Jury Selection in Personal Injury Cases: A Practical Guide

This article provides a practical guide to personal injury attorneys selecting a jury in California. It covers jury composition, rules of voir dire, challenges, peremptory strikes, signs of a “bad” juror, and suggested topics and questions.  

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Jury Composition

In California state court cases, a trial jury in a civil case shall consist of 12 persons, absent agreement by the parties to a lesser number. (Cal. Code Civ. Proc. § 220; California Constitution, Article 1, section 16.)

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Juror Votes Needed for a Verdict

The California Constitution requires three-fourths of the jury to render a verdict in a civil case. (Cal. Const., Article 1, § 16.) Assuming a jury of 12 persons, 9 or more jurors must agree on the verdict form to reach a verdict. 

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Voir Dire

Voir dire (pronounced “vwar deer”) is another term for jury selection. It is an old French phrase meaning “to speak the truth.” It originates from the oath taken by jurors to tell the truth. Modernly, it refers to the jury selection process of questioning potential jurors to assess their suitability for a jury. When an action is called for trial by jury, the clerk shall randomly select the names of the jurors for voir dire. (Cal. Code Civ. Proc. § 222.)

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Rules of Voir Dire

California Code of Civil Procedure section 222.5 governs the voir dire process in civil jury trials. It emphasizes the importance of liberal and probing voir dire to uncover bias or prejudice among prospective jurors: “the trial judge shall permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case before the court.” (Cal. Code Civ. Proc. § 222.5.)

Here’s a summary of section 222.5’s key provisions:

1. Judge’s Initial Examination

• The trial judge must begin voir dire and ask questions of prospective jurors.
• This allows the judge to assess basic qualifications and potential issues.

2. Counsel’s Right to Question

• After the judge’s questioning, attorneys for each party have the right to further examine jurors.
• The law mandates that the court allow liberal and probing questioning relevant to the case to discover any actual or implied bias.

3. Mini-Openings

• Upon request, the court must allow brief opening statements (mini-openings) by counsel before voir dire begins: “Upon the request of a party, the trial judge shall allow a brief opening statement by counsel for each party prior to the commencement of the oral questioning phase of the voir dire process.” (Cal. Code Civ. Proc. § 222.5(d).)
• These mini-openings help jurors understand the nature of the case, leading to more informed responses during questioning.

4. Reasonable Time for Voir Dire

• Judges are instructed to give reasonable time for voir dire and are discouraged from imposing strict or arbitrary time limits unless truly necessary for court management.

5. Improper Questions

The section prohibits questions that:

• Attempt to precondition the prospective jurors to a particular result.
• Are intended solely to argue the case.
• Ask jurors to pre-commit to a decision or apply the law to hypothetical facts.

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Goals of Voir Dire

The main goal of an attorney during voir dire is to find out if any jurors might be unfair to your client. This means asking questions to uncover hidden biases or strong opinions that could hurt the case. It’s important to watch how jurors act and talk, to figure out who might be a strong voice during deliberations — whether helpful or harmful. Leaders are more dangerous because of their ability to influence other jurors.  

Another key goal is to get biased jurors removed “for cause,” so you don’t have to use up one of your peremptory strikes. After that, you use what you’ve learned to make decisions about who to strike, aiming to strike “bad” jurors.

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Challenges for Cause

A challenge for cause is an objection raised by either party to a potential juror based on a specific bias, conflict of interest, or other factor that would prevent them from serving impartially. Identifying potential juror biases is crucial to ensuring a fair and impartial jury. There is no limit to the number of challenges for cause that a party can raise. Common grounds include demonstrated prejudices, personal relationships with parties involved, or financial interests in the case outcome. The judge decides on the validity of these challenges.​ 

A challenge for cause can be made based on:

1. Actual Bias — a juror openly acknowledges a predisposition affecting their judgment, or
2. Implied Bias — a juror's specific circumstances or relationships suggest a high risk of partiality.

