Alvarez

Tactical Considerations When Conducting Voir Dire

Patricia O. Alvarez*

Introduction

Jury selection is the most important phase of the trial. It is the first opportunity the attorney has to perform and to present his/her side of the case. It is the only opportunity for the attorney to talk with the jurors on a one-to-one basis. The attorney must, therefore, make a strong but favorable impression on as many of the panel members as possible. At the same time, the attorney must be sensitive to the personalities, beliefs, characteristics, biases, prejudices and dynamics of the potential jurors. An attorney who is not sensitive to each panel member (or at least to the first twenty-four members), and who is only interested in creating a favorable overall impression, is not serving his/her client's interests. Why? Because the attorney may end up with a biased juror or one who has prejudices against his/her client, the nature of the case, or litigation in general. This paper sets forth some practical and legal tips for making the voir dire process work to the attorney's (and his/her client's) advantage.

II.

Tactical Considerations

A. Prepare Voir Dire Before The Trial Day

Although voir dire is one of the most important stages of a trial, most attorneys do not take the time to prepare their voir dire examination. Careful attention should be given to the preparation of voir dire so you do not end up with a jury of twelve (or six) people of whom you know little or nothing.

1. Outline the Issues and Topics You Will Address.

The preparation of voir dire starts by focusing on the issues, both factual and legal, that are relevant in your case, and on your defensive theme. Hopefully, by the time your client decides to take the case to trial, you have already fully analyzed and sized up these issues. If not, then you have no business trying the case at this time.

The first step is to determine which issues should be presented to the panel during voir dire. Always include the weaknesses in your case when preparing your list. By addressing your weaknesses and asking the panelists how they feel about them, the jury will not only perceive you as honest and candid but, if you ask good questions, you will find out what the panelists think about your weaknesses. In many cases, knowing how the panelists perceive your weakness(es) may help you restructure your strategy during the presentation of the rest of your case.

2. Order Your Issues and/or Topics.[1]

The order of the voir dire issues and/or topics is important--begin strong and end strong. In trial advocacy classes, we were taught to pose questions on favorable testimony at the beginning and at the end of, for example, a direct examination of our client. In voir dire, it is specially important to diffuse adverse issues and concerns by placing them in the middle[2] Why? People tend to remember only what they hear at the beginning and at the end. The defense attorney who must disclose a weakness in his/her case (which is usually the case) can use the same approach during voir dire.

When preparing your voir dire, "[c]arefully consider the order in which topics during voir dire are to be presented."[3] Robert B. Hirschhorn and Stacey M. Schreiber recommend an order as follows:

a. Introduction 2 minutes

b. Overview 3 minutes

c. Strong topic 5 minutes

d. Areas of Concern 10 minutes

e. Strongest topic 8 minutes

f. Conclusion 2 minutes.[4]

3. Organize Your Notes and Prepare Questions

The voir dire process requires a high level of concentration and organization. The panelists' eyes are upon you at every step of the voir dire process. Whether you are aware of it or not, the jury is looking at you, sizing you up, and forming opinions about you based upon how you conduct yourself. If you are unprepared, the jury may dismiss your client's claims as being less worthy than those of your well-organized, well-prepared opponent.

Prepare your questions before trial (but not the night before the trial). Write out your general questions and possible follow-up questions. Phrase your questions carefully, and make them short, simple and open-ended. Then, order your questions in the same way you want to address your topics.[5] After you feel comfortable with your questions and their order, practice reading them out loud several times.

A good idea is to ask someone who is not familiar with the case to answer your questions. Then, ask that person how he/she felt when answering your question. Did he/she feel constrained? Did he/she feel comfortable? Did he/she understand the question? Did he/she understand the nature of the case through your line of questioning? Did he/she feel intimidated? Was he/she able to express him/herself? Did he/she like your demeanor when answering your questions?

