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One Voir Dire Must Do and One Voir Dire Must Never Do

Laurie Kuslansky
By: Laurie Kuslansky

Jury Consulting, Juries, Jury Consultants, Environmental Litigation, Voir Dire, Jury Selection, Labor and Employment

 

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

You’re defending an alleged polluter. You ask prospective jurors, “Who here thinks there is too much government regulation of business?”

You represent an individual hurt in a workplace accident. You ask, “Has anyone ever filed a worker’s compensation claim?”

Your client is an employer accused of gender discrimination. You ask, “Please raise your hand if you believe that workers sometimes claim wrongful treatment when they simply don’t get what they want.”

Why would you do that, if the only answers you can get to these questions are ones that reveal potential allies? That is your adversary’s job, not yours. Your job is to help your supporters fly under the radar so that they can remain on the jury. If your question is likely to reveal nothing useful to you -- or worse, will point out who your friends are -- don’t use that question.

In other words: What is the single most important “Never Do” in voir dire? Clearly, it is to never ask questions that reveal who your fans are.

Instead, here is a voir dire Must Do: Invite your enemies to show themselves and make it as easy as possible for them to do so. 

For example, defending the toxic tort, ask “Some people feel that there isn’t enough government regulation because companies cannot be trusted to mind the environment on their own. Can anyone here relate to that at all? Explain.”

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Or as the personal injury plaintiff’s counsel, you’d be better off asking: “Some people favor capping damages, meaning putting a limit on the amount of money to pay in lawsuits, even if the plaintiff – meaning the injured party, such as my client – proves their case. Can you raise your hand if that makes some sense to you or you feel that way even a little bit?

For the employment defense, you might ask: “Many people are unhappy with their jobs or have had bad experiences in the workplace. Some feel they’ve been treated badly or unfairly at their job in some way. Can you think of any examples of how that may apply to you or someone close to you?”

As the song says, “Don’t believe me – just watch!” When someone says they can be fair, it is meaningless. “Fair” means using their yardstick. Instead, watch and listen to what they actually believe by asking meaningful and cautiously phrased questions. Assume that what they believe cannot be put aside, certainly not based on the transient request of a stranger to whom they have no allegiance and from whom they reap no benefit. Their beliefs can only stay where they live ... on their minds and in their decisions in deliberations. Better to reveal what they are before it’s too late.

Other articles and resources related to voir dire, jury selection and jury consulting from A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

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