Asking All the Right Questions: Benefits of Juror Questionnaires and Attorney-Conducted Voir Dire

The Seventh Amendment guarantees litigants a right to trial by jury, and, for more than 200 years, the voir dire process has been used in the United States to ensure the fairness and impartiality of that jury.¹ In the 1760s, William Blackstone described voir dire — which means “to speak the truth”— as the right to challenge a juror’s bias before proceeding to trial.² That goal remains. However, some modern tools and techniques have shown great promise in their ability to further assist judges and practitioners in garnering the most impartial jury possible.

Take, for example, juror questionnaires. A juror questionnaire completed before voir dire, especially in a complex case, helps streamline the voir dire process by allowing the court and attorneys to get initial, basic information about the jury pool. The questionnaire helps elucidate who should be dismissed outright due to conflicts or emergencies and “eliminat[es] the need for some preliminary questions during voir dire.”³ If completed in advance, juror questionnaires enable attorneys to perform initial research on potential jurors. The questionnaires allow individuals to relay sensitive information privately, rather than in front of a large group of strangers. Finally, they also provide the court and attorneys with a more complete picture of all the jurors, not just those who are most vocal and communicative during voir dire.

Similarly, permitting attorney-conducted voir dire, where attorneys (and not the judge) ask questions may effectively allow for assessment of fairness and impartiality. Jurors often feel more comfortable being candid with an attorney than with a judge, and the practice allows attorneys to introduce their theories of the case or raise crucial issues that the jury may be asked to decide.

Both of these tools — juror questionnaires and attorney-conducted voir dire — merit further consideration and use.

Jury Selection Under the Law

Section 1865 of Title 28 of the U.S. Code sets forth the basic qualifications for federal jury service, while Section 1864 outlines the procedures for selecting potential jurors, including the issuance of an initial juror questionnaire. In civil proceedings, Federal Rule of Civil Procedure 47 allows either the court or the attorneys to conduct voir dire and permits attorneys to exercise challenges for cause and peremptory challenges, which are limited to three per party unless increased by the court.⁴ If the court examines the prospective jurors, “it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.”⁵ The more information the parties have about potential jurors, the better the use of challenges. Thus, “voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.”⁶ For criminal proceedings, Federal Rule of Criminal Procedure 24 sets forth similar provisions.

The federal courts’ Administrative Office manages the computerized system known as eJuror, which helps courts comply with Section 1865. eJuror allows potential jurors to complete a “juror qualification form” online or via mail, which collects basic information including name, address, age, race, occupation, education, prior jury service, citizenship, ability to read, write, speak, and understand the English language, and past or pending felony charges.⁷

The same portal also allows for courts or the parties to add questions to the baseline form.⁸ For example, questions added by the U.S. District Court for the Western District of Missouri⁹ touch on marital status, children, hobbies, social and volunteer activities, and transportation limits. Those in the U.S. District Court for the District of Idaho relate to strong feelings about serving on a jury, personal or family involvement in lawsuits, occupation(s) over the last 10 years, occupation(s) of other adults living in the home, prior employment by the United States, and primary sources of news.

While there is no specific rule or statutory authorization for case-specific supplemental juror questionnaires, federal courts remain receptive to the concept, especially when the case is complex. As noted by Chief Judge James E. Shadid of the U.S. District Court for the Central District of Illinois:

The purpose of the questionnaire is to identify and disqualify those who are plainly unable to be impartial and also to elucidate the views and opinions of those who remain. In this respect, the questionnaires assist the Court and counsel with the task of deciding which of those in the venire should be struck for cause, inform counsel as to potential topics for follow-up questioning during individual voir dire, and guide counsel’s later decision to exercise a peremptory challenge. However, the interrogatories are only a starting point, and no amount of written questioning can completely replace the individual voir dire process.¹⁰

