Early on in the jury selection process, the judge will often ask the panel, “We all know that jury duty can be inconvenient, but who believes they would experience an unreasonable hardship by serving in this case?” Hands will shoot up. In some cases, the claims make an obvious case for cause removal: scheduled surgery, prepaid vacation, a sole propriety business that would need to be shuttered. In other cases, it can be a close call: An important business meeting (that someone else could cover), planned travel (that isn’t prepaid), or lost income (that could be made up later). When it’s a close call, the individual’s excuse being accepted or denied will often depend on the attitude of the judge and the parties, and counsel will need to decide whether they want to let the judge talk the person back into service, or to give a “no objection” to the idea of letting them go.
When preparing for that decision in voir dire, it helps to think strategically, and to have a stance on whether, for your case, it makes sense to encourage a hardship standard that is strict or lenient. For example, in our own internal research we’ve noted that those more likely to ask for hardships are also those who are somewhat more likely to be pro-plaintiff in a typical case. Based on that, the plaintiff’s counsel would want to encourage a strict standard that lets fewer jurors out for hardship, while the defendant would prefer a lenient standard that allows a greater number to head for the exits. That is part of the thinking that should go into your voir dire strategy. In this post, I will share a few other considerations on hardship that can matter to your strategic plan.
Many jurors will make an attempt to get out of service before resigning themselves to their duty or even embracing it enthusiastically once they realize there is no way out. But a persistent hardship claim can be a sign that there is some other problem with the juror. In assessing hardship claims, I think there are a few kinds of jurors that you want to guard against.
The Confused Juror
This kind of juror might have raised a hardship claim because they really don’t like the idea of sitting in court, following the details, and resolving someone else’s dispute. They may have a problem with the language, or with giving attention for a sustained period of time. They may be on medication, or they may simply have low education or low interest. If the easier story is the other side’s story, and your supporters on the jury would need to dig into the details to support your case, you don’t want this juror.
The Distracted Juror
This person will spend their time in the courtroom being worried about what is going on somewhere else: at work, at school, or in a caretaking role. They might take their oath seriously, but they also have other responsibilities that they cannot lightly set aside or compartmentalize. Again, if you are counting on an attentiveness to detail from your fact-finder, or an ability to consciously rethink first impressions, this juror won’t be able to bring that.
The Angry Juror
This potential juror does not respect parties or the process. They may hold it against the court and the litigants that the system has allowed their time to be taken, with minimal compensation, in order to resolve this dispute. They resent the interruption. In addition, they may be critical of the parties for having failed to resolve this case by other means prior to trial. That irritation could be directed toward both parties, but depending on the person, it could be directed somewhat more toward the party who is painted as having done something wrong, and the party who is perceived as having been unwilling to offer enough money to make it go away.
When attorneys consider whether to fight a potential juror’s hardship claim or to defer, it is important to consider what you’re left with in terms of the juror who tried to get out of service. This is one part of the picture when looking at the full spectrum of bias. But the hardship isn’t just a housekeeping step, it is part of the overall set of factors that influence the makeup of the jury.
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