Overview
Perhaps no stage of trial proceedings is less discussed, less understood, and more avoided than voir dire—or jury selection. Too often voir dire is a last-minute consideration, with each member of the trial team seeking to pass the task off to a colleague. With the decline in the number of jury trials for many lawyers, fewer attorneys become skilled at voir dire. As experienced trial lawyers and jury consultants alike will tell you, the problem with this situation is the party that successfully identifies favorable jurors and eliminates unfavorable jurors generally wins the jury verdict.
Against that backdrop, we offer a few observations and suggestions based on our long and our recent experiences picking juries in Texas courts and elsewhere. First, the demographics—age, ethnic makeup, income brackets and educational attainments—of the jury pool are changing. Second, trial lawyers should be able to deal with those changes, just as they should learn to deal with jury panels in different parts of the country if their practice takes them outside their local jurisdictions.
The jury pool is changing.
We look at Harris County as an example. It is the largest county in the State of Texas, with a current population of nearly five million, making it the third-most populous county in the United States.1The conventional wisdom about a Harris County jury was that it was diverse, blue collar, and pro-plaintiff. That wisdom and the often-spoken corollary that this type of jury leads to huge plaintiff verdicts was often imparted to clients faced with the prospect of being a defendant in Harris County state court. Those experiences were echoed in other larger metropolitan areas in Texas, like Dallas County or Bexar County. However, the times—and the composition of jury pools—are changing.
Increasingly, the venire panel is becoming more affluent and better educated: in 2024, of the members summoned to jury service, at least 73.3% had a 2-year college degree (of those, 24.2% had some level of post-graduate education). This has echoed our experiences where we have seen increasing numbers of engineers, oil and gas executives, and medical professionals like doctors and nurses on the venires and on seated juries. And we see the impact of these changes in results. An analysis of verdicts from 2021 to 2025 indicates that 34.7% of cases result in defense verdicts; and nearly 65% of verdicts result in a verdict of under $50,000.2
Other Texas cities are experiencing a similar demographic shift in jury pools and seated juries as well. Dr. Ryan Malphurs, the managing partner of Delphi Litigation Strategies and an experienced jury consultant, has noted this trend in his hometown of Dallas, and reports of similar shifts are now anecdotally reported from trial lawyers among other cities all over the country. But do not despair – we are here to tell you how to voir dire any jury pool, regardless of any changes to the jury pool’s demographics or economic circumstances.
Voir dire strategies for a changing (or any) jury pool.
So, what do these changes mean for a trial lawyer conducting voir dire or a client sitting at counsel table wondering how the jury selection process works? Before we answer that question, let's make sure we're all discussing the same issue: voir dire or, as it is often called, jury selection, is that part of a trial where lawyers and clients first meet the pool of jurors from whom their 6- or 12-person jury will come (trial lawyers will often request or even insist that clients be present at jury selection both in order to introduce the clients to the venire and to provide input on which jurors to strike). The object of this process is to identify favorable and unfavorable jurors and to strike as many of the unfavorable jurors, either as a matter of law (for cause) or by use of preemptory strikes (a fixed number of strikes which the court assigns to each party to use to remove jurors as the party thinks best) as possible. The goal is to seat a jury of people all of whom are inclined to favor the client’s case. The hope, of course, is that if the lawyer presents the relevant evidence and consistent narrative to these jurors, they will confirm the lawyer’s and the client’s estimate of the jurors’ inclinations and return a verdict for the client.
