February 2005
Volume 1, Number 2
Table of Contents

The Voir Dire Process
By William H. Wilhoit

A well prepared voir dire allows the attorney to focus on having a conversation with the jurors and appreciating their nonverbal behavior. When entering the courtroom, the attorney or paralegal should be watching the jury panel interact with each other. Who is sitting by whom?  Who seems to be friends? Are more than one of these friends sitting on the panel? If they are together, they are likely to vote together. Make sure that they are “good” jurors. Block voting can help or hurt.

Are they reading any books? If so, what kind of book? Murder mystery readers are naturally going to be looking at some miniscule piece of evidence to hang their hat on in their decision. If they are reading a romantic novel, then they tend to be more emotional in their thinking.

Whether one is first or last in voir dire, be prepared to start talking with the jury immediately. Do not fumble around for papers or move the podium, but stand up and start a conversation. Get their attention first. This is their first impression of you speaking, and you should give them your full attention. Make them feel important. Some attorneys may talk really brief about the tradition of jury trials and how important their service is to our society. If the jurors’ first impression is that you are giving them your undivided attention and that they are important, then that would be considered a good first impression. After the first impression is laid, then you can move a podium or look through your papers to continue.

You have to be sure that the questions you crafted will not embarrass any jurors. Remember that many will not be comfortable speaking in public. Asking them personal questions may end up ostracizing you from the panel. Try to start with questions that will put jurors at ease about the process so they will open up. Avoid questions that make the jurors feel inferior. If you come across as arrogant or superior, no one will like you or listen to anything you have to say. Be humble!

Paralegal help

If resources allow, a paralegal can be very helpful in the voir dire process. The goal of a successful voir dire is to have a conversation with the potential jurors. It is easier to have a conversation with people when you are not too busy writing down notes of what they say.

Have a paralegal write down the names of the jurors as they are called. The list should have them in a seating chart. Also, make a note of their appearance. First, this can tell you a lot about a jurors. Are they dressed nice? Are they overweight? Do they look old? Do they have a grumpy appearance? This will assist you in deciding whether a juror is good for your panel. Having a seating chart and a description of each juror will also help you identify which juror you are talking about when you go back to select your peremptory challenges.

The paralegal needs to take notes of each juror’s answers to your questions. Keep track of any posture signs. Any jurors that fail to look at you when you (or opposing counsel) are talking to them? Are their arms crossed? Some may try to hide their preconceived notions of litigation with their answers, but their body language may give them away.  Make note of the jurors that seem passive or outgoing. This will let you know who is going to be vocal in deliberations, and who will just go along with what the others want.

When you are talking, are the jurors making eye contact or are they looking elsewhere? Is their speech confident or hesitant? Do they seem anxious, relaxed, withdrawn or bored silly? However, be careful about their body language because what may seem to be hostile body language to you may also be directed at both sides.

Open ended questions

This is probably the biggest mistake that an attorney can make in voir dire. Jury selection is not a cross-examination, but more like a direct examination. In cross, you ask leading questions to illicit a specific answer. In direct, you want witnesses to tell their side of the story. That is what you are trying to get out of the jurors. You want to start up a discussion with them about certain topics.

Cross examination questions are adversarial in tone. You want the jurors to like you, not get defensive. Ask questions about them in a way that they will be glad to respond. Be careful about asking too personal of questions. You do not want to alienate somebody by hitting a raw nerve on a personal topic. Make sure your questions are obviously relevant to the case at hand. Do not ask “What was the last book you read?” That might be good in a large case with a written out jury questionnaire form prepared by the parties beforehand but not in open voir dire.

If you have pre-ranked your jurors, direct the question to those that you rank low. As a general rule, avoid asking questions of your higher-ranked jurors. You do not want to give the other side any reason to strike them. You need to be looking for a good reason to strike for cause the ones you do not want. The exception is when there is a particular issue that needs to be flushed out early. If you can get enough jurors talking positively about your position, the others may be influenced.

One of the risks of voir dire is that you expose your high-ranked jurors to opposing counsel for them to strike. One strategic aspect is to ask questions in a way to bury your good jurors and flush out your strikes. In an insurance bad faith case, an attorney may ask, “Do you believe insurance companies try to unfairly avoid paying claims?” This question may get a whole lot of affirmative answers, too many to be really helpful. Neither attorney will have enough peremptory strikes to deal with that question, so it is tactically ineffective. However, if you quantify the question, you narrow the scope and bring out those with stronger opinions on the issue. For instance, an insurance defense attorney could rephrase the question, “Do you believe that most companies unfairly try to avoid paying claims?” Not as many people will have convictions that “most” act in such a fashion. So, now the pool of strikes became a lot smaller for defense counsel to identify, while the plaintiff’s counsel will be stuck with an even larger group that could be focused against him or her.

The attorney wants to get a small number of jurors to answer to a question that will show strong convictions on an issue. This narrows the number of potential strikes to work with while not exposing your best keepers.

Pain and suffering is the most subjective and intangible damage claim you can make. Get discussions going on this element of damage. You almost play Arthur Miller as a moderator looking to foster a discussion on this important element of damages. Remember to focus your questions to flush out the few with strong convictions against you as opposed to showing your keepers.

Be Flexible

Listen! If a juror gives an answer that raises a potential problem area—shoot from the hip. Follow up on the issue with that juror. Listen not just to the answers to your questions, but to the answers (and questions) of your opponent’s voir dire examination. Just as you try to lay the groundwork for your theme, your opposing counsel will be doing the same. Listen to his or her questions to pick out these little landmines being laid. Hopefully, you will spot them and steer the jury away from them with questions of your own. If you went first, ask the judge for the opportunity to follow up on some questions raised in the other side’s voir dire. 

Voir dire is less a science and more of an art. These are guidelines that may be helpful in finding jurors that will be more inclined to follow your side of the case thereby stacking the deck and setting up the win.

William H. Wilhoit is a solo practitioner in Grayson, Kentucky.

 

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