Jury selection certainly can have dire consequences. A case can be won or lost in voir dire. All you need is one or two strident enemy jurors to pull you down. The truth, typically, is that extremists are removed through cause or peremptory challenges. Who remains tends to be mildly favorable or unfavorable, saddled next to ones who hardly care. The key in voir dire is to identify extremists and understand what it will take to satisfy those who are left.
How can you do that?1. Invite doubters to admit their doubt of your client, for example:
- Can you guarantee that, if the plaintiff doesn’t prove its case based on the evidence, you will find for my client? (Or, for plaintiff: Can you guarantee that, if the plaintiff does prove its case based on the evidence, you would find for my client?)
- Is there any reason you’d give the benefit of the doubt to the other side? Explain.
- Please explain if there’s any reason you couldn’t give my client the benefit of the doubt.
- There are many reasons why people don’t look at both sides in a lawsuit the same way.
- Does anything stand out to you about my client that puts them at a disadvantage? Explain.
- Many people have had experiences that come to mind when they are on a jury. What have you experienced that comes to mind in this case?
- Lots of people have strong opinions. Can you think of anything about this case that strikes a chord? Explain.
- Do you have any training, education or experience that makes you feel you’d be especially good at understanding the facts of this case? Describe that. If not, would you feel uncomfortable with this type of information for any reason?
- Please raise your hand if, for any reason, both sides of this lawsuit aren’t completely equal in your mind. Explain.
2. For jurors you don’t like, but can’t strike (either rejected on a cause challenge or you’ve run out of peremptory strikes), distinguish how this case/your client differs from their bias against you. For example:
- I understand that you have a certain distrust for doctors based on your own experience. Does it make a difference for you that the doctor involved in this case is not actually a defendant? Why/not?
- You mentioned a bad experience with a tax advisor. Is it fair to assume that the issue was not because you gave incorrect or false information to your advisor? Do you understand that in this case, the issue is whether or not the corporation which is suing its auditor provided honest information to the auditor and how that is different than what happened to you?
3. Don’t waste their time.
- Ask the fewest, but most pertinent questions. They will appreciate you respecting their time.
- Don’t try to be too “cute;” jurors think certain questions are silly and don’t understand how they relate to the case (“Do you have any bumper stickers?” “Do you read People magazine?”). Only ask such questions if you have a strong reason to do so. Curiosity is insufficient.
- Create a plan to be as efficient as possible during voir dire:
- Check with the clerk what the judge’s procedures will be
- Streamline the number of questions you propose to the judge if he or she asks the questions
- Be organized in how you and your team will solicit information and keep track of it during the jury selection. Fancy charts may not be what you need to keep notes/track and substitutions wreak havoc on the lovely seating plan once it changes.
- Determine in advance who will do what (e.g., track cause information, watch for Batson issues, record the details of each juror, who will argue cause, who will have final say in peremptory strikes, how that decision will be made, etc.)
4. Don’t overload on cooks in the kitchen
- It is common for members of a trial team with little to no experience at jury selection to pipe in their opinions strongly during decision-making about the jury when the stakes are high, information is too scarce or too abundant, and time is very limited. The “democratic” approach – in which everyone has a say -- is misguided and distracting at best, and can lead to very poor choices at worst.
- Naïve/inexperienced folks tend to over-emphasize one comment, disregard potential for leadership (or the lack thereof), or overlook serious red flags. Using a data-driven jury profile with an experienced jury consultant, teaming up with lead counsel, and factoring in the client’s opinion, is a safer and better way to go, typically.
- If there are other, experienced people on the team, plan to get their opinions and insights, but don’t engage in a debate with multiple people. As they say, ”a camel is a horse designed by a committee.” If you need a race horse, don’t decide by committee. Determine the hierarchy in advance.
- To accomplish this approach successfully without stepping on toes, wasting time at crunch time, or hurting feelings – plan and discuss who will participate and how – before you get there so there’s no confusion or wasted time.
5. You can’t always get what you want, but ...
- If you are the defense and want sophisticated, educated individuals on the jury, but there aren’t any, what else might work that is realistic? For example, can you bring the information down to a level that people with a high-school education can grasp? Can you use points of reference that resonate for lower income people?
- If you can’t change the venue and the jury pool, what can you change for a better fit between your case story and the likely jury?
- Are your themes understandable and likable to people from the local jury pool?
- Have you researched what topics may be hot buttons to avoid or exploit?
- Have you checked the local newspaper to ask pertinent questions on what prospective jurors have read and what opinions they’ve formed, if any?
6. Respect privacy
- Understandably, there are often delicate subjects you must inquire about in voir dire, but the answers will only be as candid as the environment is not threatening and protects their privacy.
- Be sure to check in advance with the Court how they will approach issues that merit privacy and how the judge or clerk will orchestrate such inquiry.
- Get the judge’s assurance, if possible, that they will advise prospective jurors that their privacy will be protected.
- Be as broad-minded as possible in considering what prospective jurors might consider uncomfortable or embarrassing to reveal in open court (e.g., being demoted/fired, going bankrupt, getting divorced, etc.), in addition to more obvious issues (such a personal health, victimization experiences, etc.).
7. Claim Territory to Command Respect
- Really experienced trial lawyers know how to take over the courtroom and establish themselves, not only as the authority, but as someone who knows what’s going on, can be trusted, and someone looking out for the jurors. They seem to naturally and inadvertently become the guide, advising jurors what is happening and being the spokesperson during the voir-dire process – to the extent a judge may not participate or be present during jury selection – and immediately bond with prospective jurors and have more power. Say that person has more experience in that venue, so you let them do it, or the jury sees you deferring to them. Not good.
- Instead, learn the local rules and customs in the venue and with that judge – BEFORE—you are in front of prospective jurors.
- If an opportunity arises to explain what is going on, make sure to participate and provide the information/assurance as needed (e.g., “We’re waiting for the Marshall to bring a few more people who may be jurors, then we will explain more about why we are here.”) If you let your opponent do it, you are handing over the upper hand needlessly.
- In doing so, don’t over-do it, i.e., you’re not the judge and you’re not the boss of everything, but if you can act as the jurors’ ambassador, that is a feather in your cap.
By avoiding predictable pitfalls, you can establish an important rapport with prospective jurors and unearth dangers. Voir dire is important, but it shouldn’t be dire.
Here are some other A2L Consulting articles and resources related to voir dire, jury selection and trial consulting:
- 10 Things Every Mock Jury Ever Has Said
- A2L's Jury Consulting Services Homepage
- A2L Voted Best Jury Consultants by Readers of LegalTimes
- 5 Questions to Ask in Voir Dire . . . Always
- Jury Selection and Voir Dire: Don't Ask, Don't Know
- 10 Ways to Spot Your Jury Foreman
- 5 Things Every Jury Needs From You
- 10 Signs of a Good Jury Questionnaire
- 13 Revolutionary Changes in Jury Consulting & Trial Consulting
- Is Hiring a Jury Consultant Really Worth It?
- 12 Insider Tips for Choosing a Jury Consultant