Jury Questionnaires: Getting the 411 on Potential Jurors
By Tami D. Cowden and Mark Ferrario

No matter how well an attorney works up a case, and no matter how many scores of hours of preparation occur, a jury trial always involves a host of unknowns: the jury itself. In Clark County, potential jurors are summoned from a list of the licensed drivers and state identification card holders maintained by the DMV. That list includes persons from all walks of life, with a broad spectrum of educational and economic status, political perspective, and life experiences. Voir dire enables an attorney to gain a slight indication of who a potential juror is. But rarely will counsel be given an opportunity to question a single juror closely enough to develop a true sense of his or her personality. Thus, the makeup of the jury is too often a matter of blind luck. But there is a tool that enables counsel to obtain detailed information regarding the potential jurors’ family history, professional and social life, reading and television habits, and general world view: the jury questionnaire. Instead of being armed with minimal biographical information contained in the standard form, counsel who use the full extent of the jury questionnaire process can know who the potential jurors are before the first question in voir dire is ever asked. Additionally, a questionnaire can be tailored to include questions specific to the issues relevant in a case. Not all judges permit their use, and the need for advance planning often means the opportunity is foregone, but well crafted jury questionnaires provide information that is invaluable in selecting a jury inclined to favor the client’s point of view.

Specific content of the questionnaire
Any questionnaire will likely begin with basic demographic information: age, race, occupation, educational background, and marital status. But questionnaires can obtain far more insightful information, particularly through questions that will appear entirely benign and noncontroversial to the juror, but the answers to which will reveal much about the juror’s personality. Questions can be directed to the following issues:

• life experiences such as employment history, prior jury service, military service, hobbies, radio and television preferences, reading selections, social-network habits, and organizational membership;
• case-related experiences involving medical treatment, traffic accidents, use of case-related products, or being a crime victim;
• familiarity with case publicity, or personal knowledge of witnesses, attorneys, or parties;
• opinions regarding relevant issues in the case: views on “sting” operations, the mortgage/debt/foreclosure crisis, or tort reform.

Do not underestimate the power of the recreation questions, as they shed great light on the individual. How a person spends leisure time offers a far more eloquent revelation of character and values than a résumé. Content alone does not dictate the information received. Through careful drafting of questions, an attorney can also gain further insight into the respondent’s perspectives. Using multiple choice questions, it is possible to identify those with more extreme views on a topic. For example, a question might read:
Do you think the amount of money damages awarded in tort suits is (circle one):

much too high
somewhat high
about right
somewhat low
much too low

Odds are, most will choose either “much too high” or “somewhat high,” but the latter choice indicates feelings far less strong about the issue. Of course, it would also be nice to know precisely who thinks damages are much too low. Giving at least four choices, without any neutral option, best enhances the prospect of gaining a true picture of opinion. In similar fashion, the drafting of a question may make it possible to identify qualities about respondents beyond the specific answer. For example, a question regarding job history can also be intended to gauge attention to detail or ability to follow instructions. Just ask a question with specific instructions:
Please list the three most recent positions you have held, including the name of the employer, your duties, and why you left.

Some jurors will make a neatly detailed list providing all information requested. Others will briefly answer only regarding current employment. Both types of answers tell you more than what is said.

Timing of the questionnaire
The Eighth Judicial District Court does not have specific rules on the use of questionnaires, nor any guidelines setting forth deadlines for submission. However, logistics sets these boundaries. Ideally, you want the questionnaire to be filled out and returned prior to the day jury selection begins. If the other side does not agree to a questionnaire, you may need to obtain leave by motion, filed sufficiently in advance of trial for the court to rule. Additionally, the questionnaire must be prepared in time for the parties to agree over and or the court to approve the questions. Finally, there must be time to get it copied (in civil cases, a cost borne by the parties), delivered to the jury commissioner to be sent to the prospective jurors, and returned by those jurors. Ultimately, your best bet, in terms of timing, is to inquire regarding the specific judge’s practices.

