Five Fundamental Skills for Voir Dire
Persuasive skills, world-class experts, brilliant cross-examination, and artful use of technology all fail when the jury impaneled is dominated by defense jurors. No other part of the trial is as important. Effective Voir Dire allows a lawyer to deselect jurors who cannot be fair and who will destroy any chance at justice during juror deliberations. Mastery of voir dire requires focus on five fundamental skills:
- Facilitating Disclosure by Prospective Jurors
- Identifying the Probable Deliberation Leaders
- Asking About Biases and Problems that Could Cause You to Lose
- Scripting and Executing Challenges for Cause
- Establishing Themes/Educating the jury on Key Issues
1. Facilitating Disclosure by Prospective Jurors
Prejudices can only be uncovered when voir dire is conducted in an atmosphere that makes jurors comfortable about disclosing their true feelings, and they must be given an opportunity to talk. Simply stated, effective voir dire is when the prospective jurors talk and the lawyer listens. The keys to getting prospective panel members to talk are:
- Use self-disclosure to establish the norm of juror deselection
- Encourage Jurors to Express Themselves
- Don’t be judgmental
- Ask open-ended questions
- Talk to them individually
- Listen to their answers
Use self-disclosure to establish the norm of juror deselection
Voir dire often makes jurors anxious. They may have to speak in public. They are being questioned in public about matters that may be embarrassing. A perfect stranger will be probing into their life and their values. With these emotions bubbling in many jurors, it is not always easy to get them to express their true feelings. A good beginning, a method that builds attorney credibility, is to model the kind of disclosure that is needed from each juror. The examining attorney should disclose a personal bias or attitude that demonstrates what is expected from prospective jurors. Such a disclosure may also help build the credibility of the examining attorney.
There are a number of points that can be made to help establish what is expected from jurors during voir dire. For example:
“All of us have special experiences and feelings that make us who we are. Feelings that we cannot and do not want to set aside. For example, I had a niece who was sexually abused by a daycare worker. I have strong feelings about that. I could never sit on a case involving child abuse. I could not be objective, I would automatically favor one side over another.”
“There are no right or wrong answers to these questions. A very famous judge used to tell his juries, ‘I am going to tell you what the law is, but the beautiful thing about America is that you don’t have to agree with it. You don’t have to say you can be fair to both sides in every case. It doesn’t mean you aren’t a good American, it just means that you may be a better juror for a different kind of case’.”
“Some of you may not like cases involving people who have neck injuries from car wrecks. You are entitled to say you don’t agree with filing lawsuits like that, it doesn’t mean you aren’t a good American, it just means that you may be a better juror for a different kind of case.”
Encourage Jurors to Express Themselves
- Don’t be judgmental
- Ask open-ended questions
- Talk to them individually
- Listen to their answers
It is always helpful to tell jurors what is expected of them. How else would they know? At the beginning of voir dire one of the things prospective jurors may be told something like:
“During the trial you won’t have the opportunity to discuss the case with the witnesses, the judge, the lawyers, or anyone else. You won’t even be able to talk to each other about the case. This will be your only opportunity to express your feelings, and I hope that you will feel free to tell us about yourselves and how you feel about some of the people and the issues that are important in this case.”
Don’t be judgmental
Any facial, verbal, or physical reaction by an attorney to a juror’s comments during voir dire will be read and interpreted by one or more of the other jurors who is sitting there thinking “I am next”. If the attorney’s reaction is perceived as negative or judgmental, it will have a direct and immediate effect on the responses of other members of the panel. It may make the juror being questioned and other jurors more defensive and less forthcoming. It immediately affects attorney credibility.
Ask open-ended questions
Voir dire can be used for deselection only when it is conducted in such a way that jurors do most of the talking. Deselection cannot be accomplished when long statements by attorneys dominate voir dire. Open-ended questions may be first addressed to a large group to find appropriate individuals for follow-up questions. The “group” question is then followed by other open-ended questions directed to targeted individuals. For example:
Initial Question- “How many of you have had someone you know who had a neck or back problem?” (Along with the question the attorney raises his/her hand to model what he/she wants jurors to do.)