When you are satisfied with your questions and their order, prepare an outline. During your voir dire you should rely on your outline rather than on the written questions -- it will make your voir dire flow more naturally, and you will not feel constrained if the jury's temperament is different than what you anticipated.

4. Determine What Rules and Policies Are Followed by the Trial Judge

As a trial attorney, familiarize yourself with the basic procedures followed in the courtroom regarding all aspects of the jury selection process. In particular, make a point to know before the trial date:

· Are multiple juries picked in one session or will one jury be selected that day?

· When are the jury lists first available?

· Where the panelists are seated, the order in which they are seated, and whether numbers are assigned to them.

· When are challenges for cause made? Are they taken up immediately or at the end of voir dire?

· What is the order in which attorneys for the parties question prospective jurors and exercise peremptory challenges.

· Whether questioning is both general and specific, or whether all the attorneys first engage in general questions and thereafter follow with specific questions.

· What are the court's peculiarities regarding length of voir dire, proper subject matter for voir dire, etc.?

· Are there any local rules that affect the jury selection process?

· What information does the juror card contain?

In addition to obtaining the foregoing information, it may be wise -- if time permits -- to watch a jury selection before your presiding judge.

5. Know Your Opponent

If you have not tried a case with opposing counsel, find out from other attorneys what he/she is like at trial. How does he/she handle voir dire? What jokes does he/she use? Does he/she present his/her opening statement during voir dire? Prepare responses that are "tailored to the anticipated voir dire of your opponent."[6]

B. Attorney's Demeanor

As stated, the panelists will be focusing on the attorneys throughout the voir dire process. More than likely, their impression of the attorneys is based on stereotypes: attorneys are sneaky, intrusive, aggressive, manipulative, powerful and mysterious. As the panelists examine the attorneys during voir dire, they either confirm these stereotypes or, hopefully, they begin to form their own opinions about the personality of each attorney. For this reason, your conduct during this initial process of the trial is VITAL.

If you conduct yourself in a friendly and laid back manner, that clues the panelists in on how pleasant and human you are. If you are rude and snap at your paralegal, they may become adverse to you (and to your case). Show warmth toward and respect for your client at all times. Be reasonable, sincere, informal but dignified, friendly, and interested; most importantly, be yourself. Be courteous at all times toward the court, the jury and opposing counsel.

Do not be condescending in manner or language. Use good but simple English. Avoid slang. Ask straightforward questions and, if it is necessary, explain unusual words or phrases. Use "please" and "thank you." Be direct, yet diplomatic. If you are unsure how a panelist pronounces his/her name, ask. If you can, memorize jurors' names. It not only enhances your rapport with the jury, but it also builds the jury's confidence in your memory. Smile occasionally. Get a smile from the jurors.

C. Client's Demeanor

A client should be neat and clean, not flashy or overdressed. Rolexes should be left at home. Instruct your client to keep his/her hands in his/her lap or at his/her sides. Advise the client that "crossed arms" may give the jurors the message that he/she is hiding something or is apprehensive. Your client should also be instructed to be attentive but relaxed, be interested in the juror's answers, and be pleasant and confident in appearance.[7] A client should not nod or shake his/her head in approval or disapproval of a juror. Instead, ask your client to help you by noting impressions of jurors in your jury chart or next to their name in his/her own copy of the jury list.

D. Introductory Remarks

1. Introduce Yourself and Your Clients

Some experts believe that a court's introduction of the attorneys is sufficient, and that the attorneys should dispense with introductions.[8] However, by the time the defendant's attorney starts conducting voir dire, most panelists have forgotten the attorney's and the defendant's names. Therefore, the defense attorney should consider a personal introduction as well as one of his/her clients.

When introducing the client, present your client with human regard and respect. Stand next to your client and touch his/her shoulder or back to show that you have a warm relationship. If the client is a big corporation, explain to the jury who the corporate representative is. Project to the jury that you and your client are a team. In this regard, encourage your client to participate in the voir dire process by taking notes, paying attention to the juries' responses, and sitting next to you when you are not asking questions.