At least one federal circuit has implicitly approved of a standard “Juror Questionnaire in Civil Cases.”¹¹ Other courts have found that in high-profile trials with lots of media attention, “a supplemental questionnaire would assist both sides in selecting an unbiased jury . . . by providing the Court and parties with honest and forthcoming responses prior to voir dire.”¹² As one federal judge put it, “supplemental juror questionnaires are generally reserved for cases directly implicating sensitive, personal, or controversial issues,” not cases that “are relatively straightforward, lacking any personal or otherwise sensitive matter.”¹³ As another judge noted:

The questionnaire will aid judicial economy by allowing the Court and the parties to use the often limited time available for voir dire to address more substantive matters. The questionnaire will also allow the prospective jurors to provide some information about necessary but more mundane lines of inquiry outside the courtroom, thereby relieving the Court of the need to convene to conduct questioning about such mundane matters.¹⁴

Attorneys should be aware that many districts also have local rules addressing jury selection. For example, the U.S. District Court for the District of Oregon requires counsel to submit supplemental questions that “they desire to be propounded to the jurors” at least seven days prior to trial or at the time the judge orders.¹⁵

Examples of Effective Jury Questionnaires

Jury questionnaires are not one-size-fits-all, nor are they needed in every trial. They may offer minimal benefit in straightforward cases lacking sensitive or highly personal information.¹⁶

But in complex cases, large class actions, or cases that involve publicity or sensitive issues (e.g., sexual relations), they can help expedite the selection process and jurors can “be more honest in response to questionnaires than in open court.”¹⁷ They “allow[] for a process to be completed in minutes that could otherwise take hours, as the attorneys ask an initial series of questions, calling for a show of hands among however many of the jurors are called to testify at one time.”¹⁸ They can also prevent prospective jurors from making statements that could taint the jury pool.¹⁹

Example 1: Real Estate Antitrust Class Action Trial

In Sitzer v. National Association of Realtors,²⁰ a class of Missouri home sellers alleged that defendants violated the Sherman Antitrust Act by entering into a conspiracy to follow and enforce a rule adopted by the National Association of Realtors, which had the purpose or effect of raising, inflating, or stabilizing buyer-broker commission rates paid by home sellers. The two-week jury trial resulted in a monumental $1.7 billion verdict.

Prior to voir dire, each potential juror answered 36 questions, beginning with basic background information including where the potential juror lived, their education level, employment status, hobbies, and marital status.²¹ Potential jurors additionally answered more specific questions relevant to the case, including:

1. Have you ever worked or trained in the field of real estate, such as working as a real estate agent or broker, or for a real estate agency or company? If YES, please explain the type of real estate work, the names of any real estate company involved, and when, and where you worked in the area of real estate.
2. Do you have a close friend or family member who has ever worked or trained in the field of real estate, such as working as a real estate agent or broker, or for a real estate agency or company? If YES, please explain your relationship to the person, and the type of real estate work, the names of any real estate company involved, and when, and where they worked in the area of real estate.
3. Have you, or a close friend or family member, ever been a member of the National Association of Realtors?
4. Have you ever had a positive or negative experience with any trade association? If YES, please explain and include the name of the trade organization.
5. Do you have a strong opinion about trade associations in general or about a specific trade association? If YES, please explain.²²

The questionnaire also asked whether they had ever sold or bought a home, whether they used a real estate agent, whether the other party in their transaction used a real estate agent, whether they had a positive or negative experience with the agent, and whether the agent found the home, negotiated the price, facilitated inspections, or helped with paperwork.²³ These questions allowed the parties to know immediately if potential jurors should be excluded because they were class members. Given the significant media attention surrounding the case, the questionnaire also inquired into the potential jurors’ knowledge about the case.²⁴

The parties agreed that utilizing jury questionnaires in Sitzer helped ensure the fairness and impartiality of the proceedings. According to Brandon Boulware, counsel who represented the Missouri home sellers, “the juror questionnaire in Sitzer allowed both sides to identify jurors with insurmountable bias. It was critical to an efficient voir dire.” Jean Paul Bradshaw, former U.S. attorney for the Western District of Missouri and counsel for one of the defendants, agreed. “I’ve come to believe that it is almost malpractice not to request a jury questionnaire in most cases,” he said. “It gives all of the attorneys a better opportunity to learn about the potential jurors than simply reacting to their responses on the fly during voir dire.”

