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The Litigation Consulting Report

5 Questions to Ask in Voir Dire . . . Always

Posted by Laurie Kuslansky on Fri, Jul 12, 2013 @ 08:45 AM

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best voir dire questions to ask mock trial federal courtby Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant

The meaning of the term "voir dire"  translated literally, means "See say,” but figuratively means “to speak the truth." In common practice, "voir dire" describes the process of questioning potential jurors, by judge or litigator, in advance of a jury trial to uncover conflicts, biases or other reasons to dismiss the potential juror.

The stated goal of voir dire is to impanel an impartial jury. However, in the majority of courts that allow voir dire questions by counsel, the goal of each side of the case is to get the best jury for their client possible through a process of revealing and eliminating those who are most adverse. Through a combination of dismissals for cause and peremptory challenges, potential jurors are removed from the pool of jurors. As an example of the traditional process, see this description of the voir dire process written for those called for jury duty in the Southern District of New York.

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In cases where the sides agree and the judge permits, jury selection often begins with a series of written questions agreed to by all parties. Ideally, mock jury pre-trial research is conducted to identify the most important and revealing questions to include based on the types of jurors who tend to look most unfavorably on the client's case. In court, once prospective jurors’ information and responses are received, there is often very limited time in which to conduct additional fact-finding research and evaluate the responses.

Many litigators mistakenly believe that voir dire is conducted only by judges in federal court. This is simply not true. I have conducted mock trials focused on voir dire and voir dire consulting in a majority of states in the U.S. On many occasions, this was done in preparation for a federal trial. This recent ABA article does a good job of describing the state of voir dire in the federal courtsEven in those courts where the judge or the clerk conducts the voir dire, many accept proposed questions from counsel. The key is to know which, few questions are most productive.

Since the voir dire process can help determine the outcome of a case, it is essential to use it to your advantage. With the foregoing in mind, here are five questions I would always suggest asking in voir dire, whether in state court, in federal court, on a jury questionnaire, or among the questions presented to your judge to ask.

  1. If you were my client, would you be completely comfortable having you as a juror on this case?
  2. Can you think of anything in your own life that reminds you of this case?  What and how?
  3. Is there anything that you have seen or heard that would make it hard for you to guarantee to judge my client the same as the other side?
  4. Is there anything you’d prefer to discuss in private?
  5. Is there anything we haven’t asked you that you think we should know?

Each of these questions is designed in one way or another to uncover biases that might hurt your client. Each is designed to provoke deeper thinking and candid responses, rather than meaningless knee-jerk ones which are politically correct, but not helpful in decision making during jury selection. Each is open ended and designed to avoid a simple yes or no answer. 

Other articles related to jury selection, mock trials and trial consulting you might find helpful:

Tags: Trial Consultants, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection

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Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.

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Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@a2lc.com.

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Laurie R. Kuslansky, Ph.D, Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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