2. Introduce Your Case

Introductory remarks include, to the extent not covered by opposing counsel or by the court, the names of your witnesses, the general nature of the case, a brief description of the facts, and the estimated length of the case. Make this introduction conversational and simple. Introduce the theme of your case. When you tell the jury about the nature of the case be brief. Throughout your voir dire examination, however, continue to explain the case. Do so by introducing "different aspects of your case as you introduce different categories of questioning, to explain why you are asking, but your orientation to the jury up front should draw the basic parameters and issues."[9]

3. Tell the Jury About the Voir Dire Process

Most panelists do not have any idea of what the voir dire process entails. If they understand voir dire, they will be more willing to participate in the voir dire process. Therefore:

· Tell them that you are going to ask questions to some of them.

· Prepare them for intrusive personal questions and the importance of obtaining that information from them.

· Show them the jury list the court provided the attorneys and explain that you already know a lot about them through the information they provided on their jury cards.

· Show them your jury chart and explain the general nature of the information you are noting next to their names (e.g., vital statistics). This takes the mystery out of your note taking.

· Explain how you will dismiss some of them and why. Explain that the jury system in the United States is unique in that it allows the parties to pick the most balanced jury.

4. Tell the Jury About Your Goal in Voir Dire

Tell the jury about the purpose of jury selection. Do not insult the panel by stating "we are looking for people who can be fair and unbiased." Try a different and more positive approach such as, "we are looking to put together a jury that could listen to this case with the least interference from their personal concerns." [10] Professor James Seckinger of the Notre Dame Law School and former director of NITA, suggests the following approach:

What we are doing here is selecting a jury to hear and decide this case. In the interests of justice, we'd like to have the best possible jury to listen and decide. We're looking for people who do not have special knowledge about or a relationship to this case or a similar case. For example, I would not be a good juror, since I have a lot of information about one side of this case.[11]

Tell the jury that the case may be difficult for some of them to hear or handle, or that it may involve things that have affected their lives and would interfere with their desire to be impartial.[12] Tell them that you know they want to be fair, but that everyone understands that sometimes it is not possible to be so. You may also consider the following approach recommended by Robert B. Hirschhorn and Stacey M. Schreiber:

Good morning ladies and gentlemen. I am proud to stand here with [Client's name] and have twelve of you decide this very important case. In this part of the trial, we need to find out your feelings, impressions or opinions about the issues in this case. I want you to know that there are no right or wrong answers. We will be honest with you and we ask you be as honest as you can with us.[13]

Whatever your approach, be human by candidly admitting an example of your own prejudices and limitations. The jurors will not only see you as more human, but will also tend to identify with you when admitting their own prejudices or limitations.

E. Questioning Tactics

When questioning jurors, "the goal is to get the potential jurors to answer openly with as little evasiveness, suspicious or hostility as possible."[14] The following are tactics on how to reach this goal.

1. Concentrate on the First Twenty-four Jurors

When each side has only six peremptory challenges available, limit questions to the first twenty-four jurors. However, if it becomes evident that any of those jurors will be struck for cause, increase the number by one (or twenty-five). If juror twenty-six, however, identifies himself as an expert in some important area of your case, you may want to question him on areas that will require that expertise. This line of questioning may be helpful in educating the rest of the panel.

2. Use Open-Ended Questions

Questions that suggest an answer (leading questions) tend to be meaningless when the goal is to secure information from a juror. Getting the jury to talk is the best way to gauge their intelligence and prejudices. Open-ended questions encourage discussion. The typical open-ended questions begin with why, what, how, when, where or who. Examples of open-ended questions are:

· Mr. Juror, some people think that when a person is sued he is liable. How do you feel about this? (Contrast this approach with: "Do you believe that a defendant must be liable just because a lawsuit has been filed against him?")

· What opinion do you have about a lawsuit such as this? (Contrast this approach with: "Do you have any objections about a lawsuit such as this?")

