By Hon. Robert Trentacosta
Voir Dire (Jury Selection) is your opportunity to handpick an audience for your trial story. To be successful, you must plan, practice and perform. Have a clear profile of the jurors you want to hear your case, and importantly, know who you do not want to sit in judgment of you and your client. During your questioning of the jurors, create an atmosphere of trust and confidence. Use your people skills to relate to the jurors on a personal level. Do no harm. Do not insult the jurors with inane questions or be so intrusive in your questioning as to embarrass them. If you are successful, when your questioning is over, the jurors will feel as though they have had an honest and interesting conversation. To assist you, I offer the following six considerations in planning and conducting Voir Dire:
1. Plan. Create a Profile of Your Ideal or Acceptable Juror.
In order to hit the bullseye, you need to see the target. Before you begin your actual Voir Dire, create a profile of your most desirable jurors. On the left side of your chart, list the attitudes, values, beliefs, life experiences and jurors’ feelings that would be best for your case. Those will be your ideal (or at least “acceptable”) jurors. Once you have done this, on the right side of the chart list the antithesis of those attitudes, values, beliefs, experiences and feelings. The right side of the chart will tell you who is the least desirable juror for your case.
For example, in a criminal case where the conduct of the arresting officer(s) is a key issue, the prosecution will want jurors who have a trusting attitude about law enforcement, who value the role of the police, and have had positive experiences with law enforcement, perhaps as victims of crime, witnesses, bystanders to an event, security personnel, or neighborhood watch participants. Conversely, someone who has negative feelings about law enforcement, who is doubtful of the value of police, or who has had unpleasant experiences with law enforcement will be the least desired jurors in this particular case. Knowing who you want is a necessary first step in successfully selecting a jury.
2. Consider the Jurors’ Perspective.
Be empathetic. Consider the Voir Dire process from the jurors’ perspective. Public speaking is frightening for many people. Speaking in public to a group of strangers about personal matters is a nightmare scenario for these individuals. Even for those less anxious about the process, the solemnity of the courtroom atmosphere and their dawning realization about the importance of their role in the trial, add to the jurors’ apprehension. Do not contribute to their unease by being clueless about their perspective. If you are empathetic, friendly, conversational, respectful, and ask non-judgmental questions, you will create a rapport that fosters the jurors’ gratitude and candor. The creation of a conversational atmosphere inures to your benefit in trying the case.
3. First Impressions Matter.
Lawyers sometimes forget that Voir Dire is a two-way street. While the lawyers are picking jurors, the jurors are deciding the credibility and likeability of the lawyers. Since Voir Dire is your first opportunity to meaningfully interact with the jurors, the impression you make in Voir Dire can either give your side momentum or result in the necessity for damage control. Remember, no self-inflicted wounds. Cringe worthy questions like: “So, I see that you didn’t graduate high school. May I ask why?” are all too common.
If your Voir Dire process uses jurors’ names, instead of juror numbers, make sure you correctly pronounce the individual juror’s name. If a question has already been asked by the court or opposing counsel, don’t repeat the same question as the jurors will feel you were not paying attention to them when they answered the first time. It is important that you demonstrate competence and confidence. This will be reassuring to the jurors and create a favorable first impression.
4. Listen More, Talk Less.
Voir Dire is your opportunity to learn more about the individual juror’s attitudes, values, beliefs, life experiences and feelings. Discerning these things will allow you to make an intelligent decision about whether an individual juror matches your profile of an ideal or acceptable juror. The best way to accomplish this is to let the jurors open up and talk. Your job is to keep the conversation going and listen to the responses.
Ask simple, open-ended questions, instead of leading questions that will yield only a “yes” or “no” answer. Questions that begin with “Who, What, When, Where, How, Tell us about…, Please describe for us…” will let the jurors reveal their experiences and attitudes about events in their life. Attorneys who ask long, convoluted questions, that are clear attempts to manipulate the jurors, create a negative impression with the panel and fail in the most elemental way to discover meaningful information to make cause or peremptory challenges.
