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What are those People in the Jury Box Thinking? Using Effective Voir Dire Tactics to Find Out

Persuasion in jury selection has three general goals. You should try to conduct voir dire in such a way that at the end:

1.         The jury likes and trusts you;

2.         The jury accepts your view of the problem issues in the case; and

3.         Individual jurors have honestly expressed their views so that you can make an informed decision about which persons to strike.

 

HELPFUL WAYS TO ACCOMPLISH YOUR THREE GOALS

 

1.                  Explain the Reason for the Questions.

The panel may find both you and the voir dire process to be very inquisitive.  It is helpful to provide an explanation as to the reason for the numerous questions.  You might explain that the questions are not asked in an effort to pry into their personal affairs, but are necessary because the law makes it the duty of the lawyer to find out if any juror has any experience or association that might cause him or her to lean one way or the other. 

I sometimes open the statute book and read to the jurors from it.  The law requires that “if a juror is not indifferent in the case, the juror shall be excused.” Wis. Stat. § 805.08(1).  This may provide some legal foundation to the need for the questions. 

 

2.         Listen to the Answers.

When you do more than 10 percent of the talking in voir dire, you are talking too much.   Listening in voir dire—even 90 percent of the time—is not enough.  You have to also listen with real interest.  Your follow-up questions and the tone in which you ask them must show real interest in how the juror might answer

The listening part is important because human beings feel rapport with anyone who listens to them.  It works with your friends and clients and co-workers, and it works with jurors.  When you listen with interest, they are yours from the start.  They talk to you more.  And the rapport you create by listening makes jurors more likely to want to see the evidence in a positive way for your side.

 

3.        Develop a Theme … and Your Theory of Liability.

The theme of the case is the basic story—the thread that is to be continually woven to tie the facts, the witnesses, and your proposed conclusions together.  This theme should usually be introduced during voir dire and elaborated on throughout the trial.  Since the plaintiff bears the burden of proof, he or she must adequately prepare the jury to accept his or her theory of liability.

This process often involves familiarizing the jury with basic medical or technological terms and principles involved in the case.  In an elevator injury case that centered around a certain piece of equipment, a description of that piece of equipment should be introduced in voir dire.

 

4.                 Ask Open-Ended Questions.

The best way to ascertain bias is to let ju­rors say in their own words what their ex­periences have been with, or how they feel about, a topic.  Voir dire should be viewed as direct examination, where attor­neys usually want the witness to talk, rather than cross-examination, where they try to limit a witness’s testimony.

Openended questions give jurors an oppor­tunity to reveal bias, and they also increase juror satisfaction with the process.  Open-ended questions start with: Why, What, How, Tell me why, Tell me what, and Tell me how. 

When jurors are free to choose their own words in answering open-ended ques­tions, their responses are likely to be much more telling.  How can lawyers ask open-ended questions without the usual “How do you feel about. . . ?”  Here are some ways that may prove helpful:

·                     What do you think about the idea that…?

·                     I see you smile.  Why’s that?

·                     What types of experiences have you had with….?

·                     What else should we know about your views?

·                     How does that affect your view of the case?

·                     What has had the greatest influence on your opinion?

·                     Please give me an example of that.

·                     What was your reaction to..?

Also, using inclusive terms when asking questions gives jurors a chance to open up.  Prefacing a general question to a panel with the phrase “How many of you…” rather than with phrase “Do you...” tends to garner more responses.  This way, you are giving the “OK” to respond.

 

            5.         Don’t Be Afraid to Ask Follow-Up Questions.

You learn little of any value in jury selection until the second or third follow-up question.  Often, attorneys ask, “How many of you have ever been in a wreck?”  Some hands go up.  The attorney duly notes the names—and then moves on to a different topic!  Yet having been in wreck does not make anyone a good juror or a bad one.  It’s always a toss-up.  The only reason to ask a question on any new topic (“Who’s ever been in a wreck?”) is to follow up the answer.  Here is the all-purpose follow-up question of choice:

“Please tell me about it.”

After they tell you about it, say,

“Thank you.  And please tell me a little about that.”  

This yields control to the juror.  He can pick any subtopic about the wreck he wants.  His choice of subtopic tells you something about his attitude towards the wreck. He might say “This guy just slammed into me” (i.e., the wreck was someone else’s fault). He might say,” worst thing I was ever involved in my life” (i.e., the seriousness of the wreck is his most salient connection to it).  It might be how badly he was injured (so he’ll compare that to injuries in this case).  It might be what his injuries later kept him from doing.  By your saying, “Tell me about it,” you let him select his most salient subtopic.  

If you give the juror a chance to mention it unprompted, you’ll know that it’s something truly on his mind, rather than something he’s talking about solely because you prompted it.

 

6.        Establish Credibility and Introduce the Case.

This is an essential step toward establishing yourself as a capable, confident attorney who believes in the client and his or her case.  Most trial lawyers will agree that during trial, they can be the subjects of as much scrutiny as the facts and the clients are subject to.  Although it is important to emphasize the strong points of your case early, it is generally also a good idea to discuss the weak points with the venire.  These matters will be revealed to the jury by your adversary anyway, and it is often an opportunity to display your candor and honesty.