If a juror is hesitant to answer, follow up with "could you be a little more specific?" or "could you give me an example?" or "tell me about it," or "what experiences have you had to feel this way?" If you are satisfied with a juror, do not ask any more questions. Something you or the juror says may encourage a challenge for cause by opposing counsel. When you are satisfied, keep your questions brief.

3. Questions About Relationships and Issues Involved in the Case

Ask if anyone has any knowledge of the facts of the case or witnessed the events. Make it a point to always ask the jury panel if they know or have ever been associated with the parties, the attorneys or their law firms, and the witnesses. Ask if any of their immediate families knows or has ever been associated with these same individuals. If any of the panelists answers yes, then follow up with questions that inquire about the nature of the relationship, whether that relationship has ever been severed, and whether it still exists. Then ask if such relationship would affect their ability to be fair to both sides. If you are representing a corporation, ask if anyone (or any family members) has ever worked for that corporation. If the answer is yes, then ask about any experiences with that corporation.

One question that is rarely asked but can be important is whether any of the jurors know each other. If they do, follow up with questions eliciting information on the nature of their relationship and whether each can decide the case independent of that relationship. Ask whether they share the same viewpoints, and if they do, try to develop those points of view they share.

4. Questions Concerning the Law

The court, in its discretion, can limit or prohibit questions that attempt to indoctrinate the panel on propositions of law. Many judges prohibit any discussion of law beyond that of securing a commitment to follow the law as given by the court. If the court allows it, use questions concerning the law relative to "burden of proof," "preponderance of the evidence," "negligence," and "gross negligence." An example of such question is:

If the court instructs you that negligence is the doing of something a reasonably prudent person would not do, would you follow the court's instruction? Would you follow this instruction with respect to the plaintiff as well?

If the court does not allow the attorneys to use questions concerning the law, then you may try a different tactic which will allow you to at least touch the subject and obtain a commitment that the juror will follow the court's instructions. Examples of such questions include:

· Will you follow the law, as given by the judge, regardless of what you think it should be?

· If the plaintiff fails to prove his/her case according to the court's instructions, would you be willing to send him/her away with nothing, even though he/she has been seriously hurt?

· We all have sympathy for plaintiff's situation here. Despite that, will you decide the case on the facts and the law as given by the court, and not on the basis of sympathy?

5. Educational Questions

Educational questions are a device for educating the jury panel. They are commonly directed to the panel in general and are leading in nature. The answer is usually predictable. Examples of educational questions include:

· This is a civil lawsuit. In a civil case, the plaintiff has the burden of proof. The plaintiff must prove his/her case by a preponderance of the evidence or the greater weight of the evidence. Does any one have a problem with this concept?

· During the trial, I may make objections to the introduction of certain matters. We have rules to keep out unreliable evidence. It is my duty to see that evidence of this kind is not admitted. If I believe the rules are being violated and I object, will this offend you?

· You are not required to lay aside your own experiences and common sense in evaluating the evidence. You are required, however, to determine the facts solely on the basis of the testimony and any other evidence produced in this case. Will all of you do that if selected as jurors? [15]

6. Listen to the Juror's Answers

Show an interest in the juror's answers and maintain eye contact while the juror is talking. Forget your next question. Do not write while they are answering your questions. By attentively listening to their answers, you convey to the panel that you accept and understand their answers. Moreover, you encourage them to open up. If you listen effectively, you may be able to determine personality traits, such as leadership or lack thereof, shyness, confidence, or insecurity.

