Voir Dire is Important, but Hard to do Well

As a law student, my trial practice professor spent all of one class on jury selection. If I remember correctly, that class primarily consisted of learning all the different ways that “voir dire” could be pronounced. Beyond that the discussion was basically a demonstration of, what I know now, was exactly what you never want to do in voir dire. Voir dire was barely covered, unlike opening statements or other aspects of the trial.

So, what is a good voir dire not about? It isn’t about picking a jury of unbiased people who can be fair and listen to both sides. That may be what you get, but that isn’t what you, the advocate, want. It also isn’t about indoctrinating the jurors to view your case favorably. That was what the tried to teach you in law school, but it is dead wrong.

What should you be trying to do in Voir Dire?

Uncover those jurors who are biased in favor of your opponent’s case or against your case.

The most important thing you can do in voir dire is uncover those jurors who are biased in favor of your opponent. You are not trying to change their minds. It isn’t going to happen. So your job is to uncover those biases so that you can act on them. How do you do that? Carefully craft questions to get jurors talking. You should be talking as little as possible. You don’t learn anything about the jurors by flapping your gums. Ask open-ended questions and get out of the way. Ask questions that suggest two opposite ends of a spectrum of possible answers. For example, if you want to find out whether a juror has any bias against award damages for wrongful death claims, you might ask it this way:

The plaintiffs in this case are the children of Mrs. Smith. We believe Mrs. Smith died because of Dr. Jones’ negligence. Now, some folks have a problem bringing in a verdict that would go to children. They think that the verdict can’t bring back their dead mother and the children themselves weren’t physically hurt. Other jurors feel that if Dr. Jones was negligent and they don’t bring in a verdict for the plaintiffs, then the doctor won’t be held responsible. Juror #2, which one of those are you closer to? Why? Tell me about that.

Use the discussions of other jurors to get the quiet jurors talking. If they simply aren’t responding, ask them what they think about what Juror #4 said and why. Get them talking.

Use this technique on all important aspects of your case. Ask questions related to whether jurors can actually apply the burden of proof. It is amazing how often jurors in civil cases will clearly tell you that they can’t follow the law, that they simply need to be more certain than “more likely than not,” the standard for civil cases in most jurisdictions. Ask about specific aspects of damages, ask about experiences with similar incidents. And don’t forget to ask about whether they themselves have been involved in litigation.

Get jurors stricken for cause.

Once you’ve uncovered the biased jurors, your job is to get them stricken for cause. Why? Because you don’t want to waste your precious preemptive strikes on biased jurors. You may ultimately have to do that, but you don’t want to.

No, what you want to do is get them committed to their bias, so that the judge will have to grant your motion to strike for cause. Of course, your opponent will try to rehabilitate jurors he views as favorable to him. Don’t let your opponent try to “rehabilitate” a juror after he or she has made a clearly biased statement. Know the law in your jurisdiction. Have a basic brief ready citing those cases that stand for the proposition that simply stating “I can listen to the evidence and be fair” isn’t sufficient to overcome a clear statement of bias. Instead, when they make a statement that indicates bias, clearly restate the bias statement and get them to commit to it. Make sure they understand that you aren’t judging, that you simply want to know their honest beliefs and feelings.

On the other hand, you should use your time to try to inoculate favorable jurors from attack by your opponent. For those jurors who are expressing views favorable to your issues, ask questions to establish that their views are directly in line with the law. For example, with regard to damages issues, make it clear that they are not projecting a commitment to award certain damages, but rather that they are committed to listening to the evidence and will return a verdict for all damages that have been proven. Since that is directly in line with how the court will instruct the jury, that juror is inoculated against a challenge for cause on that issue.

Done correctly, you will get many potential jurors stricken for cause. Once, after it was becoming apparent that juror after juror was clearly stating their bias, a judge called a side bar. In that exaggerated whisper reserved for such conferences, he exasperatedly told me that if I kept it up I was going to get them all stricken for cause. My response was that if they continued to express bias that showed they wouldn’t be able to follow the court’s instructions, that it was exactly what I intended to do. The judge realized that I was right and left me to it. The result? 24 jurors out of a panel of 52 were stricken for cause. Most of those the judge struck on his own motion at the end of voir dire.

Use what you’ve learned to exercise your preemptive strikes.

Once you’ve gone through your motions to strike for cause, there will probably be jurors that the judge wouldn’t strike for cause. That is certainly where you are going to start to exercise your preemptive strikes. If you are lucky enough to have strikes left over, the question is how do you exercise those strikes?

That isn’t a simple question. If you have stricken all those jurors that you think were biased, that means you are probably going to be in the situation where the remaining jurors are either (hopefully) biased in favor of your client, or, more likely, you are down to the jurors who, despite all your efforts, barely opened their mouths during the entire voir dire process. At that point exercising those final strikes is going to be based on your gut. Do you think this juror is going to be a leader or a follower? Are their life experience such that they would tend to empathize with your client?

Listen to your gut.

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  1. Avatar Cameron says:

    Excellent points and in line with what a good trial lawyer will tell you about voir dire. David Ball’s stuff is good to read and if you can hear him speak, it is well worth the time. The only thing I will add is you need to learn how to handle a judge that wants you to speed up voir dire, or pushes you to stop asking pointless questions, or worse yet, insists on asking stupid questions. There is a balance between pissing off the judge and sticking up for your client. A memo or brief about your ability to conduct voir dire in the fashion you want is probably a good thing to have on hand as well.

    • I couldn’t agree more. You have to lay the groundwork with the judge early and often to get the time and flexibility you need. I’ve found myself facing the impatient judge and had to jump to the most important part of my voir dire outline. Often when the judge sees you are then uncovering biased jurors, you’ll get more slack o kep going.

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