Your tone, your body language, and your choice of words should tell the juror that any answer he gives will be as acceptable to you as any other answer.  Do not ever disagree or argue.  Do not make jurors feel that they taking a test or in a contest in which they are expected to give right answers.  Tell them over and over that there are no rules, no expectations, no right and no wrong responses.  “The only right answer is what is right to you.”

And don’t be friendlier to jurors who answer in ways you like.  Do not approve of their answers.  Do not follow them up by leading them to say good things, in the hope that they will make others see the light.  That’s a clever tactic that rarely has any effect and more often arouses juror suspicion.

With every response, “honor the answer.”  It is a mistake to ignore the answer – whether you like the answer or hate the answer or are indifferent to the answer … acknowledge it politely. 

 

IMPORTANT POINT TO KEEP IN MIND

 

1.                  You Cannot Changes Jurors’ Strongly Held Beliefs, Nor Can You “Poison the Jury.”

Jurors bring a lifetime of beliefs and opinions with them into the court­room.  One of the main mistakes some attorneys make is thinking that they can change jurors’ beliefs with their powerful persuasive skills.  Regrettably, this is not the case.  In fact, the more strongly someone holds an opinion or belief, the less likely they are to change their mind.

The issue of the right to life vs. the right to choose is a good example.  Most adults have fairly strong opin­ions on this issue.  What if someone tried to persuade you to change your beliefs on that topic?  Would they be successful?  What if that person was a stranger to you – as you will be to your jurors?  The odds of your being able to convince them would be even less.

 

2.  Jurors Want to Know What Is “Normal.”

Jurors want to know what is normal.  They want to know the rules, the actions of companies, doctors, etc., and the government’s (or the licensing board, other relevant body) requirements.  By “the rules,” we mean such things as the rele­vant policies and procedures, industry standards, government rules and regu­lations (OSHA, FDA, etc.), or even re­minders posted in the break room.

Anything written in black and white by an authoritative source will be most helpful.  It gives jurors guidelines and something concrete that they can use to measure the defendant’s conduct and behavior.  

Another issue that has become clear from observing mock trials and focus groups is that if you do not give jurors answers to their questions, they will make up their own. If an incident is relevant and you don’t explain its rele­vance, they will devise their own explanations on what it means.

Therefore, it is very important to de­termine in voir dire:

          Who has had similar experiences to the plaintiff or the defendant (or been a plaintiff or defendant)?

          Who has worked in a similar situa­tion, especially in a position of authority (e.g. safety manager, nurse,)?

          Who has prior jury experience, especially as presiding juror?

These people can quickly become the “experts” on any jury, and their opinions can carry great weight with their fellow jurors.

 

            3.        Only a Few of the Jurors Matter During the Deliberation.

Only a small number of jurors actual­ly drive the decision-making process.

This is why it’s crucial to be sure that any strong/dominant personalities are good jurors for you.  In mock trials and focus groups, you will see many passive jurors interact with a few strong jurors of a different opinion.  The passive ones will give in to the minority in a frighten­ingly short period of time.  Jury selection is not just about the number of plaintiff-friendly jurors on your panel.

Some of the things that will influence the jurors as a group are prior jury serv­ice and any expertise in the areas of the particular lawsuit.  Other factors to con­sider are characteristics such as age, occupation, and education, and whether or not an individual is likely to be a leader or a follower.

Sometimes jurors in their 20s and even early 30s may defer to those who are somewhat older.  They may believe that the older jurors are more experi­enced and knowledgeable of better solu­tions.  Education is also important.  The greater a juror’s education, the greater the influence they are likely to have on the group.  The influence of highly edu­cated jurors is not just because of the education, but also because of the power and value given to it by other jurors.

 

JUROR CRITICISMS OF VOIR DIRE

 

            Jurors have definite opinions about voir dire and the ways attorneys conduct it. The following criticisms are based on post-verdict interviews of almost 400 jurors.  The question that elicited these criticisms was, “What did you like least about the way the attorneys conducted voir dire?”  The five most frequent criticisms (in order of frequency) were these:

1.         The attorneys were ill-prepared and wasted the jurors’ time.

2.         The attorneys talked most of the time and did not seem to care what the jurors had to say. (As a result, some jurors indicated, “We did not feel free to give information.”)

3.         Jurors felt they were not asked the right questions, and hence they believed that bias, which should have been elicited, was ignored.

4.         The attorneys embarrassed some jurors.  (For example, one attorney asked, “I see you didn’t fill in the blank on education.  What is your highest level of education?”  Mr. X only had an eighth grade education, and the attorney really embarrassed him.”).

5.         Jurors felt their privacy had been invaded (especially in cases involving sensitive issues such as sexual abuse, drinking, homosexuality).

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