7. Be Prepared for the Undesirable Answer

Your goal in voir dire is to get rid of undesirable jurors. To accomplish this goal, you need to ask questions that will identify those jurors who have biases or prejudices against your case. Therefore, undesirable answers are a mixed blessing. They allow you to exercise your peremptory challenges wisely if that juror cannot be challenged for cause. "Poison is much better exposed in a large room than learning about it for the first time after the jury is selected and after the deliberative process has begun."[16]

When a juror gives an unexpected or undesirable answer, thank the juror for his/her frankness. If applicable, then tell him/her the court will define the rights and duties of the parties, including the defendant. Depending on the subject of the juror's answer, get a commitment that he/she will either abide by the law, regardless of his/her personal opinion, or that he/she will listen to all the evidence before he/she makes his/her mind up as to the case in question. Follow up with other jurors and ask who has the same feelings as the first juror. Ask for the same commitments. If the commitments are not forthcoming, challenge those jurors for cause or exercise your peremptory challenges on them.

8. Looping

The concept of looping is explained by Robert Hirschhorn and Stacy Schreibers as follows:

Looping is a technique whereby an attorney asks one potential juror a specific question and the juror responds. The lawyer then uses the juror's name, repeats the exact words of the juror, and then asks another juror for a reaction to what the first juror said. A third juror is then asked to respond to the answers given by the first two jurors, repeating their answers exactly and always using their names.

The benefit of this method has many facets. The jurors are educating each other, rather than the panel hearing the propaganda of the lawyers. By repeating the juror's exact words, any juror who disagrees is, essentially, disagreeing with another panel member and not the attorney. Using the juror's names compliments the jurors who have spend all day being treated as nameless and faceless entities, and the attorney becomes the one person who has recognized the jurors as people. The jurors will feel that they are held in positive regard and that their answers are valued. This technique makes the jurors more likely to share honest feelings and opinions, and is the single greatest tool in encouraging a roomful of strangers to speak their honest opinions or feelings.[17]

Looping is a powerful tool that should be actively pursued.

9. Non-Verbal Clues

From the moment you first see the members of the panel, focus on their interactions and on their non-verbal behavior.

a. Group Dynamics

Watch the panelists when they are waiting. How they interact with each other, who they speak to, who does the speaking, who is a loner, who is reading, and who is preoccupied are important clues that will aid you when determining who can best respond to your client and to the issues involved.

b. What Jurors Wear and Carry

Notice what jurors carry into the courtroom, their clothing, how the women hold their purses, and what type of shoes they are wearing. If a juror carries a book that may mean the person does not like to waste time. If a juror appears unkempt, this may mean that he/she has no respect for the judicial system or that he/she is hostile to existing institutions. Watching women hold their purses may tell you how they feel about money. If a woman clutches her purse closely to her body, it may indicate that she is suspicious or nervous. If the juror is wearing expensive shoes, then that juror may be from an upper social class--and conservative by nature. If he/she is wearing work shoes, then you may want to question him about his/her work and his/her beliefs regarding corporations and employers.

Research suggests that flashy dressers tend to resent authority and attempt to conceal inferiority complexes. Immaculate dressers tend to insist upon perfection in matters of proof and do not relate well to the average person. A juror who does not dress according to his/her profession does not have attitudes associated with his/her profession or business. The conservative dresser tends to favor the defense as does the juror who wears an American flag, a service club bin, chamber of commerce or bank pin, and the like.

c. Body Language

Generally, it is not wise to attribute a definite meaning to gestures and movements of the panelists. However, body language can be revealing. The following are some general guidelines set forth by Robert Wenke that you may want to consider:

· Arms folded: antagonistic, not accepting what is said.

· Fidgeting: impatient.

· Talking through the teeth: hostile.

· Woman with legs twisted in a knot: nervous.

· Interlocked fingers with palms pushed out: unease.

· Finger in the collar: discomfort.

· Clenched fist: resistant or closed mind.

· Pushing back and leaning away: negative reaction, even if outwardly agreeable.

· Leaning forward: friendly, favorable.

· Covering mouth: uncertain.

· Open legs: relaxed, friendly.

· Swiveling of hips during answer: a negative sign.

· Crossing the legs above the knees: resistant.

· Crossing both legs and arms: greatly resistant.[18]

d. Are Jurors Listening?