Thorough preparation, strategy and planning are crucial to a successful voir dire, just as those qualities are essential to a successful trial. It follows that the lawyer will want to learn about each potential juror on the venire so that the lawyer, along with the client and, we hope, the consultant, can make an informed decision about whether to attempt to strike that juror. In the past, certain generalizations about the venire seemed to control decisions about whom to strike. Are teachers better for plaintiffs or defendants? Or do jurors with higher education levels in higher income occupations respond differently to themes than jurors with no college education and earn an hourly wage? Experience in jury selection tends to teach that these generalizations about people have limited use and cannot substitute for individual examination of jurors to learn how each person responds to your themes and evidence. To that end, here are some suggestions and tips:
- Prepare in advance. Successful jury selections begin in the planning stages. This requires dedicating significant thought into voir dire before jury selection begins. The lawyer should know the narrative, strengths and weaknesses of each side’s case so that the lawyer can explore and discuss the client's themes and important positive and negative facts with the venire. Assuming that the budget is available, we are big proponents of conducting at least one, if not two, mock trials to assist in the development of case themes, juror profiles, and narrative(s) that will succeed in persuading jurors to accept your version of the facts.
- Hire a jury consultant. Jury consultants are professionals who assist lawyers in organizing mock trials, developing case themes, and conducting jury selection. Experienced consultants, like Dr. Malphurs, are involved in dozens of jury selections every year in different venues, and that experience can be leveraged to maximize every facet of the jury selection process. This experience is useful when trying a case in a foreign jurisdiction where you have never conducted a voir dire.
- Know the audience. The lawyer should talk to every juror in the venire. If the court permits juror-counsel interactions in the case venue, these conversations are the most important source of information in voir dire. The lawyer should prefer general open-ended questions, then ask for a show of hands for those who have something to say about the topic and then speak one at a time with each juror that held up their hand. The best way to avoid generalizing about people by, for instance, their occupation or education level, is to get them to talk about their individual experiences and beliefs. Trial experience teaches that jurors who have life events like the events at issue in the trial often become unexposed witnesses during deliberation, whose personal narratives can take over the jury deliberations and control the ultimate verdict. Often, the only way to identify these dangerous jurors is to speak with them during voir dire.
- Learn the judge. Many courts have local rules about what latitude they give lawyers on voir dire and whether the court will even allow lawyers to speak in any depth with potential jurors. Become familiar with those rules and with how the trial judge conducts voir dire — including watching the voir dire of another case in that same court — before starting voir dire.
- Organize your team. At jury selection, the main examiner should be focused on engaging with the panel and developing prospective biases to set up for-cause challenges. Therefore, it is critical that some member(s) of the team, other than the examiner, take detailed notes about the examiner’s encounters with the venire and monitor the panel for their visible reactions to questions and to the examiner to develop informed opinions about which jurors to seek to strike for cause and how to use peremptory challenges. Ensuring proper roles for team members is essential to a successful voir dire.
- Use a jury questionnaire, if the court permits. A jury questionnaire is an invaluable tool to gather information about the jury pool. A good questionnaire will help streamline voir dire by uncovering obvious disqualifying stances, hardship or experiences. Questionnaires should be designed both to target individual backgrounds and viewpoints and should include some questions that are relevant to the facts of the case they will sit for. In addition, a questionnaire can be used to have a judge pre-qualify the panel for hardships — notably focusing on pre-planned vacations, childcare issues, or other factors that would prevent a juror from serving. A jury questionnaire is particularly useful in jurisdictions that permit so-called jury shuffles. In Texas civil trials, for instance, the law allows one jury shuffle per case. Since the seated jury typically consists of the first 12 jurors who have not been disqualified or stricken, a lawyer might elect to exercise a jury shuffle if the jury questionnaire indicates that a high number of likely unfavorable jurors are among the first 24 on the venire.
- Face your fears. There are many ways to organize potential voir dire questions, from delving into a prospective juror's education level, to advocating a position, to discussing weaknesses in a case. But the key in voir dire — and it may be difficult because it runs against human nature — is to draw out jurors whose background experience may be dangerous to the client’s case or who express negative opinions about facts or situations in the case. In Texas, this technique is sometimes referred to as “hugging a cactus.” Search for and identify jurors who are negative to the lawyer, the client or the facts of the case; these are the folks the lawyer does not want on the jury hearing the evidence in the case. Also, for this reason, clients should attend voir dire – it allows them to hear ordinary peoples' take on the clients' business and on the facts of the case. If the case has a jury consultant and/or has been able to go through a mock trial, the lawyer often will have a profile of jurors who are likely to be hostile to the evidence and will have drafted questions to expose those jurors’ biases and prejudices. Once the lawyer and the team identify these jurors, they should be encouraged to express their biases in a way that disqualifies them to serve as a juror under the rules of the court hearing the case.
