The Voir Dire Process
The words “voir dire” mean to speak the truth and that is exactly what we would all like prospective jurors to do. However, it is not always easy to figure out every prospective juror’s bias that will, without a doubt, affect the rights of the Plaintiff and Defendant. There are two elemental things that you must accomplish during voir dire: (1) get the jurors to talk more than you; and (2) get rid of the jurors who have biases against your client.
The manor in which you do voir dire makes a difference. Be respectful and do not argue with the jurors. Ask open-ended questions and learn about their beliefs and biases. After you have determined that a juror has certain biases that will affect his or her ability to be fair and impartial, make sure to ask them whether they can be fair and impartial to both sides in your case. Essentially, you need to politely get them to strike themselves for cause.
Never push too hard and always be polite. You should not make anyone feel bad about their views or beliefs. Instead, you simply must make sure that the judge impanels a jury that can be fair and impartial to all parties in the litigation.
What Kinds of Juror to Look (And Look Out) For
Before you enter into the process of voir dire, you should think about and come up with a list of qualities that you would like to see in the jurors whom will decide your client’s case. The types of jurors that will be helpful to you and your client will greatly depend on the facts of your case and the players involved.
Typically, people who are optimistic, caring and open-minded make good Plaintiff’s personal injury jurors. On the other hand, medical professionals, teachers, engineers and business owners can sometimes be a bit tougher on a Plaintiff’s personal injury case.
Overall, you cannot select a jury based on demographics alone: race, age, nationality, occupation, etc… Not all business owners are going to be bad for your case. During jury selection, you must find out how prospective juror’s deep-seated values and beliefs will affect their decision making in your case. Since every human being is an individual, you must get each juror to talk so that you can find out what kind of individual he or she is.
Juror Questions – How to Get Them Talking
The best way to get the jurors talking is to ask them easy to understand open-ended questions. Your attitude and demeanor is extremely important. People are far more likely to answer your questions if you are kind and inviting as opposed to pompous and guarded. In the end, you really need to enjoy voir dire to be effective. The more you enjoy the process and show an interest in the prospective jurors, the more they will open up to you and express their true views and thoughts.
The first thing you must learn to do is shut up and listen. People like when others listen to them and this is the process in which you will build your rapport with the jury. By listening to the jurors, you will accomplish two things: (1) you will learn about their views and (2) you will build a rapport with them.
You do not need to inform or persuade the jury during voir dire. Instead, the flow of information should be from them to you. This time should be spent learning as much as you can about each prospective juror.
Voir dire questions should be short, open-ended and designed to elicit a lot of talking. Open-ended questions are questions that cannot be answered with a word or phrase. The following are examples of open-ended questions:
- Tell me why you feel that way?
- What do you think about that?
- Tell me how?
Closed –ended questions are questions that can be answered with one word or a single phrase. For example, many closed-ended questions start with the words: when, was, where, were, is, did, are or how many.
It is not easy to make jurors comfortable in the Courtroom. The lawyer is often times nervous and nobody wants to talk with the nervous guy. Everybody is dressed up in suits and ties and the Judge is in his black robe. The jurors have never met anyone in the Courtroom before and now have to talk about their feelings in front of a group of strangers, some of whom look nervous, intimidating and sometimes just plain stupid.
Under the circumstances you should:
- Be yourself.
- Be friendly and warm.
- Respond with nods and approval to what the juror’s say.
- Be respectful.
- Be sensitive and understand that most of the jurors will initially have some discomfort is talking in front of the group.
You should try to avoid the following:
- No power clothes. Overly formal and/or flashy clothing should be avoided.
- Do not be a lawyer, be a person. The more human and genuine that you appear, the easier it will be for the jurors to interact with you.
- Do not try to impress the jurors.
- Do not act arrogant and/or try to speak down to the jurors.
- Do not use legalese. Speak plain English.
Peremptory Challenges and Challenges for Cause
The end-game goal is to get the unfavorable jurors to strike themselves for cause. Essentially, they have to say that they cannot be fair and impartial. Some jurors will never say that they cannot be fair and impartial. In that situation, your best bet is to get them to confirm whatever bias they have identified and get them to acknowledge that they are starting off more in favor of one side over the other.
General Topics To Cover
- Purpose of Voir Dire
- Expectations in Terms of Trial Process
- The Parties and Players
- Prior Experience
- Health Issues
- Other Juries
- Tort Reform and Legal System
- Run Away Juries
- Damages Caps
- Harms (Economic Damages and Human Losses)
- Too Many Lawsuits
- Frivolous Cases
- Just Tough It Out
- Personal Responsibility
- Requests for Money
- Self-Imposed Caps
- Religious Beliefs
In sum, you must get the jurors talking during voir dire. The jurors will be more likely to open up to you if you welcome them to do so in a warm and inviting manor. That way you will be able to identify the ones that may be biased against your client.
Browse: Home / Jury Analysis And Selection – Choose The Right Audience
By Scott Shachtman on July 3, 2010