We have heard a number of judges, particularly those on the Federal bench, argue that attorney-conducted voir dire is essentially a waste of time. They complain that lawyers misuse this time trying to improperly influence the jurors, and claim most attorneys simply aren’t good at asking questions. One judge we spoke to said many lawyers appear to have poor listening skills; they repeat questions they have already asked, or worse, fail to follow up on questions that raise legitimate bias concerns. He also said attorneys too often seem to have no coherent plan for their voir dire questions, and instead “ramble around like Moses in the desert.”
While we could not disagree more about the value of attorney-conducted voir dire, we have to admit we have seen many lawyers perform in exactly this way. We believe this stems from some fundamental misapprehensions about the goals of voir dire, and because the skills that are important during this process are very different from those of a good litigator or trial attorney. Moreover, many lawyers do not give the same time and attention to preparing for voir dire as they do to other aspects of the case. This article is intended to address some of these issues, and to provide some guidance on how to avoid the missteps we often see.
Remember Why You’re There
Especially when voir dire time is limited, your job – first and foremost – is to glean as much information as you can about potential jurors. You are not there to argue your case or ingratiate yourself to the jurors. Those things can be a waste of precious time, especially for lawyers who are not very experienced with jury selection.
Evidence shows that jurors make decisions based on evidence, not on lawyers’ presentations or personalities. So while it may be valuable to develop a rapport with potential jurors, don’t waste your time trying to “make friends.” Nor should you try to “condition” the jury by injecting argument into your voir dire. While introducing themes can and should be done during the voir dire process, especially if your voir dire time is limited – keep it simple. Jury selection is your only opportunity to try and remove jurors who may be biased against your client, either through peremptory or cause challenges. Therefore, your primary focus must be identifying those jurors.
Remember to Listen
Commonly translated as “to say the truth” or “to speak the truth,” voir dire is the time when jurors talk. However, far too many lawyers spend their time talking rather than listening. And as Will Rodgers famously said, “If you’re talking, you ain’t learning.” What’s more, judges are probably less likely to enforce a strict time limit when the jurors are doing a lot of talking and providing a lot of information.
Therefore, when developing your plan for voir dire (and yes, you must have a plan – winging it is a bad idea), devise open-ended questions that get jurors talking. Ask them about relevant experiences. Encourage them to describe these. Ask them how they feel about these experiences. Use non-verbal cues like nodding your head to show you are listening and keep them talking. Allow them to finish their responses. Don’t rush to finish their sentences or anticipate their words. And don’t ask questions that offer them limited alternatives. Your questions should be more like essay questions than multiple-choice.
This type of active listening is the best way to uncover attitudes that may cause jurors to lean toward or against your client, because attitudes come from experiences. Thus, in an employment case you want people to talk about their own workplace experiences and those of their friends and loved ones. Don’t ask them whether they agree that an employer has the right to fire someone who violates workplace rules. Ask them if they or someone they know has ever been accused of violating workplace rules. Encourage them to describe what happened. The more they talk about it the better able you will be to gauge their attitude for yourself. And don’t forget to watch other the jurors as one of them is talking. You can learn a lot by noting the ones who nod in sympathy or scowl in disapproval.
The one exception to the “keep them talking” rule is when a juror begins to reveal a positive attitude toward your client. Without making it obvious, shift the questioning to another topic or another juror. You want to avoid having your good jurors talk themselves into a cause challenge, and if your opponent isn’t paying close enough attention, there’s always the chance he or she might not follow up.
On the other hand, do not give in to the urge to shut down, or worse, argue with a juror who is obviously biased against your client. Some attorneys worry that such a juror will contaminate the group with his or her negative bias. However, such fears are largely unfounded. As discussed above, attitudes are formed by life experiences, and simply hearing someone else express his or her views is not a life-altering experience that will suddenly transform other jurors’ beliefs. What’s more, you need to know what negative biases these jurors hold. It is much better to hear it in the courtroom, than to miss it and have them argue it in the jury room. Moreover, questioning such a juror presents other opportunities.
Watch how other jurors react. Make note of those who appear to agree and make sure to follow up with them. You can also try and use them as a teaching experience. If the view is particularly extreme or illogical, allow the juror to expound in order to demonstrate the unreasonable basis for their view. Finally, and perhaps most importantly, allowing such a juror to fully elaborate on their viewpoint can help set up a cause challenge.
The importance of cause challenges cannot be overestimated. Every juror you can cause off saves a precious peremptory challenge, and we recently observed a trial where an attorney was able to significantly change the composition of the jury panel by carefully developing successful cause challenges. However, it is not enough to simply have a juror say the talismanic words “I can’t be fair.” The judge (and opposing counsel if they have the opportunity) will try and rehabilitate the juror. Typically, the judge will explain that he or she will instruct the jury to put their own bias aside, and to judge the facts based only on the evidence, generally ending with the question, “Will you follow my instructions to do that?”
Generally, jurors will have a difficult time telling a judge that they will not follow his or her orders. However, the more time a juror has spent explaining, in front of a courtroom full of people the nature of their views and describing the experiences that led them to adopt these views, the harder it is for them to say they can put them aside. In other words, if you allow the juror enough time to fully express him or herself, they convince themselves of the strength of their beliefs. You can also help them along on this path by asking things like how long they have held this belief and how the belief has affected their actions in the past.
Developing case-specific questions and a strategy for asking them is essential to conducting effective voir dire. This is especially important when your voir dire time is very limited. Before you address the practical nuts and bolts of creating a voir dire plan, you must focus on what you are trying to accomplish. Do not be distracted by competing goals like conditioning the jury or ingratiating yourself. Even if these things were possible, given the limited amount of attorney-conducted voir dire allowed by most courts, you simply don’t have time. Instead, you must prioritize information gathering, not salesmanship. Create an environment where jurors can express themselves freely so you can identify for deselection the ones most likely to be hostile to your case.