- Avoid risk. There’s no reason to put a juror on a case who may have their own expert opinion about the arguments in the case or whose past experiences likely will arm them with facts that they will bring to bear during deliberations — facts the lawyer cannot counter. Strike these jurors if possible.
- Call a larger panel than needed. Clients and lawyers should be aware that many jurors have their own lives and do not necessarily want to serve on a jury, especially for the weeks or months required for longer trials. Likewise, individuals will have plans that could interfere with jury service. Examples include non-refundable travel, planned vacations, and professional commitments. Holidays can wreck panels as well. Also, if your case has received press coverage/attention, you will likely encounter jurors who have already formed opinions about the matter in trial, making them likely to be disqualified to serve. The recommended solution to these anticipated problems is to ask the court to call a larger panel than they might initially suggest.
- Ask for more/as much voir dire time as needed. One of the most important objectives during voir dire is to speak with as many panel members as possible to obtain as much information about individual members of the venire as can be had in a short conversation. That questioning takes time — often longer than assumed. Judges frequently have little patience with lawyer-juror interactions and often want to impose tight time limits on voir dire to cut it short. So whenever possible, overestimate the time needed; at worst any extra time left over can be given back to the court and both the venire and the judge will like you more for it.
- Be aggressive with cause challenges. Most states have strict rules about what a party must show to justify the court striking a juror for cause. Nonetheless, even if a juror’s responses are on the margin of the "magic" disqualification language and don’t strictly qualify for a cause challenge, the challenge can be useful. For one thing, judges often call back to the bench individuals who have been challenged to speak to the attorneys and the court so the lawyer can then develop additional material to support a strike for cause. Not infrequently, jurors who were initially reluctant to commit to the "magic" words that would result in disqualification may have a change of mind after spending a day in voir dire. And sometimes a judge will grant a cause challenge if the juror’s statements are close enough to the necessary language, especially near the end of voir dire if the venire panel is large so that disqualifying the juror will not bust the panel.
- Know how to make a Batson Few things fluster lawyers during voir dire like a Batson challenge. The prospect of justifying strikes on the record can make any lawyer uneasy. There are a few things to keep in mind if facing or making a Batson challenge. First, it is important to keep in mind that Batson is not limited to juror race but to any "cognizable group." And second, a challenge can be made at any time. The first step when making a Batson challenge requires establishing a prima facie case of purposeful discrimination, which involves first identifying that a stricken juror is a member of a protected cognizable group. This fact, along with any other relevant circumstances, creates an inference that the opposing party has used a peremptory challenge, or multiple challenges, to strike potential jurors based on their membership in that group. The burden then shifts to the defending party to show a race-neutral explanation for the strike, and once such an explanation is provided, the party challenging the strike may show that the reason is pretextual.
Conclusion
The composition of jury pools is changing; however, there has been no evidence suggesting that the change has resulted in a need for a radically different approach to voir dire. Any change in the composition thus does not require a revision to sound voir dire technique. Instead, it involves updating the trial lawyer's knowledge about the local venire, a thorough examination of individual juror’s attitudes and experiences, and a constant sensitivity on the part of the team to each of the venire persons' responses to questions posed to them by the lawyers and the judge.
1US County Populations 2025, https://worldpopulationreview.com/us-counties (last visited May 1, 2025)
2 Hon. Rabeea Collier & Jim M. Perdue, Jr., Texas Juries and Jury Verdicts, Houston Bar Association Bench Bar Conference, Apr. 11, 2025.
