You finally get the truth.
A juror admits that he thinks there are too many lawsuits.
Another says he is skeptical of people who sue.
Another tells you that, before hearing a single word of evidence, he already leans toward the defense.
Perfect.
You have done your job.
You exposed the bias.
And then you watch it disappear in about ten seconds.
Defense counsel leans forward and asks:
“You can still be fair and impartial, can’t you?”
The juror nods.
“Of course.”
And just like that, the defense lawyer announces to the Judge:
“Juror No. 4 said he can be fair and impartial.”
Rehabilitated.
Except there is one problem.
That is not the question.
In New York, the standard is whether the juror can be neutral and indifferent between the parties. CPLR section 4105.
That is a very different question from whether the juror thinks he is a fair person.
And if you wait until the cause challenge to make that distinction, you may already be too late.
What Does “Neutral” Really Mean?
Jurors sometimes hear the word “neutral” and think you are accusing them of being unfair or prejudiced.
You are not.
Neutral simply means that, before the contest begins, you do not favor one side over the other.
Think about a pie contest.
The two contestants are apple pie and cherry pie.
Before you taste either pie, I ask:
“Do you like cherry pie?”
You say:
“No. I have never liked cherry pie. I love apple pie.”
There is absolutely nothing wrong with that.
You are not a bad person.
You are not unfair.
You are not dishonest.
You simply have a preference.
But you probably should not be the judge of the apple-pie-versus-cherry-pie contest.
Why?
Because before either pie is placed in front of you, you are already leaning toward apple.
That is what we mean by neutrality in jury selection.
We are not asking whether the juror is a good person.
We are not asking whether the juror will try to do the right thing.
We are asking a much simpler question:
Before you hear the evidence, are you starting in the middle?
If you are already leaning toward one side, there is nothing morally wrong with that.
It just means you may not be the right juror for this particular case.
Kill the Rehabilitation Before It Happens
Do not let the defense define the issue.
Define it yourself during voir dire.
Tell the jurors what is coming.
“You are probably going to be asked whether you are a fair person.”
“You are probably going to be asked whether you can follow the law.”
“Everybody in this room believes they are fair and will try to do the right thing.”
“But that is not what I am asking you.”
Then pause.
“I want to know whether you are neutral.”
That changes the conversation.
Now the juror is no longer being asked to evaluate his character.
He is being asked to identify where he starts.
That is where the truth lives.
Put the Bias on the Board
Talking about bias is good.
Showing it is better.
Draw a horizontal line.
In the middle:
NEUTRAL
On one end:
VOTE FOR DEFENDANT
On the other:
VOTE FOR INJURED PERSON
Now take the juror who has already expressed a defense bias.
Put your marker on “Neutral.”
Slowly move it toward “Vote for Defendant.”
Then say:
“Tell me when to stop.”
Let the juror stop you.
Put an X on the board.
Write the juror’s number next to it.
Then ask the most important question:
“Is that where you are right now, before you have heard any evidence?”
If the juror says yes, stop talking.
You got what you needed.
The juror has now told everyone in the courtroom:
I am not starting at neutral.
Don’t Rescue the Juror
Trial lawyers have a bad habit.
We uncover bias—and then immediately start trying to fix it.
Why?
If the juror tells you he distrusts lawsuits, believe him.
If the juror tells you she thinks malpractice cases are usually frivolous, believe her.
If the juror tells you he already favors the defendant, believe him.
Do not argue.
Do not persuade.
Do not educate.
Do not turn voir dire into a miniature closing argument.
Say:
“Thank you for being candid.”
And move on.
Your job is not to turn a biased juror into a good juror.
Your job is to identify the biased juror before that person decides your client’s case.
Then Ask the Most Dangerous Question in Voir Dire
After the first juror places himself on the line, turn to the panel.
“Anyone else?”
That question can change your jury selection.
Because one juror’s honesty gives everyone else permission to be honest.
Suddenly another hand goes up.
Then another.
Now you are not asking whether people can “promise to be fair.”
You are finding out where they really begin.
That is the information you need.
Make Rehabilitation Look Ridiculous
Think about what happens when defense counsel later asks:
“You can still be fair, correct?”
The juror may still say yes.
But now the record contains something far more powerful.
The juror has already told the court:
“I am starting over here.”
And there is an X on the chart showing exactly where “over here” is.
The issue is no longer whether the juror considers himself a decent and fair-minded person.
Of course he does.
The issue is whether he begins the case neutral and indifferent between the parties.
He has already answered that question.
Preserve the Moment
Once you have charted the bias, make sure the record reflects what happened.
Summarize it clearly:
“We charted the extent of the juror’s bias in favor of the defendant.”
If the court permits it, mark the chart as an exhibit or otherwise make sure the juror’s placement on the neutrality scale is preserved in the record.
Because when the cause challenge comes, you do not want to be arguing about a vague impression of bias.
You want the Judge looking at an admission.
Be Fair: Expose Bias Even When It Favors Your Client
One of the most effective ways to establish credibility during jury selection is to demonstrate that you are fair—even when fairness does not favor your client.
Suppose a prospective juror expresses a preference for the injured person.
Draw a line representing the spectrum of juror attitudes, with "Neutral" in the center and "Vote for Injured Person" at one end.
Starting at "Neutral," draw a line toward "Vote for Injured Person" and ask the juror:
"Tell me when to stop."
Let the juror identify the point where their preference falls.
Don't argue with the juror. Don't minimize the preference. And don't try to rehabilitate the juror simply because the preference favors your client.
Instead, acknowledge the juror's honesty and thank them for their candor.
You cannot credibly challenge jurors who favor doctors while defending jurors who favor injured plaintiffs.
By treating both sides of the spectrum equally, you demonstrate something that jurors rarely expect from a trial lawyer: fairness.
The other jurors are watching. They see that you are willing to acknowledge bias even when it might benefit your client.
That is how you establish credibility before the first witness ever takes the stand.
Fairness builds credibility. Credibility builds trust. And trust is the foundation of persuasion.
Stop Asking Jurors to Promise They Will Be Good
“Can you be fair?”
“Can you follow the law?”
“Can you put that aside?”
Those questions practically beg for the same answer.
“Yes.”
Instead, find out where the juror starts.
Ask about the bias.
Put it on the board.
Make the juror own it.
Then stop trying to rehabilitate the juror for the defense.
The Takeaway
A biased juror does not become neutral because a defense lawyer asks a leading question.
So do not let your voir dire end with:
“I can be fair.”
Make it end with:
“This is where I start.”
And when a juror tells you that he is not starting at neutral, do something surprisingly difficult for trial lawyers:
Believe him.
