Most articles about voir dire discuss what you should do during this process – e.g., build rapport, identify bias, prime your themes – but you don’t often read about what not to do. As you read this, you will wonder, “What skilled lawyer would make such a mistake?” But that is exactly what it is – a mistake. No one intentionally sets out to do the wrong things in voir dire. It is a stressful situation; it is the first time you have an opportunity to address the jurors directly, but you also have many goals to accomplish in a short period of time. Some questions are crafted as a result of jurors’ responses to your scripted questions; sometimes you are thinking on the fly and sometimes things just don’t come out right. Or you have a goal in mind (e.g., trying to close a juror down on cause) and you forget how you are coming across when trying to do so. The lessons below are from real trials watching opposing counsel who meant well, but their voir dire delivery backfired on them.
Tip #1: Don’t offend your jurors. This seems like an obvious mistake to avoid, but it is the easiest mistake to make when you aren’t watching your words. Sometimes the most common expression can inadvertently insult the jurors. For instance, as an introduction to a voir dire question posed to the panel of prospective jurors, opposing counsel was describing how his expert was more credible than the defense’s expert by the use of a common expression: “Those who can, do; those who can’t, teach.” At this point, it didn’t matter what his question was or what the point of the question was, his audience of hard-working jurors heard that comment. There were several teachers and substitute teachers on the panel, not to mention jurors who had family members in the teaching profession. This was a poor choice of words, and a good way to alienate a significant number of jurors on his panel with one simple phrase at the very beginning of trial.
Tip #2: Avoid calling a juror’s integrity into question. Another way counsel can offend a juror is to question the veracity of a juror’s response. In another example, counsel, in an attempt to close a juror out on cause, framed his question on the fly, resulting in all 65 jurors, as well as the attorneys and female judge, gasping. It turns out the juror he was speaking with was a young male who knew one of the other jurors on the panel (he went to school with her son). In the attorney’s attempt secure a response that would rise to the level of a cause challenge, he did two things horribly wrong: 1) he called the male juror’s integrity into question; and 2) he offended the Mother. On his third attempt to secure a response to support a cause challenge, the attorney asked Mr. Male Juror if he would feel he might have difficulty expressing his opinions with an authority figure like Mrs. Mom if she were on the jury. Mr. Male Juror responded, “Not at all. I make my own decisions.” Counsel responded with mistake #1, “Really? You were just a kid a few years ago…” Not skipping a beat, he continued into mistake #2, “…and besides she is soooo much older than you.” The entire room gasped with utter surprise at what he had said. The female juror was surprisingly a good sport about the age comment, but the impression was made. It’s a cardinal rule – never comment on a woman’s age or weight – but this is what happens when you aren’t paying attention and begin crafting questions on the fly. Instead, make a list of the things people find offensive or embarrassing if they are discussed in public – put those topics on the “do not mention/discuss list.” For this reason, and a variety of others, practicing voir dire is a prudent strategy. You can assemble an informal panel of staff members or you can conduct a voir dire focus group (see March 2011 issue for more information). Practice makes perfect.
Tip #3: Skip cross examining your jurors. While they may not know what to call it, jurors know when you are trying to remove a juror for cause. You made a first pass, then a second, but the juror just didn’t give you enough. So you give it a third and fourth try. At this point it is clear to everyone in the courtroom, the venire and especially the juror you are talking to that you don’t want him or her on the panel. Though you are in a frustrating position, remember that you may be sacrificing opportunities to build positive rapport with this juror and the rest of the panel, especially if you do not successfully strike him or her from the jury. Know your limits; know when to stop.
By: Merrie Jo Pitera, Ph.D. – CEO