Follow-up Question- “Mr. Smith, you raised your hand. Tell me about it.”
Talk to them individually
Everyone likes getting personal attention, and talking to jurors individually is the only way to find out what they really think and feel, and the only way you can make intelligent choices on the use of your peremptory and for cause challenges.
Listen to their answers
Jurors notice what attorneys do when they, or another juror is talking. Making notes, looking away, doing anything else but listening may be considered, at best, rude. The focus of the examining attorney should be entirely on the juror who is talking, including what is said, how it is said, how they look, facial expressions, and the reactions of people to their immediate left and right.
2. Identifying the Probable Leaders in Deliberations
Not all jurors are created equal. Some are leaders in deliberations, controlling discussion and arguing their position(s). Others are opinion shapers, who may not control discussion but are strong willed enough that they play a significant role in the direction of deliberations. Other jurors are followers. Even if they disagree with the direction of deliberations, they rationalize going along with the majority. There is never enough time for voir dire and questions must focus on those who are most likely to impact the nature and direction of deliberations. Among others, three characteristics tend to be present in those who will play a significant role in deliberations. They are:
- Jobs and other activities that indicate a “take charge” personality
- Confidence (including verbal skills and humor)
- Prior jury service.
Jobs and other activities that indicate a “take charge” personality
A prospective juror’s experience in supervision, running meetings, or managing is a fair indicator of their role as one of the leaders during deliberations. This does not mean they will be the leader, just that they have the potential to play a larger than 1/12th role. As such, it may be more important to know what they think and feel than another prospective juror. However, experience with management or supervision is not the only indicator of leadership. For example:
- “Mr. Smith, do you have any social activities where you take a role in organizing, getting things together?
- Yes, my sister and I have a regular tailgate party for our college football games.
- How many people come to these parties?
- 60-70, although we have had as many as 120.
- And what are you responsible for?
- Pretty much everything.”
Clearly, this was a juror who had the potential to play a larger than 1/12th role in deliberations.
Confidence (including verbal skills and humor)
When a juror is able to make jokes during voir dire, a circumstance where many people are anxious, it is likely that this is also a person who may speak up and have a larger role in deliberations. The person who speaks often and well may also assume a larger role in deliberations. However a “chatterbox” or “loudmouth” may not have any credibility within a jury and may only be a marginal participant in deliberations.
Prior jury service
Jurors who have never been on a jury often defer in important ways to jurors who have prior experience. For example, research has shown that prior service as a juror significantly increases the odds of being selected the foreperson in a subsequent trial.
3. Asking About Biases and Problems that Could Cause You to Lose
- Don’t worry that an answer may contaminate the jury pool.
- Make it easy for jurors to express “negative” responses.
- Follow-up on juror answers to get to the real truth.
- Focus on the reasons that you might lose the case.
Don’t worry that an answer may contaminate the jury pool
Many attorneys are fearful that a particular question may allow a juror to express strong feelings that would clearly result in a loss if carried into deliberations by jurors. The fact is that whether or not the questions is asked, some of the prospective jurors will have feelings and biases that will clearly result in a loss if carried into deliberations. It is not just better to bring the feelings out in the voir dire, it is mandatory if there is going to be any attempt to get a fair jury. No matter how “contaminating” the comment, it will not be the first time that other jurors have heard a particular view, and it’s not likely to change the opinion of someone who thinks otherwise.
Make it easy for jurors to express “negative” responses
Anticipating the likely biases and attitudes that identify problem jurors is easy. Helping jurors identify themselves is also easy. For example:
“Some people feel that there are too many lawsuits. How many of you feel that way?” (Along with the question the attorney raises his/her hand to model what he/she wants jurors to do.)