Example 2: International Patent Trial

In Provisur Technologies Inc. v. Weber Inc.,²⁵ the plaintiff, headquartered in Chicago, alleged the German-based defendant infringed on four patents related to commercial meat- and cheese-slicing and processing machines. Orally inquiring about potential jurors’ experiences with food-processing machines, inventions, and intellectual property would have been time consuming and not yielded complete, thoughtful answers. Instead, the parties used a jury questionnaire that asked potential jurors 31 questions.²⁶ Besides basic background information, the form asked:

1. Have you ever worked for a company that used automated technologies for processing or manufacturing?
2. Have you ever worked with any sort of food processing or slicing equipment? If YES, what were the names of the equipment manufacturers and models?
3. Have you, a family member, or a close friend ever invented or created anything, applied for or been named as an inventor on a patent, or owned a copyright, trademark, or other form of intellectual property?
4. Have you or someone close to you ever been in a dispute or litigation over intellectual property (such as a patent, copyright, or an idea)?
5. Do you have any positive or negative opinions of the U.S. Patent Office?²⁷

The questionnaire also asked about jurors’ feelings toward large companies and senior corporate executives.²⁸ Again, counsel on both sides found the questionnaire essential to identifying impartial jurors. Taylor Hausmann, attorney for plaintiff Provisur Technologies, noted that questionnaires “[can provide valuable insight into a potential juror’s sophistication, attention to detail, and information-processing skills generally.” She added, “Ultimately, [they can] assist attorneys in tailoring the presentation of their case in a way that resonates with particular jurors based on their life experiences and familiarity (or lack of familiarity) with the relevant subject matter.”

Carrie Bader, counsel for defendant Weber, echoed that sentiment, noting that questionnaires are “extremely helpful in providing a fuller picture of potential jurors’ life experience and, most importantly, helped identify potential hidden conflicts when the questionnaires were used in case-specific ways.”

Example 3: COVID-19 Insurance Coverage Trial

K.C. Hopps Ltd. v. The Cincinnati Insurance Company Inc.²⁹ featured a contract dispute over whether a commercial property policy covered economic losses sustained during the coronavirus pandemic.³⁰ Because this was the first case tried in the United States on whether commercial general liability insurance policies covered COVID-19 business loss, the case was likely to implicate a range of opinions, such as whether the coronavirus was fake or the efficacy of isolating at home. The questionnaire asked jurors 21 questions, including whether they had visited or worked for businesses involved in the litigation and whether they had worked for the Cincinnati Insurance Company or any insurance company.³¹ Some of the questions were deeply personal and the questionnaire respected that privacy. The form also asked:

1. Have you or a family member tested positive for the SARS-CoV-2 (COVID-19) virus?
2. Have you been vaccinated against the SARS-CoV-2 (COVID-19) virus?
3. Do you believe people should wear masks while indoors to protect against the transmission of SARS-CoV-2 (COVID-19)?³²

In addition, the questionnaire inquired into potential jurors’ feelings about litigation generally, whether they had ever filed suit against someone, and whether they had ever made a claim against an insurance company that was resolved without the need to file a lawsuit.³³ Daniel Litchfield, lead attorney for the insurance company, noted the somewhat unique posture of the case: “[T]he dispute implicated ongoing experiences shared by . . . the prospective jurors. In some respects, the case was like trying liability for an intersection collision while the collision was happening. . . . [Thus, the] questionnaire was helpful[.]”

Patrick Stueve, counsel for plaintiff, echoed these benefits, noting that questionnaires are “particularly appropriate” for cases “where jurors will likely hold strong views,” and that they yield “more candid responses and a more efficient voir dire.”

