people who file them. Ask if they believe that all sexual harassment suits have merit. Ask whether they believe that a suit must have merit if it has reached the point of a jury trial; this is a common misconception. Ask if they believe that anyone who brings a harassment suit is entitled to at least some money damages.
If allowed follow-up, ask those potential jurors to explain why they believe as they do. These questions allow you to understand what biases the prospective jurors might have as to harassment suits generally that may compromise their ability impartially to weigh the claims and defenses at issue in a particular case.
Inquire as to life experience with sexual harassment. It is also critical to ask what life experience the prospective jurors may have with sexual harassment. Many jurors will have first-hand experience of sexual harassment, and even more will have a family member or close friend who has suffered harassment.
Asking them, sensitively and ideally individually to ensure privacy, to explain that experience, and their feelings about the experience, will give you some insight into what strong beliefs they may hold on the issue. Ask if they reported the harassment and with what results.
But the goal here is not to attempt to strike anyone who has had any experience with harassment, which would be overbroad and completely impractical. Instead, the ultimate question is whether there is anything in the person’s life experience that would render that person unable to give fair consideration to a specific sexual harassment claim.
Ask that question directly; for example: “Is there anything about your life experience that would cause you to favor or take the side of the plaintiff just because she is suing for sexual harassment?”
Take great care to show respect for the prospective juror’s experience and for the person’s privacy as you probe these sensitive topics, since a juror may resent an overly invasive question and, if seated, hold it against you and your client.
Inquire as to general attitudes about harassment. In addition to personal experience with harassment and views about harassment lawsuits, it is useful to inquire as to attitudes about sexual harassment more generally.
Do they believe that allegations of sexual harassment are always true? Do they believe that all or most of the accused who deny allegations of harassment are lying?
Tailor the questions to the facts of your case. For example, in a case with a male alleged harasser, ask whether they believe that most or all men have engaged in sexual harassment at work. A juror’s general biases about sexual harassment can easily infect a juror’s view of the plaintiff, defendants and allegations in a specific case.
Focus on uncovering jurors biased against your client. The best proposed voir dire will be focused and succinct. You are far more likely to persuade the judge to ask your proposed questions if you present a streamlined set of questions that are clearly focused on the claims at hand.
In drafting such targeted questions, remember that the goal is not to air all views about harassment but to uncover the potential jurors who are biased specifically against your client. Therefore, every question should be focused specifically on rooting out those jurors to set up a for-cause challenge, or to identify those on whom you may want to use your limited peremptory strikes.
If you represent the defense, ask whether the fact that this is a sexual harassment case causes the prospective juror to feel one way or the other about the company or individual defendants. Ask whether, if the evidence justifies it, the juror could find in favor of the defense just as easily as the plaintiff. Jurors are often surprisingly candid about their biases, especially if strongly held.
Given how many members of the public have personal experience with harassment, or strong views on the subject, the process of empaneling a jury can be more time-consuming in a sexual harassment case than in other types of employment matters.
But following the above five principles offers a focused strategy for empaneling a juror who is ready to hear your case with an open mind.
Lynn A. Kappelman and Dawn R. Solowey are partner and senior counsel, respectively, in the Boston office of Seyfarth Shaw. Both are members of the firm’s national trial team, which Lynn. Kappelman co-chairs.