When jurors are individually questioned, it is common to get a really strong, negative response. When this happens it is important that you embrace it, repeating the response. For example:
“I want to thank Mr. Smith; you have done exactly what you are to do-he said that he thought lawsuits were responsible for destroying legitimate businesses and costing jobs. He was being honest, he was being open, he was doing exactly what he is supposed to do. Does anyone else feel that way?
Other comments that make it easy for jurors to express “negative” responses include comments such as: “Thank you for your honesty”, “Lots of people feel that way”, and “I understand how you feel”. These comments should be routinely used whenever a juror makes a disclosure that reveals bias.
Follow-up on juror answers to get to the real truth
Juror responses like “I think I could be fair”, “I would do my best”, and “I would have to hear the evidence” reveal nothing about what the juror really thinks. Follow-up questions to such responses are required (unless you have already decided to use a peremptory challenge). For example:
“Mr. Smith if I asked my wife ‘do you love me’ and she answered, ‘I need to think about it’, I would probably want to ask a few more questions. What else would you like to know? [juror response] How does that question make you feel? What else?”
The question “What else” allows you to exhaust the attitudes and beliefs of a juror being questioned. One of the reasons “What else” works so well is that it incorporates an assumption that there is additional information that hasn’t been mentioned. When dealing with issues of attitude and belief critical to a case, exhaustion of information may be extremely important.
Focus on the reasons that you might lose the case
When voir dire is time limited (and it often is), the critical attitudes and biases that will lose the case must be explored in order to deselect jurors who cannot be fair. In a typical auto case juror attitudes that can destroy any chance of a fair deliberation include any or all of the following:
- awarding money for injuries isn’t right;
- someone who didn’t report injury at the scene can’t be hurt;
- if there isn’t anything on the x-ray, they can’t be hurt;
- if there isn’t any property damage, the plaintiff can’t be hurt; and/or
- someone who had a pre-existing problem probably wasn’t hurt in this wreck.
These attitudes and biases must be explored, openly and directly. Jurors who have these attitudes will destroy any chance for just deliberations. An example of voir dire on such as issue is:
Q. “I want to talk to you about an issue that concerns me, my client 22 is immature and she had never been hurt before. When she was asked ‘Are you hurt’, all she could think about was how would she be able to get to work. Being a little sore wasn’t very important.
How do you feel about the fact that she didn’t tell anyone?
A. I still think someone who was hurt would have said something.
Q. Does the fact that she didn’t make it hard for you to believe she was hurt?
A. Yes
Q. Would it be hard for you to accept the opinion of her doctor about her injury?
A. Maybe.
Q. If you were weighing the testimony of her doctor against the testimony of the doctor hired by the defense, would it be hard to treat them equally? Would you tend to believe the other doctor over her doctor?
Q. Probably
Q. Would that fact make it so hard on you to be a fair juror on this case that you would be a better juror on another case?
A. Yes.
4. Scripting and Executing Challenges for Cause
It is more constructive to think of “challenges” as invitations and offers to jurors to get off the panel rather than aggressive questioning. Courts have wide discretion in granting challenges for cause and they may be reticent when challenges threaten to decimate their available jury pool or make the trial take longer. The best challenge is when the juror decides on their own that they cannot be fair, and no judicial “rehabilitation” is possible.
Creating the juror testimony that allows challenges for cause is not easy when attempted extemporaneously. Many of the least desirable jurors may be motivated to serve on a jury. It is essential that pre-trial a “script” for challenges be written for case critical biases and attitudes. This technique includes the following elements:
- Target probable defense jurors first
- Elicit a rationalization for the opinion-Lock it in
- Establish that the opinion will not be set aside
Target probable defense jurors first
Prioritize who is challenged. Does it make sense to spend time challenging someone who is unlikely to play a significant role in deliberations? What about a juror who had prior service as a juror, and who also has expressed strong negative feelings about a case critical issue? Clearly, it makes sense to first go after the most problematic jurors, e.g. those who may be leaders in deliberations.