(Cal. Code Civ. Proc. § 225(b)(1).)

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Actual Bias

Actual bias is a basis for dismissing a prospective juror when their beliefs, experiences, or attitudes demonstrate that they cannot act impartially, even if they claim otherwise. (Cal. Code Civ. Proc. § 225(b)(1)(C).) 

Grounds for actual bias:

1. Obvious Bias or Hostility

A juror who shows clear bias, prejudice, or hostility toward either party may be challenged for actual bias.

Example: A juror expresses distrust or hostility towards personal injury lawsuits during voir dire. 

2. Strong Beliefs or Prejudices Against a Party Type

If a juror holds strong negative opinions about a class of parties — such as personal injury plaintiffs — they may be disqualified.

Example: A juror expresses strong distaste for personal injury plaintiffs and admits to not being impartial. 

3. Long-Held Personal or Moral Beliefs

Deeply rooted personal or moral beliefs relevant to the issues in the case can prevent a juror from being impartial.

Example: Juror shares strong belief about abortion being morally wrong in a wrongful birth case. 

4. Preconceived Notions Based on Prior Experience

Jurors with significant personal experience related to the subject matter of the trial may bring in biases that they cannot set aside.

Example: A juror with prior experience and opinions about injuries similar to the plaintiff’s. 

5. Prejudgment of the Case

If a juror already has an opinion about the case based on knowledge of the facts — even without hearing the evidence — they may be challenged.

Example: A juror read about the case in the news and believes the defendant is liable.

6. Juror Starts One Side at a Disadvantage

Bias exists where a juror admits they believe one side generally bears more responsibility in similar cases.

Example: A juror admits they generally blame plaintiffs in similar suits. 

7. Requiring More than the Legal Burden of Proof

A juror may be biased if they require a party to meet a higher burden than the law demands (e.g., more than a preponderance of evidence).

Example: A juror admits they would require more than a preponderance of the evidence.

Summary

A challenge for actual bias in jury selection is appropriate when:

• A juror expresses strong or long-standing beliefs tied to the case issues.
• Prior experience shapes the juror’s opinions about the facts.
• The juror is predisposed against one side.
• The juror demands a higher burden of proof than the law requires.
• The juror refuses to follow the law if it conflicts with personal beliefs.

These situations threaten the fundamental principle that jurors decide cases based solely on the law and evidence. When they arise, the court should excuse the juror for cause to preserve the integrity of the trial.

Questions for Showing Actual Bias

Attorney: 

• What do you think about [insert issue, e.g., “people who sue for personal injury” or “large verdicts”].
• Juror number []?
• Why do you feel that way?
• What led you to this point of view?
• Why is it important to you?
• Have you felt this way for a long time?
• Would you say it’s something you feel strongly about?
• If someone asked you to set it aside — could you honestly do that?
• So, if we’re being honest — you cannot be entirely impartial in this case?‍
• My client would be starting out at a disadvantage?

Attorney to Court (outside the presence of the jury): 

• Your Honor, based on the juror’s answers, it’s clear that this belief is deeply held and not subject to change. They’ve acknowledged that they could not set it aside and that they cannot be entirely impartial. We request that the Court excuse this juror for cause on the grounds of actual bias.

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Implied Bias

A challenge for implied bias means that the law presumes a person cannot be impartial due to certain relationships or circumstances, even if they claim otherwise. 

The law presumes a prospective juror is biased if any of the following conditions exist: 

• related by blood or marriage to a party or witness
• had a relationship (fiduciary, domestic or business) with a party
• was a prior juror or witness in litigation involving a party
• has an interest in the litigation
• has an unqualified opinion as to the merits based on knowledge of material facts
• has an enmity or bias toward a party

(Cal. Code Civ. Proc. § 229.)

Questions for Showing Implied Bias

Court/Attorney: 

• ​Know any of the parties?
• Do you have any financial interests or affiliations with companies in the same industry as the defendant? 
• Could these connections affect your ability to remain impartial?