Example 4: MDL Bellwether Trial

A final example stems from a Multidistrict Litigation (MDL) bellwether³⁴ trial on a consumer protection class action, In re: Smitty’s/Cam2 303 Tractor Hydraulic Fluid Marketing, Sales Practices and Products Liability Litigation.³⁵ Plaintiffs alleged that defendants deceptively marketed tractor hydraulic fluid, misrepresented the products’ benefits, and used inferior ingredients. Defendants denied these allegations, claiming that their price-conscious product caused other manufacturers to complain and encourage the Missouri Department of Agriculture to prevent the sale of their hydraulic fluid. Many users of the product, including Missouri farmers, received checks after several of the retailers settled. The litigation and settlements received significant publicity on social media.

As the MDL progressed, what started out as “eight actions pending in eight districts”³⁶ ended up as 41 state class actions based upon various consumer protection statutes and common law claims. The court narrowed the cases moving forward for discovery and class certification to eight focus states.³⁷ Following class certification, the court set a date for the bellwether trial on the only class action eligible to be tried under Lexecon.³⁸ Like all MDL bellwether cases, the trial was guaranteed to be complicated and present a host of issues that could lead to juror bias. Both sides agreed jury questionnaires would play an important role in the selection process.

On a Friday, with trial scheduled to begin Monday, approximately 90 potential jurors arrived at the courthouse and completed the questionnaire. The 35 questions got right into the heart of the case, including:

1. Have you ever owned or operated equipment that used/uses hydraulic fluid of any kind? ___ Yes ___ No
2. Have you ever purchased a “303” or “yellow bucket” hydraulic fluid? (e.g., Super S Super Trac 303, Super S 303, CAM2 Promax 303, CAM 2 303, MileMaster 303, Carquest 303, Lubriguard 303, Napa 303, Coastal 303)? ___ Yes ___ No
3. Have you ever been involved in a court proceeding, settlement, or claims process involving “303” or “yellow bucket” tractor hydraulic fluid? ___ Yes ___ No
4. Have you ever had a personal, business, or professional relationship with any of the following companies or organizations: (check all that apply [with a list of relevant companies that followed]).
5. KNOWLEDGE OF CASE: This is a class action case involving claims of negligence, breach of implied warranty and Missouri Merchandising Practices Act arising out of the manufacture and sale of CAM2 Promax 303 Tractor Hydraulic Fluid which was manufactured by Smitty’s Supply Inc. and sold by CAM2 International, L.L.C.

a. From news media, conversations with others, or any other source, have you read, seen, or heard anything about this case or similar cases involving tractor hydraulic fluid? ___ Yes ____No

b. If YES, please describe what you have read, seen, or heard:

c. What sources have provided you with any information about this case?³⁹

The court’s IT and jury departments scanned the questionnaires into a secure drop box to be shared with counsel later that day.

After potential jurors completed the form, they were invited to the courtroom to individually explain if they would be unable to sit for a two-week trial or provide more information if their responses indicated that they had specific information about the matter. Given that one farmer discussing receipt of a settlement check could potentially spoil the entire panel, soliciting this sort of information upfront was critical to the selection process.

Tom Bender, the court-appointed lead counsel for the plaintiffs, commented that jurors “are showing an increasing desire to ‘get to it’ and jury questionnaires allow the attorneys to better do that.” He also noted that getting that information early helped them to “better perform the background checks and to obtain the assistance of others in that process as needed. . . . With bellwether trials setting the tone for the rest of the case, it is all the more important to get it right the first time.” Similarly, defense counsel Nikki Cannezzaro acknowledged allowing a juror questionnaire “provided a good compromise” between a judge who was reluctant to allow “extensive questioning during voir dire” and parties seeking “a wealth of information.”

As these examples demonstrate, juror questionnaires expedite voir dire in complex cases. According to the 2008 American Bar Association Seventh Circuit Project, most judges and attorneys believed using a questionnaire increased the efficiency of the trial process.⁴⁰ Yet a 2015 study reported that federal courts used general questionnaires in only 32 percent of cases that went to trial, while state courts used questionnaires in only 26 percent of cases.⁴¹ Case-specific questionnaires were only used in 19 percent of federal cases and 9 percent of state cases.⁴² Given the undeniable benefits of juror questionnaires, more courts and litigants should embrace this tool when the circumstances of a case warrant its use.