Use of a questionnaire
The information gained from the responses to the questionnaires will only be useful if reviewed—ideally in advance of the jury selection process. This review is what helps you gain an understanding of who those potential jurors are. You can easily identify any who should be excused for cause, whether due to hardship or to bias. You can also identify those you most want to strike on peremptory challenges. Most importantly, your actual voir dire can be much more focused and streamlined, as the routine matters have been eliminated, and potential problems areas identified. Create a tabulation chart to allow you to easily manage for reference during voir dire. The prospective panel will not enjoy watching you thumbing through stacks of responses.

Advantages of a questionnaire
Use of a questionnaire presents the opportunity to ask for far more detailed information than the voir dire process could ever hope to yield. The mere fact that all questions are answered by all of the potential jurors greatly increases counsel’s knowledge of the venire. Additionally, jurors are more likely to answer questions honestly when free of the scrutiny of strangers in an open courtroom; political correctness will play less of a role in fashioning answers. Moreover, a judge will more likely permit questions that probe sensitive areas in a written questionnaire than for oral examination. Personal questions seem less intrusive when answered in writing, without the risk of embarrassment presented by having to publicly respond before strangers. Finally, there is no risk of honesty being repressed through intimidation by other jurors or by nervousness at the unfamiliar surroundings and procedures. Knowledge is a precious commodity when trying to predict how an individual would decide your client’s fate. A well crafted jury questionnaire allows counsel a far better chance of overcoming the uncertainty presented by any jury.

Tami D. Cowden is Of Counsel with Greenberg Traurig. She’s been studying the judicial process for more than twenty years. Tami may be contacted at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it Mark Ferrario is a Shareholder with Greenberg Traurig with nearly thirty years of litigation experience, including more jury trials than he can remember. Mark may be contacted at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

Attorneys who try cases before a jury are always looking for ways to increase juror knowledge of the evidence. And while the justice system uses many different tools to increase juror understanding and comprehension, research suggests that one of the most effective is the jury notebook. As a result, many states use jury notebooks, but each one has its own recommendations for what should be included and how the information should be presented. Nevada is no exception.

What exactly is a “jury notebook?” A jury notebook is a collection of documents or information and exhibits and is used to provide individual jurors with background information and evidence in an organized and controlled form. Depending upon the case, juror notebooks may include a trial schedule, a blank exhibit list form, lists of witnesses, photographs, maps, drawings, key exhibits, and demonstrative exhibits. For particularly lengthy trials, some notebooks contain photographs of witnesses.

A jury notebook should not be so large that it is unwieldy. The most convenient types of notebooks are three-ring binders in which documents can be added as the trial progresses. It is important that both parties’ counsel review an exemplar notebook before it is given to the jurors to ensure that only the items in the notebook are those agreed to by counsel or ordered by the court to be included. Jurors can more easily utilize the materials in the notebook if the exhibit numbers used in the notebook are the same as the exhibits actually admitted. An exemplar of the jury notebook should also be marked as a court’s exhibit for purposes of appellate review if necessary.

As shown by the list above, litigators have many different items that they could potentially include in a juror notebook. Additionally, while the trial judge has the final say in which materials should be included, both lawyers and judges should base their selections on items that will achieve the overarching goal: better juror understanding of the evidence. After all, the purpose in using jury notebooks should be to promote the jury’s understanding of the case and not to overwhelm jurors with hundreds of pages of irrelevant information. To this end, jury notebooks should be created to keep all of the related materials in a single place, permitting the jurors a single point of reference as well as a place to make notes on the materials included in their notebooks.