These jurors will be often be identified when they raise a hand in response to a question like:
“Who Agrees with Mr. Smith?” (Raising Hand)
However, the timing of when you challenge should be a function of whom you think are the most problematic jurors on the panel. You may have to poll the jury about several case critical issues to get a feel about which jurors are your biggest problems. For example when a juror has raised his/her hand as having negative feelings about three negative case critical issues, and/or they look like a deliberation leader, challenging them for cause should be a priority.
Elicit a rationalization for the opinion – Lock it in
Whenever possible, the questions asked should allow the prospective juror to explain/rationalize why or how he/she came to have a particular attitude or feeling. Although the prospective juror may not have spent much time thinking about the how or why of an attitude, when asked he/she is likely to provide what is thought to be a reasonable explanation. Once the respondent begins this explanation, it should be expanded and confirmed in such a way that “rehabilitation” is not possible. For example, some of the following questions allow a questioner to lock in a response:
- How did you come to this opinion/feeling? [or when a juror responds or initiates a hostile question-why is that important to you? How would that affect your opinion of the case?]
- What have you experienced that leads you to this?
- Do other people in your family feel this way?
- How long have you felt this way?
Establish that the opinion will not be set aside
Any script for a challenge must anticipate attempts by the judge or juror at rehabilitation. Juror testimony must establish that the opinion is strong and not changeable. Some examples of questions that help bulletproof the juror’s opinion include:
- Is it fair to say that this is a strong feeling?
- Have you had people disagree with your opinions before?
- Does having a different opinion bother you?
- If someone disagrees does that change your opinion?
- Are you likely to change your mine just because someone asks you to?
- Are you likely to set aside your beliefs just so you could serve on this jury?
- Is there anything that someone could say to change your mind about this?
Examples of Challenges for Cause Scripts:
The anti-money damages juror
“I am asking for millions of dollars in this case, but some of you are thinking ‘I could never consider awarding millions of dollars unless you prove it beyond a reasonable doubt’ who feels that way? (raise your hand)”
Q. How did you come to have this feeling?
A. Blah blah blah.
Q. Why is it important to you?
A. Blah blah blah.
Q. Do you have family members or friend that feel this way?
A. Yes.
Q. How long have you felt this way?
A. Blah blah blah.
Q. Is it fair to say that this is a strong feeling?
A. Blah blah blah.
Q. Are you likely to change your mind just because someone asks you to?
A. No.
Q. Is there anything that someone could say to change your mind about this?
A. No.
Too many fraudulent lawsuits
Q. So you have strong feelings that people are too quick to sue over anything?
A. Absolutely.
Q. Can you explain why you feel that way?
A. Blah blah blah.
Q. And you believe that many lawsuits are frauds, that the people are lying about what happened and whether they were injured?
A. Yes.
Q. What has brought you to believe that?
A. Blah blah blah.
Q. What else?
Q. So you are likely to go into a case believing that the person suing is lying or exaggerating?
A. Yeah.
Q. Are you likely to change your mind just because someone asks you to?
A. No.
Loss of Consortium
Q. Mr. Smith, my client William Jones has a claim for what is known as a loss of consortium. In other words, he is claiming that because of the trucking company’s negligence, which seriously injured his wife, he also has been injured. This claim includes the loss of marital relations, companionship, and services. How do you feel about that?
A. Well, I don’t think a man should get paid for sticking with his wife, you know ‘in sickness and health’ and all that.
Q. How long have you felt that way?
A. Blah blah blah.
Q. Do you have family members that feel like this too?
A. Blah blah blah.
Q. Do you feel strongly about this?
A. Yes.
Q. Are you likely to change your mind just because someone asks you to?
A. No.
Q. Is there anything that someone could say to change your mind about this?
A. No.
Q. Do you understand that in this case Mr. Jones is making a claim for what he has experienced as a result of her ‘sickness and health’?