Efficacy of Attorney-Conducted Voir Dire

Beyond the implementation of a juror questionnaire, attorney-conducted voir dire is another practice that can greatly improve the candor and efficiency of the voir dire process. While judge-conducted questioning is the more traditional approach, permitting attorneys to ask questions of potential jurors presents numerous benefits.

An experiment on juror candor found that potential jurors may be more honest when attorneys ask them questions, rather than the judge. Specifically, 116 randomly selected people changed their answers almost twice as much when questioned by a judge versus an attorney, indicating that they may feel less comfortable being honest with a judge.⁴³ The study suggests that most people, including jurors, want to tell a judge — seated high on the bench and wearing a robe — whatever they think the judge wants to hear.⁴⁴ When a judge asks “But after everything you just said, can you follow my instructions and be fair and impartial?,” the answer from a prospective juror seems likely to be “yes,” because no one likes to admit to having a bias (perhaps especially to a judge). When attorneys are allowed to conduct voir dire, not only can they ask relevant questions based on their in-depth knowledge of their own case, but the answers the potential jurors provide are also often more candid. This increased candor plays a crucial role in the quest to impanel the most fair and impartial jury possible.

Attorney-conducted voir dire also gives attorneys an opportunity to introduce their theory of the case, explain relevant legal concepts, and address difficult issues like a witness with a criminal history or an email that contains inflammatory language.⁴⁵ These are the types of issues that a judge-conducted voir dire does not address, even though they can be pivotal issues for the jury to decide. However, attorneys should carefully adhere to the judge’s instructions and methods regarding how they conduct voir dire and avoid speeches or argument, which can run afoul of ethical obligations or invite an admonishment by the court.⁴⁶

While voir dire is a historied practice in the United States, it can still benefit from some of the modern tools and techniques that courts and attorneys have at their disposal. When used appropriately, juror questionnaires and attorney-conducted voir dire are two proven methods that can improve the process of eliciting helpful information from jurors and ensuring that every litigant receives a fair and impartial jury.

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STEPHEN R. BOUGH is a federal district judge in the U.S. District Court for the Western District of Missouri. He is a graduate of the University of Missouri-Kansas City Law School and is currently enrolled in Duke’s Master of Judicial Studies LLM Program.

KAITLIN MINKLER is a graduate of Washington University School of Law and practices at Schlichter Bogard LLP in St. Louis, Missouri. Minkler previously clerked for Judge Bough and Chief U.S. Magistrate Judge Willie J. Epps Jr. in the U.S. District Court for the Western District of Missouri.

