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KenLopez resized 152

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.


ryanflax blog litigation consultant 

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.


dr laurie kuslansky jury consultant a2l consulting
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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Jury Selection and Voir Dire: Don't Ask, Don't Know

 


jury selection tips voir dire questions consultantby Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant

John Colville once said of Winston Churchill,  “He fertilizes a phrase or a line of poetry for weeks and then gives birth to it in a speech.”

The same holds true for great voir dire questions asked during jury selection. How a question is asked dictates how it is answered: Skillful voir dire questions result from keen awareness of potential nuances, precise wording, intentional phrasing, and delivery.

Notice what certain variations elicit:

“Someone who files a formal discrimination complaint probably has a valid case” (48% agree nationally).  Many of the same people, however, agreed that “People often claim discrimination when they don’t get what they want” (52%) and that “Poor performers are much more likely to complain of discrimination than good performers” (55%).

Similarly, when asked “Do you believe there are too many lawsuits nowadays?” 79% of people nationally say “Yes.”

(Follow-up question: If someone is badly hurt by a product, do you think it’s frivolous of them to sue the company that made it? Most common answer: “No.”)

Are you an environmentalist? Most common answer: “Yes.”

(Follow-up question: Are you a member of or do you contribute money to any environmental organizations? Most common answer: “No.”)

Do you believe in racial profiling? Most common answer: “No.”

(Follow-up question: Should people from Muslim countries get extra scrutiny? Most common answer: “Yes.”)

The answers to those follow-up questions reveal different mindsets than the often-misleading answers to the primary questions, which can lead to mistaken judgments.  Good follow-up questions yield important information, but are often unasked. Don’t be satisfied (or worried) too soon by the first answer you get.

 

Research by Judge Gregory E. Mize (retired D.C. Superior Court trial judge and co-chair of the D.C. Jury Project) revealed that while 28% of prospective jurors in both civil and criminal cases failed to respond affirmatively to questions in open court, 10% of those “silent ones” in civil cases and 17.5% in criminal cases later revealed biases that yielded a cause strike in follow-up individual interviews.

Posed in the proper environment, follow-up questions are indispensable tools to provide a basis for cause strikes. The more cause strikes you achieve, the better use you can make of peremptory challenges to avoid undesirable jurors. Without such measures, biased jurors end up on the jury.

Skilled investigators know that closed-ended questioning (e.g., “When did you leave the bar?”) yields 85% less information than “free-format” interviews using open-ended questions (e.g., “Tell me what you did that night?”), which allow the respondent to recall and report more through free association. If given the time and space to do so without interruption, people reveal important information.

The tendency is to jump on a worrisome or interesting answer. However, better listening may provide more clues to people’s character, motives, biases, and experiences.  Reserve questions to learn specific information.

Here are some tips:

  • Establish rapport, especially with unfavorable jurors.

  • Make it easy for them to reveal why they are not good jurors for your client. It is a win-win situation: You will have a clearer basis to strike them or, if they end up on the jury, you will benefit from sharing a positive exchange with them.
     
  • Make jurors feel that it’s safe to talk. Beware of putting jurors on the spot or not protecting their privacy in open court, which makes them feel self-protective.
     
  • Leave them room to talk. “Take a beat,” a phrase borrowed from the stage, means to leave a moment’s silence after the other person answers in case they have something to add. The best information often comes out as an afterthought once a juror ponders a bit.
     
  • Don’t move on too quickly. Following a strict list of questions removes the spontaneity of “conversation” with potential jurors, suppresses their potential disclosures, and creates a deposition-like atmosphere that sends the message:  “Just tell me what I asked and nothing more.” This is counterproductive.
     
  • Reserve scripted questions to learn critical, specific information.

Whether due to a hidden agenda to remain on the jury or out of discomfort in revealing it, some jurors attempt to conceal bias. Stealth enemies are critical to ferret out.

  • Invite and cajole the jurors. Make it acceptable for them to expose their bias.
     
  • To hone your skills at getting at the truth, read about investigative techniques to detecting lies and deceit.

It takes two people to learn the truth: one to tell it and one to listen and make it safe for them to tell it. Inquiring lawyers must make prospective jurors feel safe to reveal the truth.

 

This is the first in a series of five posts on jury selection and trial consultants. Other parts are linked here: Part 1, Part 2, Part 3, Part 4 & Part 5.

 

Other A2L Articles related to jury selection, voir dire and jury trial practice:

 

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Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more; 

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Comments

"Don't Ask, Don't Know" maybe the best title I have seen all year. I love it. It sums up how to do voir dire in four little words.
Posted @ Tuesday, September 24, 2013 7:32 AM by roy black
Dear Mr. Black, 
Thank you for your kind and concise comments as well. As Shakespeare said, "Brevity is the soul of wit."
Posted @ Tuesday, September 24, 2013 7:36 AM by Dr. Laurie Kuslansky
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