Voir Dire

The primary purpose of voir dire is to provide attorneys with enough information about prospective jurors to make intelligent use of peremptory challenges. It is nothing less than the process that permits you to find the audience that will be most receptive to your case.

But the lawyers aren’t the only participants who learn something during voir dire. While you are busy eliciting information from prospective jurors during voir dire, the jurors are rapidly picking up clues about you and your case. They are formulating impressions of the merits of your client’s case and your own credibility, competence and trustworthiness. If your voir dire is haphazard or half-hearted, jurors will undoubtedly draw negative inferences about you and your client’s case.

Voir dire can thus be a highly productive process, providing a wealth of information for making astute challenge decisions - and laying the foundation for your case – or it can be a disastrous waste of time. Effective voir dire and jury selection require careful preparation. This article reviews the pretrial preparation techniques that can help you to develop voir dire and jury selection strategies that will help you to pick the best audience for your case and to give that audience the right impressions.

PLANNING THE QUESTIONING PROCESS · The most fundamental aspect of planning an effective voir dire is to develop a set of appropriate questions for the prospective jurors. This is no time to resort to a list of canned questions that may or may not be relevant to your case. An excellent starting point for developing your questions is to list your case themes. All of your questions should in some way aim to elicit responses that tell you which prospective jurors will be favorably disposed to your case – and which ones you should strike from the panel. (We will discuss specific model questions later in this article.)

Start with "How" and "Why" Questions

Structure your questions to elicit the maximum amount of information from jurors. Ask open-ended questions that begin with phrases like, "Can you tell me a little about…?" or "What have your experiences been with…?" In general, questions that begin with "what" ("What did you study in college?") elicit basic facts and generalities from jurors. Questions that begin with "why" ("Why did you study psychology?") elicit explanations; and "how" questions elicit jurors’ feelings. Generally, you will obtain the most valuable answers with "how" and "why" questions.

Ask Easy Questions First

The order in which you ask questions is important. Most people maintain a low profile in a group. They are nervous and uncomfortable. You give jurors an opportunity to relax if you start the interview with easy, basic questions, such as, "What’s your occupation?" or "Where do you work?" After you have broken the ice, move into questions, which ask about feelings. You are more likely to obtain expansive, meaningful answers if a juror is relaxed.

Review the Questions

When you finish drafting your questions, have others review THEM. Better yet, have someone else read your questions out loud so that you and the reviewers can all hear them. Many lawyers have inadvertently embarrassed an otherwise good juror with a well-intentioned, but poorly phrased question. "Did you ever get to college?" may embarrass the potential juror; "What’s your educational background?" probably won’t.

Plan Alternative and Follow-up Questions

Design several different ways of asking for the same information. If you have told prospective jurors you are interested in them as individuals, and you ask every one of them the same questions, you will reduce your credibility. Follow-up questions will help you to tailor the questioning to the juror and help the jurors to expand on their initial replies. Good follow up questions include, "Can you tell me more about that?" "Why is that?" "how so?" "I’m not sure I quite understand; could you explain?" and "What is it like to…..?"

Don’t Ask About Fairness Unless Challenging for Cause

Eliminate questions about potential jurors’ "fairness" or "impartiality" in your voir dire questions, except when you are pursuing a challenge for cause. Jurors resent being asked if they can be fair, and you rarely get meaningful replies. Save this term for the judge or your pursuit of for-cause challenges.

INTERACTING WITH THE POTENTIAL JURORS · Since the jurors are forming impressions of you and your case, remember, first impressions are lasting. They also affect what happens to incoming information. People accept subsequent information from a source that they view as credible, and reject information from discredited speakers. A positive first impression will give you a halo of credibility and open the door for the prospective jurors to believe you and your witnesses. A negative first impression will do exactly the opposite.

What Prospective Jurors Look For

Jurors will be evaluating your credibility, sincerity, and trustworthiness from the very beginning. They will also be looking for cues about your confidence in the case. Don’t be overly dramatic and don’t go out of character. Be real, be human. Demonstrate your convictions.