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Rehabilitation of Bias

Bias cannot be rehabilitated simply by stating, “I can be fair,” or “I will follow the law.” Prospective jurors are properly excluded for cause where they admit bias but then promise to be impartial or to decide the case according to the evidence presented. (Lombardi v. California Street Ry. Co. (1899) 124 Cal. 311, 314; Quill v. Southern Pac. Co. (1903) 140 Cal. 268, 271 [discussing that where a juror has once stated bias but then later states he could act impartially, the declarations of impartiality should not be readily trusted].)

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Peremptory Challenges

Peremptory challenges allow attorneys to dismiss potential jurors without stating a specific cause. They should be used to excuse “bad” jurors who may negatively influence the other jurors. A party exercises a peremptory challenge by stating to the court, “Plaintiff thanks and excuses juror [insert number].”

In California civil cases, each party is entitled to six peremptory challenges. If there are more than two parties, the court shall, for the purpose of allotting peremptory challenges, divide the parties into two or more sides (e.g., plaintiffs and defendants). Each side shall be entitled to eight peremptory challenges. (Cal. Code Civ. Proc. § 231(c).)

Peremptory challenges are taken or passed by the sides alternately, commencing with the plaintiff, and each party is entitled to have the panel full before exercising any peremptory challenge. When each side passes consecutively, the jury is sworn. The number of peremptory challenges remaining with a side is not diminished by any passing of a peremptory challenge.

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Signs of a “Bad” Juror for the Plaintiff

A “bad” juror is someone who, based on their attitudes, experiences, or biases, is likely to be unfavorable to your client’s case. There are two types of bad jurors: leaders, and followers. A bad juror who is a leader is more dangerous than a follower, because of their ability to influence other jurors during deliberations.

Here are some common red flags in a personal injury case from the plaintiff’s perspective:

1. Pro-Defense Bias

• Believes lawsuits are mostly frivolous
• Thinks people sue just to get money
• Strong belief in “personal responsibility” over corporate accountability

2. Skeptical of Damages

• Believes damages (especially pain and suffering or emotional distress) are exaggerated
• Expresses discomfort with awarding large sums of money

3. Negative Experience with Lawsuits

• Involved in a past lawsuit and had a bad experience (even on the defense side)

4. Overly Analytical or Rule-Oriented

• Engineers, accountants, or people who need black-and-white answers might struggle with the nuance and human side of personal injury law
• People who see the world in absolutes, can’t empathize, or are resistant to changing their mind

5. Insurance Industry Ties

• Works for or has family in the insurance industry (can skew them toward the defense position)

6. Negative Body Language

• Jurors who cross their arms, avoid eye contact, or seem disengaged may not be receptive to your client’s story.

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Voir Dire Topics and Questions for Personal Injury Cases

Below are critical areas of inquiry, with suggested questions to help guide your approach and ensure a fair and impartial panel.

1. Sympathy Toward Defendants

To identify jurors who may relate to the defendant due to personal experience with lawsuits or claims:

• Has anyone here ever been sued or had a legal claim filed against them?
• Did that experience affect how you view lawsuits or people who file them?
• Would that experience make it harder for you to start this case with a clean slate?
  

2. Prior Similar Injuries

To uncover potential bias based on jurors' own injury experiences:

• Has anyone suffered a similar injury to the one being claimed in this case?
• How did that experience shape your views about pain, recovery, or compensation?
• Would that experience affect how you evaluate someone else’s injury?
  

3. Addressing Bad Facts

To neutralize harmful case facts by surfacing jurors' attitudes in advance:

• You may hear that the plaintiff [insert neutral version of bad fact—e.g., didn't wear a seatbelt].
• How do you feel about that?
• Would that fact alone make it difficult for you to fairly consider the rest of the evidence?
  