5. Create a Comfortable Environment That is Conducive to Disclosure.
Voir Dire is not The Inquisition. There is a key difference between a conversation and an interrogation (e.g., a judgmental tone, leading questions where jurors feel they are being manipulated or schooled, or beginning a question with “I thought you said…” or “Didn’t you tell us…”). If the jurors feel they are being interrogated, they will be self-conscious, defensive and less forthcoming.
Questioning the jurors is a conversation in which you are in rapt attention to their answers. Do not be overbearing. While you should step out from behind the podium (and your juror chart) to engage the jurors, do not invade their personal space. Leave at least two feet between you and the jury box. Make eye contact with the jurors. Nod your head approvingly when the jurors recount a painful personal experience. Thank the jurors for their candor. Do not be judgmental or harsh, even when a juror gives you a response that you don’t like. Remember, your job is to encourage jurors to speak their mind so you can make assessments of their suitability to serve in your trial.
6. Delve into the Jurors’ Attitudes, Values, Beliefs, Life Experiences and Feelings.
Lawyers place too much importance on the mundane aspects of a prospective juror’s personal life and not enough time on the issues that matter. It is appropriate and necessary to learn about the individual juror’s attitudes, values, beliefs, life experience and feelings in order for you to make intelligent choices about using your challenges.
Layer your questions in order to dig deeper into the juror’s background. A “what happened” question will give you some insight into an event in the prospective juror’s life experience. But that is not enough. Valuable information remains undiscovered until you ask a “how did you feel about that?” question. For example, in a civil case involving a traumatic brain injury to a plaintiff in a car collision case, defense counsel’s conversation with a prospective juror will include open-ended, non-judgmental questions that include a request to share the juror’s feelings:
Q: Have you, a close friend or family member ever suffered a brain injury? [Juror #8, Ms. Smith raises her hand].
Q: Ms. Smith, I see that you raised your hand. Please tell us about it.
A: My nephew was in a car accident two years ago and had a brain injury.
Q: What happened?
A: The other car ran a stop sign and entered an intersection and struck the car my sister was driving. The other driver was texting. My nephew was in the front passenger seat and hit his head. His side of the car took the brunt of the force.
Q: How badly was he injured?
A: He was hospitalized. He had brain swelling. He needed a surgery to relieve the pressure.
Q: What residual effects did he have from the injury?
A: He has speech and memory problems. He missed a year in school and had to be left back so he could catch up.
Q: Ms. Smith, how do you feel when you think about your nephew and his injury?
A: It makes me truly sad. It seems a moment of inattention caused so much pain. He didn’t deserve what happened.
Counsel must make a decision at this point whether to probe further for a potential cause challenge. If counsel decides to probe further, the inquiry may include:
Q: Ms. Smith, I appreciate your candor in relating your nephew’s experience to me. Given your personal experience, how do you feel about serving as a juror in this case?
Depending on Ms. Smith’s answer to this question, you may have enough for a challenge for cause (e.g. “It would be impossible for me to serve and be fair. I will be thinking of my nephew the whole time.”) or, at a minimum, enough information to make an intelligent peremptory challenge.
Remember, try to identify life experiences in the prospective jurors’ lives that relate to the issues at trial. Once identified, probe deeper to gauge the depths of their feelings. Ask questions like: “How did you deal with that? How did you react? Looking back, how do you feel about what happened?” These types of questions will give you valuable information about the jurors’ attitudes, values and beliefs.
Voir Dire is a crucial phase of the trial where you get to handpick your audience. You must intelligently create the profile of your ideal and acceptable juror; and, at all costs, identify those jurors who will be unresponsive or even hostile to your case. In questioning the prospective jurors, create a comfortable atmosphere and ask simple, open-ended questions. Focus primarily on identifying the jurors’ attitudes, values, beliefs, life experiences and feelings. Attentively listen to their answers. Be non-judgmental, even if you don’t like the answer. Always be grateful for a juror’s candor. You will be most effective if you are empathetic to the jurors and respectful to them.