Set the Right Tone

The tone you set is important. You want to create a relaxed informal atmosphere in which people feel comfortable speaking up. The formality of the courtroom atmosphere does not invite open, free exchanges. You will have to work at establishing rapport.

Self-Disclosure

Social psychologists regard voir dire as a self-disclosure interview during which an interviewer is seeking information from interviewees about their history, attitudes, and beliefs. Research has consistently demonstrated that self-disclosure on the part of the interviewer leads to greater self-disclosure from the interviewee. People do not readily reveal their thoughts about sensitive topics to strangers. Instead, they reveal themselves to those who have disclosed to them; they "reciprocate," hence the phenomenon known as the "reciprocity effect." People seem to feel compelled to respond in kind to another’s self-disclosure. This principle is often neglected during voir dire.

Overcoming Resistance

Many lawyers offer a cursory introduction of themselves and their clients, begin asking prospective jurors very personal questions, and are then frequently puzzled and frustrated by the "resistance" they meet, or complain that jurors never tell the truth during voir dire. The problem in all likelihood, is a lack of reciprocity. They are asking for too much information while offering too little of it themselves.

Breaking the Ice

Many attorneys very effectively break the ice by acknowledging to jurors that facing a group of strangers can be a little unsettling during the first few minutes. They tell the jury that they can understand how it feels to be in the jury box facing a courtroom full of strangers. Such comments "model" self-disclosure to the prospective jurors. One of the ways we learn to behave appropriately in a new situation is to observe other high-status individuals. Handled with poise, such "admissions" do not diminish the attorney’s credibility, but instead enhances his or her effectiveness in jurors’ minds.

Establishing Empathy

You may want to tell jurors that you understand how difficult it is for them in the jury box. If you’ve been there yourself, you might consider telling them so. Seek to establish a common bond with the jurors. Suggest that by working together perhaps you might be able to help each other feel more at ease and get through the process relatively quickly.

Let Them Know What Your Role Is

Let jurors know that is it difficult to ask some questions, but that you know from past experience that it is helpful to everyone involved if you ask them. Don’t just tell them that you have to ask certain questions for your client’s sake. Jurors know you’re interested in your client. Let the jurors know that you are interested in them. Point out that questioning generally benefits jurors as well. Explain that many jurors in other trials were grateful they had been asked about issues and evidence that would be introduced in the trial. It allowed them to evaluate whether they could be objective jurors for a particular case, and not find out too late that the case presented many personal, painful connections that they could not remove from their thoughts.

"Self-Induced Challenges"

You may also want to model a few so-called self-induced challenges. Think about your own background. What type of case would be difficult for you to sit on as a juror? Think of one, then describe it for the jury. For example, if the situation fit, you might explain to jurors that as a parent of a six-year-old boy who had been injured in an automobile accident involving a drunk driver, it might be rather difficult for you to be an open-minded juror in a driving-while-intoxicated case. It simply might too hard for you to pay attention to the evidence, which would be a disservice to both sides. Explain that in such a case, you feel you would need to be excused from serving on such a jury. Then explain to the panel that you want to give them the opportunity to tell you about the things they feel might interfere with their ability to hear the case. You are essentially inviting jurors to "self-challenge," thereby removing some jurors you might otherwise have to eliminate through a risky challenge for cause. Challenging a sympathetic prospective juror has its risks.

Strive for Openness

Create an atmosphere of openness rather than interrogation. Always encourage the potential juror to tell you how he or she feels, rather than telling "us" or telling "the court." It is easier to reveal feelings to another person than to broadcast them to strangers in a courtroom.

Listening and Reinforcement

One common complaint among former jurors is that they felt the lawyers were more interested in recording their answers than in listening to them. By demonstrating your interest in the replies of jurors, you can show that you value what they say. Have a master seating chart for recording jurors’ names and a checklist of voir dire topics that you plan to cover with each juror. You must be able to talk with jurors and not merely direct questions at them.