4. Personal Responsibility

To detect jurors who might instinctively blame the injured party or who overemphasize individual responsibility at the expense of systemic factors:

• When someone is injured, do you usually assume they probably did something wrong to cause it?
• If you heard that a teenager was hit while crossing the street, what would your gut reaction be?
• Do you believe accidents sometimes happen with no one really at fault—or do you think there’s always someone to blame?
• Would it be difficult for you to consider that a government agency could be mostly or entirely at fault, even if the person who was injured may have made a mistake?

5. Compensatory Damages

To uncover biases around valuing pain, suffering, and intangible harms:

• How do you feel about awarding money for things like pain, emotional distress, or loss of enjoyment of life?
• Do you think jurors are capable of evaluating those types of harm?
• Do you believe there should be limits on how much someone can receive for pain and suffering? Why?
• Without hearing any evidence, is there an amount that already feels “too much” to you?
• If the evidence supports it, could you sign a verdict for a large number—$20 million or more?
• If I told you we’re seeking [$ amount], would that surprise or concern you?
  

Note: In Fernandez v. Jimenez, the California Supreme Court confirmed that referencing large verdict amounts in voir dire is appropriate for assessing juror reactions—not to precondition.

6. Reactions to Large Verdicts

To reveal general attitudes toward high-dollar awards and whether jurors can follow the evidence:

• Do you think personal injury verdicts today are generally too high?
• When you hear about a large jury award, what’s your gut reaction?
• Do you think verdicts like that affect the economy, insurance premiums, or taxes?
• Could you still return a multimillion-dollar verdict if the evidence supports it?
  

7. Tort Reform & Lawsuit Skepticism

To identify jurors influenced by tort reform narratives or anti-lawsuit sentiments:

• Have you heard the term “tort reform”? What does it mean to you?
• Do you believe there are too many lawsuits today?
• Do you think people are too quick to sue?
• Do you think lawsuits cost society too much money?
• What comes to mind when you see ads or billboards for personal injury attorneys?
  

8. Burden of Proof

To ensure jurors understand and accept the lower civil standard of proof:

• This is a civil case, so the burden of proof is “more likely than not”—not “beyond a reasonable doubt.”
• Is there anyone who feels they’d need more than that to be comfortable deciding?
• Would anyone have trouble holding someone responsible unless it’s proven beyond a doubt?
  

9. Public Entity Defendants

To surface discomfort with awarding damages against a government or public agency:

• Does anyone feel uncomfortable holding a city or public agency financially responsible?
• Are you concerned that your verdict might impact taxes or public services?
• Would that concern make it harder for you to evaluate the evidence fairly?
• If a public agency violated safety rules, do you believe they should still be held accountable?
  

10. Case Themes: Accountability and Safety Rules

To align jurors with case themes of safety and responsibility:

• Why do you think we have safety rules in society?
• At your job, what happens if someone violates a safety policy?
• Do you believe courts should hold people or companies accountable when they break safety rules?
• Is anyone uncomfortable using the legal system to enforce safety standards?

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Jury Questionnaires

Jury questionnaires are a powerful tool in voir dire, especially in complex personal injury or wrongful death cases where potential jurors may bring deeply held beliefs that could impact their ability to be fair and impartial. These written surveys, completed before in-person questioning begins, give attorneys a valuable head start in understanding jurors’ backgrounds, attitudes, and potential biases.

Questionnaires can make it easier for jurors to share sensitive information they might hesitate to reveal aloud. They also help streamline the voir dire process, allowing attorneys to use their limited time more strategically and follow up on red flags in a thoughtful, informed way.

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Conclusion

Jury selection is one of the most important phases of a personal injury trial. The ability to uncover hidden biases, identify unfavorable jurors, and assemble a panel that will fairly weigh the evidence can shape the outcome of a case. I hope this article provided a helpful roadmap for California trial lawyers navigating the jury selection process.

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Conor Hulburt is a plaintiff’s trial attorney and founder of the Hulburt Law Firm in San Diego, California.