During the voir dire process, ask yourself if the juror is listening to other jurors' answers. Is the juror paying attention to the process? Is he/she interested? Is he/she being judgmental? Is he/she rolling his/her eyes when another juror is expressing his/her views? Is the juror approving of other's answers? How does the juror answer? Does the juror make eye contact with you? Is the juror not responsive to you but responsive to opposing counsel? Use these clues to formulate specific questions that will allow you to later evaluate them for purposes of choosing a jury. Those jurors who did not pay attention to you but did to opposing counsel may not be good for your case. Those jurors who paid attention will likely pay attention to all the evidence presented in the case. Those jurors who approved of positive answers of other jurors will likely be good for your case. Those who showed approval to the negative answers of others should be struck.

F. Do's And Don'ts When Conducting Voir Dire

Following is a list of "do's" and "don'ts" rules to be considered during voir dire. This list is not exhaustive.

1. Do:

· Prepare your questions before the trial. Practice those questions. Get feedback from an uninterested person.

· Make your questions simple.

· Use simple and clear language. Do not use "legal" terms or difficult words unless you can explain them in terms that a lay person would normally use. Avoid slang.

· Know the procedures and rules followed by your judge during voir dire.

· Know your opposing counsel.

· Explain the purpose of voir dire and the reason for asking questions of the panelists.

· Explain the trial procedures.

· Mention trial objections, evidence or procedure.

· Obtain a commitment that they will follow the law as instructed by the court.

· Use natural humor. Avoid caustic wit and forced humor.

· Be courteous, polite, sincere and candid. Be yourself (unless you are naturally discourteous, impolite, insincere and deceitful).

· Say "please" and "thank you."

· Be modest. Never put on a show to indicate how smart you are. Avoid telling your "war stories."

· Personalize your client. Instead of "Mr. Defendant," use "Joe Defendant."

· Proceed expeditiously and avoid repetition.

· Memorize the names of at least five jurors. Address them by name but do not do it too frequently.

· Ask open-ended questions. Follow up if the juror does not fully answer or is hesitant in his/her answer.

· Let jurors talk and listen to their answers.

· If a juror takes pride in his/her work, give him/her an opportunity to talk about it.

· Give the impression of fairness. For example, when explaining the voir dire process, advise the jurors that both parties are looking for fair jurors. Or, inform the jurors that "both parties have a right to a fair trial."

· Neutralize the negative aspects of your case. Always disclose the weaknesses in your case.

· Identify yourself with your client by using the words "we," "us" or "our company."

· Loop your questions.

2. Don't:

· Don't bore the jury. Know when to stop.

· Don't be condescending in manner or language. Don't talk down to a juror or to opposing counsel.

· Don't make side bar remarks.

· Don't argue with the judge.

· Don't embarrass jurors. For example, don't ask what college degree a juror has, whether he/she attends church regularly, and the like.

· Don't turn your back to the jury panel unless the court is addressing you.

· Don't interrupt the judge, opposing counsel, or the jurors.

· Don't ask the question: Can you be fair and impartial?

· Don't allow your voice to sound cold or monotonous. Cultivate a warm tone. Avoid a tone of voice (and a manner) which implies disbelief of a juror's response.

· Don't ask a critical question of a juror who does not appear to be intelligent. You will probably get a wrong answer.

· Don't appear overly anxious while waiting for a juror to answer.

· Don't tell a juror you do not agree with him/her and never argue with him/her.

· Don't wear pins or rings reflecting memberships and/or beliefs.

III.

Conclusion

The attorney who does not take the time to prepare the voir dire will be surprised with the results when s/he starts focusing more on this phase of the trial. Strategizing on the sequence of the topics he/she will cover is an important consideration when preparing the voir dire. Once the trial begins, careful attention should be given to each member of the panel so you do not end up with a jury of twelve (or six) people of whom you know little or nothing. In addition, the attorney should be cognizant of his/her demeanor. After all, the attorney’s demeanor sets the framework for the remainder of the trial.

ENDNOTES