Most veteran trial lawyers will agree that while a case is not won in jury selection, it can certainly be lost there. It is one of the three most critical junctures of any trial, yet voir dire usually is relegated to the proverbial back burner, only attended to in the waning days – or even hours – before trial begins. It may sound surprising, but voir dire development actually begins as early as the pretrial jury research phase, when we have presented the case to mock jurors and received feedback on the issues. We assess what attitudinal and experiential factors were most important in distinguishing the strongest pro-plaintiff jurors from their pro-defense counterparts. Even in cases where you don’t have the benefit of a mock trial, during the development of your case themes and storylines is the time to start listing potential bias issues that may cause certain jurors to be less persuaded by your version of the case. It is easy to prioritize opening, closing or preparation of motions over voir dire. Yet the long hours devoted to these other important aspects of trial could be for naught if the most dangerous jurors for your case are overlooked during voir dire.
The Purpose of Voir Dire
“Whom do I want?” we often hear. “Whom do I want on this jury?”
A better question would be: “Whom don’t I want?” As we’re all aware, we don’t select juries, we de-select. So the first objective of a good voir dire is to identify jurors who are predisposed against your case. The second objective of a good voir dire is to get those jurors to talk. The third objective is to get those risky jurors to talk themselves off the panel.
There are secondary objectives of voir dire, as well: to prime the jurors with your case themes and get jurors talking about them during the jury selection process; and to gain commitments that you can return to during closing arguments (“You’ll remember that before we started this trial, each of you promised to hold the plaintiff to his burden of proof…”). If your primary objective in voir dire has been to gain such commitments from jurors, do keep in mind that those commitments are most certainly worth the paper they are written on.
So, what are the key strategies to putting forth an effective voir dire and jury selection for your client? Two words: planning and practice.
If You’ve Waited Until the Weekend Before Trial to Plan Your Voir Dire, You’ve Waited Too Long
The construction of voir dire needs to start weeks before your case gets to trial, after you’ve conducted your pre-trial research (you have conducted pre-trial research, haven’t you?) and you are starting to prepare your case-in-chief in earnest. If you find yourself waiting until the weekend before trial, jotting some questions down on a pad and then getting up in court on Monday and conducting your voir dire (without the benefit of research-based profiles or of rehearsal) you could be missing out on the opportunity to effectively educate your jurors, create a group interaction and to weed out those most dangerous to you.
Getting the Most Out of Voir Dire Practice: The Voir Dire Focus Group
Virtually no practicing trial attorney goes into the beginning of trial without practicing his or her opening statement. In the past, however, very few practicing trial attorneys have practiced voir dire, the part of the trial when you speak to jurors first. What we are seeing now, however, is that more attorneys are choosing to do some formal voir dire practice in advance of trial. Most often that practice takes the form of a voir dire focus group.
Why a Voir Dire Focus Group?
Below are several benefits to be derived from taking the time to test your voir dire in advance of trial.
- You won’t have to rush. Because you have to think in advance about jury selection and put together a working outline/question list a voir dire focus group can enhance your preparation for this key event and reduce last-minute rushing.
- You can vet your voir dire questions. This benefit is especially important if your time is going to be limited by the judge. Voir dire focus groups allow you to find out in advance which questions are most important and which ones best identify your riskiest jurors.
- You can refine the questions you will use. Part of the purpose of the voir dire focus group is to get direct feedback on the experience from participants. This feedback can help you avoid pitfalls at trial, such as impromptu jokes that fall flat, such as saying to a jury panel, “Those who can, do; those who can’t, teach,” … and offending every single teacher.
- You can work on the “close out” technique you’ll use to get individuals to admit biases and thereby reveal themselves as eligible for a cause strike. The voir dire focus group is the place to make mistakes in cultivating a cause strike and to perfect the technique before trial. Good for-cause questioning technique is one of the most valuable skills you can develop to preserve your peremptory strikes and remove even more jurors who are biased against your case.
- You can discover effective follow-up questions. A voir dire focus group can help you expand your outline and learn which questions are most useful to get jurors responding to each other so that you can assess how they will function in a group setting.
- The practice can help put you at ease in front of the panel – it is important in voir dire to be spontaneous, accessible and tuned in to the prospective jurors. The attorney who has practiced his voir dire will find it easier to get “off script” and just be with the jurors, making for a more productive session in which jurors talk more – and reveal more.
How Does a Voir Dire Focus Group Work?
The great thing about doing such a focus group is that it can be conducted in two to three hours – start to finish. Juror recruitment is somewhat less formal than for a mock trial or deliberation group, and thus is more economical. And the relatively low cost of the event makes for a potentially terrific return on investment. Typically, 12 to 15 jurors participate in the exercise. Upon arrival, they:
- Fill out a brief background questionnaire;
- Listen to a brief orientation by a consultant;
- Participate in a mock voir dire that lasts approximately an hour; and
- Provide feedback through their responses to questions about whether they felt comfortable and safe in sharing their views, what questions resonated with them and what else the attorney could have asked to draw out more response.
Just like a good wine, voir dire development also takes time – the best questions mature with practice and focus. Knowing what works early on and polishing those questions so they better identify risks will produce the best results in voir dire, when it really matters.
By: Bob Gerchen – Senior Consultant and Merrie Jo Pitera, Ph.D. – CEO