READING POTENTIAL JURORS’ BEHAVIOR  Bring along co-counsel, a paralegal, or a consultant, but do not try to conduct voir dire alone! Listening to jurors’ replies, observing their style of answering, noting their nonverbal behavior and recording their responses - all while trying to ask coherent questions and develop a rapport - is too much for one person to accomplish. You need someone else to record potential jurors’ replies and help you to observe their behavior.

When to Keep an Eye on Them

It is absolutely essential to have someone observe the prospective jurors for you while you are asking the questions and to observe them yourself while your opponent is asking the questions. You may get the impression that a juror who frowns while you interview him or her is hostile to you. But if you do not observe that person’s behavior while opposing counsel interviews him or her, you have no way of judging whether our impression was correct. The juror may very well throw the same scowl at your opponent, perhaps signaling nothing more than indigestion or mere resentment at having been called for jury duty.

Reading the Nonverbal Cues

Observe the posture of the potential jurors. Do they look defiant? Are their arms crossed? Are they leaning forward, using gestures as they speak? Do they maintain eye contact while speaking? While they give their answers do they let their eyes roam? Do they appear intimidated? You cannot, of course, catalog and assess every nonverbal signal. But you should stay alert for behaviors such as looking away, leaning back, rolling eyes toward the ceiling, and sighing as if giving each answer is a Herculean effort.

 Watch their Interaction

When you or your assistants observe the potential jurors, you should all try to look at them from a number of vantage points. One very important thing to assess about prospective jurors is their interaction with each other and the court. Try to discern the following about them:

PERSUADERS, PARTICIPANTS, AND NON-PARTICIPANTS · One very important judgment you need to make about each juror before beginning to exercise peremptory challenges is to determine how influential any given juror is likely to be during jury deliberations. Often, lawyers mistakenly look only for one potential foreperson. Research has revealed that in fact, there are three or four likely forepersons on the panel. Observations of hundreds of jury deliberations reveal that jurors display one of three levels of participation in the deliberation room.

Level 1: The "Persuaders"

At one level are the "persuaders." These three or four individuals (roughly 25 percent of the group) make over 50 percent of the statements during deliberations. They are active leaders and coalition builders. They are relatively easy to spot on a jury panel if you are surveying the group for more than one leader. Men in their forties are most likely to be among this group, but it is by no means their exclusive province. Jurors who are active leaders and persuaders can be male or female. Prior jury service often gives them special credibility among other jurors, and an otherwise quieter juror will emerge as a leader. Previous experience managing or supervising people is also a clue that an individual may be a persuader. If you utilize a juror questionnaire (discussed below), you can directly ask potential jurors how often they find themselves in leadership roles. Most jurors are relatively accurate in their self-assessments.

Level 2: The "Participants"

The second group of jurors includes the "participants." These jurors (usually about half of the panel) are very verbal, active, and responsive. In contrast to persuaders, who often offer statements of fact from the trial, participants are more likely to offer opinions. For example, a persuader might say, "Dr. Smith testified that the test results revealed the plaintiff had a serious depression," to which a participant might respond, "Well, in my opinion, he was a pretty unbelievable witness. I don’t trust head doctors." Participants generally do not build coalitions themselves, but actively support the leadership of persuaders.

Level 3: The "Non-participants"

Finally, "non-participants," who make up the remaining three or four jurors, generally say very little. They remain passive and are clearly followers. They volunteer few if any comments, unless called upon by the group to speak, in which case they usually pass on the opportunity to speak or say, "I agree with what Joe said." They will follow the majority inclination.

Why It Matters

The importance of these distinctions is in recognizing where to focus jury challenges. Six peremptory challenges do not seem like a lot when looking at a group of 12. However, it would be a waste of a challenge to eliminate a non-participant in a civil case. Even if such a juror would reject your position, this is not the juror who could persuade others to agree. Instead, focus your challenges on the three or four jurors who are likely to be persuaders and who are likely to oppose your position. If you successfully eliminate them and the replacements are acceptable, you can then turn your focus to participants.

Essentially, this step forces you to look at the individual juror as a group member. Having assessed the jurors’ experiences and background through the voir dire, you must now make one final assessment of jurors’ likely position within the group.