The research
A plethora of research demonstrates the positive impact juror notebooks have in increasing juror knowledge of trial evidence. For example, proper use of a jury notebook was shown to increase jurors’ understanding of the evidence in a 1996 study. Keith Broyles, Taking the Courtroom into the Classroom: A Proposal for Educating the Lay Juror in Complex Litigation Cases, 64 Geo. Wash. L. Rev. 714 (1996). Five years later, another study found that being able to refer back to the exhibits and notes assists jurors in recalling evidence. The same study concluded that the use of juror notebooks also increases juror confidence. Nancy S. Marder, Juries and Technology: Equipping Jurors for the Twenty First Century, 66 Brook. L. Rev. 1279 (2001). And in 2005, research found that distributing juror notebooks at the outset of a trial affords jurors the convenience of reference during the proceedings. Patricia Lee Refo, Chair, Principles for Juries and Jury Trials, American Jury Project, ABA (2005), http://www.abanet.org/juryprojectstandards/The_ABA_Principles_for_Juries_and_Jury_Trials.pdf. But do jurors actually use the notebooks? Yes. A 2005 Delaware study observed that 92 percent of jurors referred to jury notebooks when given the chance. Valerie P. Hans, B. Michael Dann, David H. Kaye, Erin J. Farley & Stephanie Albertson, Testing Jury Reforms, 23 Del. Lawyer 34 (2005). The Delaware study also found the jury notebook was an innovation that positively affected juror comprehension. The authors of the study concluded the use of jury notebooks provided a method to reinforce the evidence. However, many attorneys use a Power Point presentation to assist in the presentation of evidence. But the jury cannot effectively digest certain types of evidence when shown by Power Point presentations. Contracts, medical records, and other types of written documents are frequently difficult for a jury to view if shown through Power Point or on some other type of projected screen. Including these types of documents in a jury notebook can assist the juror in better understanding of the evidence.

Other states
Many states have adopted the use of juror notebooks. Studies conducted in a number of jurisdictions included types of materials to be included in appropriate cases: Arizona—lists of witnesses and possibly photographs of witnesses, a glossary of terms, and key exhibits. Jurors–The Power of 12, Arizona Supreme Court (1994) California—blank exhibit lists; stipulations; statements of fact, claims, and defenses; witness lists with photographs if available; and glossaries of terms and timelines. Jury Innovation Pilot Study, Los Angeles Superior Court (1999) New York—copies of exhibits, stipulations, CVs of experts, seating charts identifying attorneys and clients, chronologies or timelines, and glossaries. Continuing Jury Reform in New York State (2001)

Nevada
In 2001, the Nevada Supreme Court’s Jury Improvement Commission co-chaired by Supreme Court Justices Deborah Agosti and Robert Rose introduced several new concepts to Nevada judges and litigators. One of these concepts was the jury notebook. The commission determined that a jury notebook is a tool that can assist jurors in “navigating through the confusions of complex or technical litigation.” Report of the Nevada Jury Improvement Commission, October 2002. Further, the report of the Jury Improvement Commission noted that the jury notebook was not a device commonly used by Nevada trial courts, but was an innovation that would aid the jury in understanding, following, and processing complex information and exhibits during trial. The commission recommended that: In every case, jurors should be provided with paper and pencils to take notes. In appropriate cases, jurors should be provided with individual notebooks to hold copies of instructions and exhibits, their personal notes and photos of witnesses.

In ADKT 351, filed on December 16, 2004, the Nevada Supreme Court approved the recommendations of the Jury Improvement Commission. The recommendation listed the contents of the jury notebook to include: Photos of witnesses if the trial is of such a length that the photos would refresh juror recollection, pertinent evidentiary documents, and jury instructions.

Originally, jury notebooks were proposed primarily for lengthy or complex cases, but they can be used in any case under EDCR Rule 2.69. And in the Eighth Judicial District, EDCR Rule 2.69 also provides a mechanism for the trial judge at a final pretrial conference to discuss “the content of notebooks to be provided to the jury.” This is a topic that should be discussed between parties’ counsel at the meeting held pursuant to EDCR 2.67 when exhibits are being discussed. Nevada’s purpose in using jury notebooks is to provide the jury with information in a manner that is easy to access and view during the trial. And research shows that proper use of juror notebooks aids jurors in their understanding of the evidence.

Hon. Elizabeth Gonzalez is the Presiding Judge of the Civil Division of the Eighth Judicial District Court handling primarily business and civil litigation. Summer extern Charles Gianelloni, a 2L at Boyd School of Law, provided research assistance to this article.