Business Ethics Voir Dire

Better Voir Dire in Business Litigation Cases

The term “business litigation” is a catch-all phrase that encompasses a broad array of claims arising out of a commercial transaction or business relationship. Regardless of the specific circumstances that gave rise to the litigation, it is important to ask prospective jurors about their attitudes toward business ethics in every business/commercial case.  That’s the advice of Susan Broome, Ph.D., a trial consultant who has been working with juries and helping lawyers prepare for trial for more than 20 years.

Why Are Jurors’ Attitudes About Business Ethics Important?

According to Dr. Broome, questions about the ethics and morality of people in business are important because they reveal whether jurors hold the business world to a commonly accepted standard of trust and honesty, or if they feel that the business world operates according to its own ethics (frequently identified by jurors as “business is business”). Jurors who believe the business world operates according to its own ethics are more likely to consider the context in which decisions were made. Their reasoning is guided by the question, “What was reasonable under the circumstances?” On the other hand, jurors who apply the same standard of trust and morality to business transactions that they apply to their personal lives will ask, “Is this how I would behave? Is this how I would expect to be treated?” In deliberations, jurors will work to balance the responsibilities of the plaintiff and the defendant. They also will consider the role of government regulators and the law.

Pattern Voir Dire Questions

To explore jurors’ attitudes about business ethics, ask the bold-faced questions listed below, and listen carefully to the jurors’ responses. Always ask follow-up questions that force the prospective juror to explain the thought process behind his answer. This is how you find out how a juror really feels and expose hidden biases.

Do you think corporations generally treat their employees well?

• Why do you feel that way?

What, if any, business practices do you find offensive?

• Why do you feel that way?
• How would you do things differently?
• What is a better way for business to be conducted?

Some people feel that businesses have to bend the rules sometimes to be successful and that their behavior should not be punished. Other people think such behavior should be punished. What do you think?

• Why do you think that?
• Can you give me an example of when bending the rules might or might not be acceptable?

Do you think there is a difference in the honesty and trustworthiness of large companies as opposed to small companies?

• What is the difference?
• Why do you think that?

What are your general feelings about people who work in the business sector (Probe: e.g., in contrast to people who work in education or the non-profit sector)?

• How competent are they?
• How honest are they?
• What motivates them?
• Why do you feel that way?

How trustworthy are people who work in the business sector?

• Why do you feel that way?

Some people think that business people are too concerned about making money and not concerned enough about the ethics of doing business. What do you think?

• Why do you say that?
• Can you give me an example of a business [or industry/company?] that is more concerned about money than ethics?
• Can you give me an example of an ethical business [industry/company]?
• Why or why not?
• Why do you feel that way?
• To what standard should they be held?

Sometimes a person or a business will apologize when accused of wronging. Is saying “I’m sorry” equivalent to taking responsibility?

• Is acknowledging liability without taking any steps to correct the problem enough?
• How do you feel about someone who says, “I’m sorry,” but refuses to do more?
• Does someone really mean “I’m sorry” if he doesn’t do more?

What responsibility does an individual have to make sure she is not harmed in a business venture/transaction?

• Do you rely on people in the defendant’s field to protect you from harm? Why [not]?
• Why do people rely on professionals in the defendant’s field?
• How do you select a good professional?

Have you ever felt wronged in a business venture? (Probe: Have you ever felt you were taken advantage of in a business deal?)

• What happened?
• What were the circumstances?
• When did this happen?
• What did you do about it?
• What was the outcome?
• Were you satisfied with the outcome?
• If not, what do you think you should have done about it? What would you have done differently?

Does the government adequately regulate business so that it is generally fair and ethical?

• Why do you think that?
• Do you think that the government over-regulates sometimes and makes it more difficult for business than necessary?
• In what ways? Can you give me an example?
• Do you think there should be more government regulation of business?
• What kinds of additional regulations would you like to see in place? 

Does the government give businesses and business owners special treatment not afforded to individuals?

• What kinds of special treatment do businesses and business owners receive?
• How do you feel about that?

Does the government give big businesses and/or their owners special treatment not afforded to small businesses and/or their owners?

• What kinds of special treatment do big businesses and their owners receive?
• How do you feel about that?

Susan Broome, Ph.D., is a trial consultant in Boston, Massachusetts. She earned her B.A. from Columbia University; her M.A. from Tufts University; and her Ph.D., in Psychology, from Clark University. Dr. Broome is the author of Pattern Voir Dire Questions, from which these questions are excerpted.

Pattern Voir Dire Questions is a collection of more than 1,700 voir dire questions for 26 different types of cases – civil and criminal.  The book covers a vast and broad array of topics, from assault and battery to employment discrimination, to pain and suffering, and workplace safety.  It includes fact-specific questions, as well as questions that probe jurors’ attitudes on broader issues. A Topical Index of Questions gives you an alternative way to find just the right questions for your case and make sure you have covered all the bases.