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Is It Better to Have Greater or Fewer Peremptory Strikes?



| By Christina Marinakis, JD, PsyD, Former IMS Strategy & Jury Consulting Advisor

While the number of peremptory strikes allotted is typically prescribed by statute, there are some instances—such as when there are multiple defendants—where statutes may provide the parties with additional strikes. Many of these provisions require the judge to make an interpretation of the rule or determine whether parties on the same side have adverse interests. In these instances, clients have asked us, “Is it to our advantage to request additional strikes?” Although the answer is always, “it depends,” in most jurisdictions and for most defendants, the answer is usually, “No.”

When Can Parties Request Additional Strikes?

To set the stage, it may help to begin with some statutory language that allows parties to request additional strikes. For example, 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 according to their respective interests in the issues.” Each side is then “entitled to eight peremptory challenges.” California Code of Procedure 231(b).

Throughout my years of experience in California courts, it seems judges have interpreted this language differently. Some judges believe that the “shall” language means that each side must be provided eight strikes. Other judges have noted that the “shall” only applies to dividing the parties into two sides, and the parties must then elect whether to have six or eight strikes. Further, some judges have ruled that only the side with more than one party is entitled to select whether to have six or eight peremptories. I have also seen instances where the judge or plaintiff has not raised the issue at all, merely assuming that the statutory standard in all cases is six.

In addition, since the statute indicates there can be more than two sides, co-defendants who are pointing the finger at each other could argue that they have different and adverse interests and, therefore, the parties should be divided into three sides. In that instance, the statute states, “If there are more than two sides, the court shall grant such additional peremptory challenges to a side as the interests of justice may require, provided that the peremptory challenges of one side shall not exceed the aggregate number of peremptory challenges of all other sides.” The point of all this is that the number of peremptory strikes allowed is not always black and white. There is often some wiggle room for the parties to argue that they are entitled to more, but is more necessarily better?

Why Is It Usually Better to Have Fewer Strikes?

At first blush, most defendants—especially unpopular corporations—may believe that more strikes mean they can get rid of more “bad” jurors for their case. However, in most cases the plaintiff is entitled to the same number of strikes, and more strikes means they can get rid of more of your good jurors as well. Since “good” jurors are usually few and far between when you are representing an unpopular defendant or facing a sympathetic plaintiff, the benefit of getting rid of more bad jurors is outweighed by the plaintiff’s ability to strike every single good juror who may be an advocate for your client in deliberations. In sum, it is usually better to have one voice for your client and one risky juror on the panel than to have no advocates who will speak for your client or keep damages anchored. This is particularly true in jurisdictions that require a unanimous verdict.

What Are the Exceptions?

In rare instances, a judge may decide that the co-defendants, collectively, may request additional strikes, while the plaintiff is limited to the statutorily prescribed minimum. This happened one time while working with two co-defendants in Delaware. In that instance, we jumped on the chance to have more strikes than the plaintiff. Another rare instance may be when you are in a jurisdiction that is known to be better for defendants, or when you are facing an unpopular plaintiff.

In Conclusion

While there are many factors to consider when deciding whether to argue for more peremptory strikes, for most defendants less is usually more. Most importantly, knowing the rules for your jurisdiction before going into court allows you to be prepared to argue for or against the position that benefits your client.

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