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1. Marc Breakstone & David White, Lawyers Must Work to Improve Voir Dire System in Massachusetts, 17 Mass. Lawyers J. 3, 3 (2010).
2. Jill Holmquist, To Tell the Truth: Voir Dire in the Age of Neuroscience, Civ. Jury Project at NYU Sch. of L., https://civiljuryproject.law.nyu.edu/to-tell-the-truth-voir-dire-in-the-age-of-neuroscience (last visited Mar. 27, 2025) (citing Blackstone’s Commentaries on the Laws of England, Book III, Ch. 23, 394).
3. Civ. Jury Project at NYU Sch. of L., Trial Innovations: Juror Fact Sheet- Pre-Voir Dire Jury Questions, https://civiljuryproject.law.nyu.edu/trial-innovations/ (last visited Apr. 6, 2025).
4. 28 U.S.C. § 1870.
5. Fed. R. Civ. P. 47(a).
6. Mu’Min v. Virginia, 500 U.S. 415, 431 (1991).
7. 28 U.S.C. § 1869(h) (defining a juror qualification form).
8. “The form shall request, but not require, any other information not inconsistent with the provisions of this title. . . .” 28 U.S.C. § 1869(h).
9. A jury wheel is “any device or system similar in purpose or function, such as a properly programed electronic data processing system or device[.]” 28 U.S.C. § 1869(g).
10. United States v. Christensen, No. 17-cr-20037, 2019 WL 1272918, at *3 (C.D. Ill. Feb. 6, 2019).
11. Torres v. First Transit, Inc., 979 F. 3d 876, 880 (11th Cir. 2020).
12. United States v. Newland, No. 19-cr-23, 2020 WL 6364656, at *2 (N.D. Ind. Oct. 28, 2020).
13. EEOC v. BOK Fin. Corp., No. CIV 11-1132, 2014 WL 12628594, at *2 (D.N.M. Mar. 20, 2014) (citations omitted).
14. United States v. Sandoval, No. CR 04-02362, 2006 WL 1304955, at *3 (D.N.M. Feb. 1, 2006).
15. D. Or. L.R. Civ. P. 47-1(b).
16. BOK Fin. Corp., 2014 WL 12628594, at *2 (citations omitted).
17. Ted A. Donner & Richard K. Gabriel, Jury Selection Strategy and Science § 13:4 (2024–2025 ed. 2023).
18. Lisa Blue & Robert B. Hirschhorn, Blue’s Guide to Jury Selection App. Q (2024–2025 ed. 2004).
19. Jonathan S. Tam & Kimberly Branscome, Practical Law Practice Note, in Jury Selection (Federal) (2020).
20. 420 F. Supp. 3d 903 (W.D. Mo. 2019).
21. See U.S. Cts. W.D. Mo., Judge Steven R. Bough, https://www.mow.uscourts.gov/judges/bough (under “Case Procedures,” select “Civil Example Juror Questionnaires – SRB”) (last visited Apr. 6, 2025).
22. Id.
23. Id.
24. Id.
25. Provisur Techs., Inc. v. Weber, Inc., No. 19-cv-06021, 2023 WL 137490 (W.D. Mo. Jan. 9, 2023), rev’d in part by, Provisur Techs., Inc. v. Weber, Inc., 119 F.4th 948 (Fed. Cir. 2024).
26. Id.
27. Id.
28. U.S. Cts. W.D. Mo., supra note 21.
29. K.C. Hopps Ltd. v. The Cincinnati Insurance Company Inc., 561 F. Supp. 3d 327 (W.D. Mo. 2021).
30. Id.
31. Id.
32. Id.
33. Id.
34. “The term [bellwether] derives from the Middle English belle-weder, which referred to the practice of placing a bell around the neck of the lead wether (the castrated male sheep). A shepherd could then note the movements of the animals by hearing the bell, even when the flock was not in sight. The word was first used in the above meaning in the 15th century.” Bellwether, Wikipedia, https://en.wikipedia.org/wiki/Bellwether (last visited Apr. 6, 2025).
35. 466 F. Supp. 3d 1380 (W.D. Mo. 2020).
36. Id. at 1381.
37. In re: Smitty’s/Cam2 303 Tractor Hydraulic Fluid Marketing, Sales Practices and Products Liability Litigation, No. 20-MD-02936, 2023 WL 9064606, at *1 (W.D. Mo. Dec. 13, 2023).
38. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).
39. U.S. Cts. W.D. Mo., supra note 21.
40. Civ. Jury Project at NYU Sch. of L., supra note 3.
41. Id.
42. Id.
43. Susan E. Jones, Judge- Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor, 11 L. & Hum. Behav. 131, 144 (1987) (“Essentially, attorneys, even when they did not utilize the interpersonal behaviors found to facilitate self-disclosure, were still able to elicit greater candor than judges.”).
44. Id. at 131.
45. David C. Mason, Voir Dire and Jury Selection: Ethical and Tactical Considerations for a Successful Voir Dire, Your Mo. Judges (Apr. 15, 2016), https://www.yourmissourijudges.org/wp-content/uploads/2016/09/mason-opinion1.pdf.
46. Id.