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Why Do I Need A Mock Trial If There Is No Real Voir Dire?

Laurie Kuslansky
By: Laurie Kuslansky

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

 

by Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Answer: So you can learn the best story for the worst jury.

Have you ever gotten to your seat on an airplane and, without speaking to anyone, seen who was next to you and thought, “This is gonna be trouble!”? Or boarded a train and decided to keep walking before choosing your seat? Of course you have. And that’s because there is a wealth of information that we, as humans, gather instinctively and automatically all the time. 

We observe a myriad of valuable information before any questions are asked out loud, such as:

  • How does someone look?
  • Are they attractive?
  • Are they neat or sloppy?
  • Do they appear dressed appropriately for court?
  • Are they flamboyant or conservative?
  • Did they show up on time?
  • Are they chatting with neighbors or reading a book?
  • Are they using Kindle or reading People magazine?
  • Are they fidgeting?
  • Are they asking someone questions?
  • Did they drop everything on the floor?
  • Are they limping on the way to their seat?
  • Are they having problems seeing or hearing?
  • Did they complete the jury summons form correctly?
  • According to the form, where do they live and work? Do they have children and where do they work? How’s their spelling and punctuation on the form?
  • Are they speaking too loudly?
  • Are they laughing and acting like they’re on stage?
  • Do they have photos on their Facebook profile for the entire world to see?
  • Are they on LinkedIn or on Plenty of Fish?
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If you can answer these questions, you know most of what you need to know to make important jury-selection choices – but only if you know how best to use this information, i.e., what are the personality traits that may indicate adverse jurors, who are unlikely to favor your client and your view of damages. So, the real issue isn’t whether you can control voir dire, but what to do with the information that you can glean with your ears and eyes (and maybe a few keystrokes on a laptop).

What does “no real voir dire” mean?

There are several typical scenarios for voir dire:

1)    Counsel has almost unlimited ability to directly ask prospective jurors questions

2)    Counsel can use an extensive written jury questionnaire

3)    Counsel can ask a few questions directly

4)    Counsel can only ask a few follow-up questions

5)    The judge or clerk conducts an extensive or abbreviated voir dire and accept a few proposed questions from counsel or not

6)    There is a liberal or draconian policy about letting people off for claimed hardships.

7)    Cause is construed very narrowly or broadly by the Court.

8)    The judge or clerk conducts voir dire just looking for a pulse and accept everyone who does.

In each of these scenarios, you will be permitted unlimited strikes for cause that the judge accepts and limited (usually 3 per side) peremptory strikes. The key is to fight to use cause strikes against harmful biases and exercise your peremptory strikes against true enemies and not inadvertently strike potentially good jurors or mildly bad ones in favor of worse ones. The question is: how do you know which ones they are?  It isn’t because you can’t get relevant information about them because you didn’t get to ask, but because you need a reliable blueprint for what makes a potentially bad juror for your case, or you risk striking blindly.

The only thing worse than being blind is having sight but no vision." (Helen Keller)

Jury research is one of the only ways to avoid that by informing your vision. In particular, several critical outcomes emerge from properly conducted jury research which can provide counsel with night vision goggles, so that even if you operate largely in the dark at voir dire, you are armed with:

1)    A thematic story of your case that works best for most jurors – good and bad alike;

2)    A list of statistically significant traits, attitudes and experiences that jurors most adverse to your case seem to share.

3)    A clear sense of the issues, facts, evidence and arguments that detractors reject in your case and why, as well as how to overcome them (e.g., What they’d need to hear or see to accept your position, which reasoning or argument turned them off and how you can modify it, and the like).

4)    Knowledge about what was misunderstood, distorted or unclear, and what you need to do about educating before you advocate.

“No voir dire” is a myth. It’s that simple. It is only a short-sighted, narrow view of voir dire that permits the belief that, just because counsel doesn’t ask the questions or there isn’t an extensive opportunity to make inquiry of prospective jurors, that it is an all-or-nothing proposition when it is not.

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In our daily lives, without interrogating strangers, we make judgment calls all the time about who seems dangerous, who seems friendly, and many other “attributions.” That is, we can draw inferences about other people without asking them a single question. It is ingrained and a matter of survival. The key to doing so effectively in court is to be a skilled observer, knowing what you are looking for and looking out for, and avoiding what is called the “fundamental attribution error” (Lee D. Ross), which is attributing causes for observed traits to internal factors (such as personality characteristics) rather than to external, situational variables (such as how the setting may alter a person’s behavior, dress and mannerisms). Consider how the setting may itself be altering prospective jurors’ natural tendencies, if at all.

What is interesting and useful in the courtroom setting is that the situational variables (an unusually authoritarian, formal setting to most prospective jurors) and how people react to it is, in and of itself, critical information to consider in limited voir dire situations insofar as one can see, for example, how people dress for court. If they are wearing a running suit or a business suit speaks volumes, and if they are doing so because they hope to get out of being picked and going straight to work – whether as a gym instructor or financial analyst – you are likely to know and draw the proper inferences about them.  If someone is tardy or punctual is itself a marker of behavior that people draw inferences about everywhere else in life, so why not in the courtroom?

In brief, jury research is more important than ever when you will be making important decisions based on limited information and the information you get matters, but only reliable data can tell you how.

Other articles related to mock trials, mock juries, jury consultants, voir dire and jury selection on A2L Consulting's site:

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