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5 Voir Dire Questions to Avoid

Laurie Kuslansky
By: Laurie Kuslansky

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

 

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

1. Can you be fair and impartial?

2. Can you put your feelings aside?

3. Can you ignore your own opinion and follow the law if they conflict?

4. Despite your personal experience, can you only rely on the evidence to decide?

5. Do you have any concerns about understanding the information presented?

Most, if not all, of these questions show up in voir dire throughout the land, but yield largely meaningless information, yet they persist. The likely, politically-correct responses to these inquiries obscure the truth because people see themselves as being fair – by their own definition – which is not impartial, and as rational, which warrants no comment. They are either motivated to shield their agenda (think stealth juror) or are unaware of it.

If someone is anti-corporate or anti-establishment and you are the Goliath in the lawsuit, hitting you hard is fair . . . to that juror. One can only use their own mindset, feelings and experiences as a backdrop for deciding – lest they have an out-of-mind experience. They cannot rely on anything else, normally. If they do, in fact, possess case-related expertise, one side is likely to strike them, either for cause or using a peremptory strike.

How you ask a question determines the quality of the response. Instead of these boilerplate versions which are a waste of time, and are mere closed-ended versions (yes/no questions), consider questions that are likely more meaningful and tend to elicit more meaningful information, both in their form and content:

1. Can you think of any reason you might not treat both sides of this case 100% equally? If so, please explain.

2. Everyone has feelings and it is natural for them to influence our decisions. How might your feelings in this case come to mind when listening to the evidence and deciding?

3. How hard would it be for you to ignore your own opinion in this case? Any reason you might have reservations about ignoring it and only following the law if you disagree with the law?

4. It is impossible to forget our own personal experiences when we approach new situations. In this case, based on what you’ve heard so far, please explain any of your own experiences that may relate to it in any way.

5. Do you have any training or experience that relates to the subjects that are involved in this case? If not, is there any reason you might not be 100% confident that you will understand it completely? Explain.

Instead of participating in a charade in which people pretend to provide assurance about their fairness and counsel takes shallow assurance in it, use the precious, limited access to prospective jurors’ true attitudes by carefully scripting questions that will allow you to make real use of their answers. It is a rare person who admits to deciding emotionally, ignoring evidence and the law, and believes he or she is not a fair and impartial judge. The exercise, therefore, is one of weeding through responses to glean those who really mean it and the majority, who don’t.

Here are some other A2L Consulting articles and resources related to voir dire, jury selection and trial consulting:

Integrating Expert Evidence and Argument in Complex Cases Webinar 

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