A. Yes.
Q. Do you understand that the law recognizes claims like Mr. Jones’ when his spouse is hurt?
A. Yes.
Q. It sounds like you might have some difficulty awarding Mr. Jones money damages if his relations with his wife were disrupted. Is that fair to say?
A. Yes.
Q. Given your feelings, is it fair to say that I might have to put on more evidence to convince you than someone who didn’t have those feelings?
A. Yes.
Q. And I might not be able to convince you no matter what I said, no matter what the proof was?
A. Yes.
Q. Would it be fair to say that it would be easier for you to be fair in a case where this wasn’t an issue?
A. Yes.
5. Establishing Themes/Educating the Jury on Key Issues
- Neutralize Defense Juror Arguments that will be used in deliberations
- Loop favorable “testimony” from other prospective jurors
- Anchor key points with Visual aids.
The primary goal of voir dire is to deselect jurors who have biases and attitudes that would destroy a just deliberation. However, a secondary goal is to prepare jurors for the proof in the case and for deliberations. There are some things that jurors need to remember and understand that may not be part of the proof.
Neutralize Defense Juror Arguments that will be used in deliberations
During deliberations defense jurors will articulate attitudes and arguments that have nothing to do with the proof or the case. Other jurors who have been immunized during the voir dire are the best counter to these arguments. Pre-trial these kinds of arguments must be identified (using focus groups if possible) and a neutralizing statement prepared. For example, a defense juror may argue that all the medical bills have been paid by insurance and shouldn’t be included in any verdict. A neutralizing statement used in voir dire (and argument as well) might be:
“I am worried that when I show you $200K in medical bills, I am afraid someone in the jury room will say ‘maybe he has a rich uncle, maybe someone else will pay’. You cannot assume this or anything else that is not part of the evidence. Mr. Smith, if someone says this in the jury room would you be able to say ‘That’s not part of our job, we have to decide the case on the evidence.’ Would you be able to do that?”
“If after hearing all the proof someone on this jury says: ‘let’s reduce the amount Mr. Jones gets because I had an uncle that got hurt and he did a lot better…’ that might be jury misconduct and we might have to start this trial all over again. Could you tell that juror, ‘we have to follow the law and the facts of this case, what happened with your uncle doesn’t count here’? Could you do that Mr. Smith?”
Loop favorable “testimony” from other prospective jurors
During any voir dire prospective jurors will say things that are favorable, even dispositive, of critical case issues. One thing occurs when this happens; your opposing counsel marks this juror for a strike. The odds of this juror deliberating on the case are very remote, however their attitudes and feelings can be used to credibly educate other jurors about case critical issues. When this happens, resign yourself to losing this juror, but take advantage of them. Throughout the voir dire these jurors can be called on to give “testimony” on the issues that are case critical. This “testimony” can also be used to get other jurors in alignment making it difficult for the opposition to strike every plaintiff-favorable juror. For example, when you have gotten and then expanded on favorable testimony begin with the adjacent jurors to left and right and ask:
“Mr. Jones, how do you feel about what Mr. Smith has said?”
Anchor key points with Visual aids
If you want jurors to remember something from voir dire, you have to make some effort to make it memorable. Using some visual or visual imagery to anchor key points is one of the easiest ways to increase juror retention of critical information. For example if the definition of proximate cause is important in your case, the following might be appropriate:
“Proximate Cause is a critical issue in this case. Here (showing visual of definition) is the legal definition of proximate cause. I don’t want you to be fearful when you see this term; I want you to remember it. It looks a little complicated, but think of it this way: if someone was a smoker and smoked three different brands of cigarettes off and on over 20 years, and they developed lung cancer from cigarettes. Which brand was the proximate cause of their cancer? Well each would be, right? How do you feel about that Mr. Smith?”