ASKING THE RIGHT QUESTIONS · After you have elicited the information that tells you the jurors really are, you may want to sensitize them to some important concepts. The form of a question influences whether you are asking for information or imparting it; thus, you can use questions as a subtle form of persuasion.

Persuasive Questions

 Questions that persuade rather than ask come in many forms. The trick is to make a statement while asking a question. Jurors will assume that the statement is true, and focus on what is being asked. This tendency to draw "pragmatic implications from implicit suggestions" is a powerful form of persuasion. Listeners tend to encode the inference as a fact and later, when asked, often mistakenly report they heard evidence in support of their inference.

For example, consider this question: "Do you feel that a person who has been injuries through the carelessness of another should absorb his losses and not bring a lawsuit, even though our system of justice was established for this?" On the fact of it, you are asking about attitudes toward lawsuits, when in fact you are stating that someone has been injured and someone was careless. Here’s another example: "Do you believe that of the thousands and thousands of lawsuits filed each year, large corporations are sometimes targets because of their financial resources?" Again, on the face of it, you’re asking about deep pockets, but you are also imparting "facts" about "Thousands and thousands" of lawsuits.

AREAS OF INQUIRY · The following questions are basic areas of inquiry relevant to most cases. These questions were designed for use in a prospective juror questionnaire, but most are easily asked in open court during voir dire.

 Case-Specific Questions

Obviously, there are numerous areas of inquiry that will be unique to the case at hand. These areas will be clear from your pretrial analysis of the case. There are several ways to generate ideas for voir dire questions and deciding how to evaluate jurors in light of their replies

QUESTIONNAIRES · Questionnaires for prospective jurors are extremely effective for soliciting background information. Courts are permitting lawyers to use them with greater frequency and fewer restrictions. They cover far more information than oral voir dire can, and surprisingly, the information is generally very candid and insightful. Many jurors find it easier to express themselves on paper than in open court, and they elaborate in response to questions, which might otherwise receive only one word replies.

Questionnaires Can Save Time

When developed and administered effectively, questionnaires generally save court time. Judges find them useful in expediting hardship requests. In California, attorneys have considerable flexibility in requesting permission to use prospective juror questionnaires. Section 222.5 of the Code of Civil Procedure was recently amended, authorizing the use of written questionnaires. In complex cases with many important issues to cover with jurors, or in cases involving multiple parties, they can be a very useful tool.

ASSESSING THE CASE · Discerning which type of juror will be most receptive to the arguments and issues in a case requires careful attention to key issues, and at times, the application of fundamental marketing research tools. Before conducting the voir dire, or planning a jury selection strategy, it is important to understand the emotional, psychological, or prejudicial elements of the case, which may draw the attention of jurors. You can accomplish this by observing the reactions and thoughts of non-lawyers in focus groups and mock trials.

Focus Groups

An informal, effective way to obtain such insights is to recruit five or six people to spend a few hours serving as your "jurors." Recruit these people from outside legal circles. In fact, most community residents are very interested in being invited to attend a roundtable discussion of their opinions.

Listen, Don’t Advocate

As counsel, you should present a summary of the case and have a colleague, familiar with the issues, present the opposing side. Then listen to the questions and comments from the group. You will be tempted to answer the questions and persuade the group on the merits of your case. Resist the temptation. It is more important that you hear their reactions and their questions. Which issues draw their attention? What assumptions do they make about matters that weren’t presented to them? What analogies do they use in discussing the case? Their comments, questions, and observations can provide valuable insights about what real jurors may think of the issues, and serve as important guides for voir dire and jury selection.

Mock Trials

For more complex cases, consider a more structured investigation. A mock trial is one of the most powerful tools for analyzing your argument strategy and assessing jurors’ likely responses. They provide a wealth of information beyond what a focus group can offer. Mock trials force you to think through the entire case several weeks before trial. Moreover, planning a mock trial demands that you fully evaluate the opposition’s case, because you must present a strong case for the other side if your mock trial is to be meaningful.