A 6-step process for when it comes to getting the most out of what little you’re given in voir dire.
“Fifteen minutes a side. Make it count.”
And with that, the judge left the bench. Everyone froze. The lead lawyer looked at me; I looked at the lead lawyer. The opposing attorneys looked at each other.
And then, chaos reigned. We dashed to our separate attorney conference rooms, both sides frantically trying to figure out how to cut 85 percent of the voir dire we’d spent days crafting. Trying to figure out what our jury deselection strategy was going to be when the most useful information we were likely going to collect would be, “Who here has had a bad experience with a large company?” (Oh, and let’s not forget, prior jury service).
It was not one of my favorite days in court, but it was one of the most valuable because out of the ashes of a voir dire gone up in flames rose the framework for the Limited Time, Limited Scope Voir Dire. And we swore, with God as our witness, that we’d never go hungry for juror information again.
So, how do you make sure you’re not caught flat-footed when you have limited voir dire? It’s a 6-step process. (All of these steps are predicated on the idea that you know in advance that voir dire will be limited – the judge in the above-mentioned trial was a known procrastinator, and it cost everyone a piece of their sanity. We advocate for finding out length and format of voir dire/jury selection well in advance of the trial date, as opposed to the last pre-trial).
- Know What Distinguishes Supporters from Dissenters. Based on data collected in your jury exercise (focus group, mock trial), your consultant can perform a statistical analysis based on background information and experiential and attitudinal responses that mock jurors provide during the exercise. From that analysis will come a set of juror distinguishers – background, attitudes and experiences that set plaintiff jurors apart from defense jurors.
- Make a List of Questions with “Black and White” Responses. After you and your consultant have developed a set of juror distinguishers, devise questions that invite dichotomous responses that are hostile to your side (e.g., “Who here believes that any exposure to a toxic chemical will eventually lead to some sort of illness?”). Plan to ask these in an agreed-upon, preset order.a. Remember this is jury deselection. We want to know who will be predisposed against your case to strike them from the panel.b. Unfortunately, in 15 minutes we don’t have time for open-ended questions where answers can be dominated by a few jurors and we lose large chunks of time on one or two questions. Providing discrete, “Yes/No,” “Agree/Disagree”-type questions are critical to gather as much information as possible with time limitations.
- Set Up the Courtroom. We use numbered paddles – much like auction paddles – and preset them in the courtroom according to the bailiff’s seating chart
- Record Jurors’ Responses. Develop a “score sheet” that will allow you to easily make checkmarks according to juror number and each question asked. Have second and third pairs of eyes in the courtroom. Ask jurors who answer to hold up their numbers and keep them up. Read off the numbers so that their numbers can be recorded by your observers on the “score sheet.”
- Wrap It Up. After you’ve exhausted your list of questions (and after allowing a few minutes to talk to jurors whose associations, work or personal, may qualify them for a cause challenge), sit down.
- Rank Jurors Based on Their Responses. With the completed “score sheets,” you now have a quantitative measure of each juror’s level of hostility toward your case, and you can rank them accordingly. Use this ranking system to make your peremptory strikes.
When it comes to getting the most out of what little you’re given in voir dire, you can’t depend on the kindness of strangers; you’ve got to plan in advance.
By: Robert Gerchen, Senior Consultant