October 2004
Volume 1, Number 1
Table of Contents

Stacking the Deck: Voir Dire Preparation
by William H. Wilhoit

In a jury trial you may gamble your client’s fate on twelve individuals that you probably do not know. They bring a lifetime of experiences that influence how they view society. These experiences dictate how they process information, favorably or not, of your client’s case. People refer to voir dire as jury selection or jury de-selection, but it is more like stacking the deck. An attorney wants to put twelve cards in the deck with the social, economic, and psychological influences that will enhance you chances of them sympathizing with (or better understanding) your case. Stacking this deck begins with preparation.

Outside Help

Depending upon the size of the case, a sociological/psychological expert may assist in jury selection. There are many jury consultants out there. It would be wise to ask around to find out who works well and who does not. The consultant will create a “model” juror that would be inclined to associate with your side of the case. Based upon this “model” potential jurors can be ranked. The expert will also sit in the courtroom taking notes of body language and appearance in calculating which jurors have the best odds of being sympathetic to your client.

Focus groups can be beneficial, but be careful for the pitfalls. The focus group should listen to the case and can give feedback on both its strengths and weaknesses. The focus group should not be cheerleaders just telling you things you want to hear. That merely breeds overconfidence, which can be fatal. A focus group should not know what side you are advocating, so you can obtain an honest, critical assessment of the case’s strengths and weaknesses. This will also give you insight on what themes work.

Jury questionnaire forms provided by the clerk will include a juror’s education level and occupation. This information helps to stereotype the jurors based upon the “model” juror. Depending upon the case, highly educated jurors may fit the “model”. In a personal injury case, the plaintiff may be looking for blue collar workers and union workers who are more likely to understand working with pain. However, be careful profiling is not an exact science.

One of the most indicative factors in a person’s personal makeup is where he or she resides (i.e.,“what side of the tracks do they live?”). Enter into Expedia.com a juror’s address to get a map of where he or she lives. To go the extra mile, have an investigator go to the address and take a picture of the house. Is the lawn kept up? Does the juror do the work or does the juror hire the work out? What kind of car is in the driveway? This information may bring to light some of the juror’s preconceptions about justice and life in general.

Always go over the jury list with your client and other attorneys or friends that live in the area. It can lead to some of the most important information such as their reputation and family history that may impact their decision making process.

Supplemental Jury Questionnaires

More attorneys are preparing additional jury questionnaires to gain information about their prospective jurors. Jury consultants can craft questions that will divulge hidden biases which jurors may be reluctant to express in a public forum. You will have to get approval from the court and opposing counsel before submitting such questions.

The questionnaire can cover many topics including what the panel knows about the parties involved. However, keep the questionnaire short. You want them to fill it out, not discard it as cumbersome. Keep the questions simple and on a reading level that all can understand. Always avoid questions that would be offensive and recheck the questionnaire for wording to be sure it is understandable and not redundant. Evaluate the answers with a consultant and/or a group. Two heads are better then one and will be helpful in getting a better understanding of their biases.


Another important tool is pre-ranking the jurors. Take all of the information discovered from the steps above and rank each juror.  Use a numbering scale to allow for easier sorting on a computer generated table.

A number one juror will be the “model” juror and the number ten juror will be the worst. Focus questioning on getting excluded for cause the number ten ranked jurors. Otherwise, reserve a peremptory challenge just for them.

The number five juror will be the “milk-toast.” This is the somewhat scary juror because his or her preferences and inclinations are unknown. If outgoing or gregarious, be extra careful. A passive unknown will go with the flow and not lead the panel one way or the other. However, an outspoken unknown could sway the panel in the wrong direction.

Computer Table and Seating Chart

A computer table of the jurors can be one of the most functional tools used. This can be a printout or kept on a notebook computer to be accessed at the trial. The latter is more effective in that it will allow you to sort the jurors based upon certain information or search for a juror. Their name, age, and occupation should be included as well as their address. A column should be included for the ranking of that juror, and another for various comments that may be important.

Finally, have a seating chart prepared for that particular courtroom. This chart will help you place a name with the face during the selection process. Always refer to the juror by their last name. People like to hear their name. Many courts restrict you to their last name, and it is probably good practice not to refer them by their first name.

Have plenty of space on the chart in each seating block for the juror’s name and notes that will be taken during voir dire. It is a better practice for an associate or paralegal to take notes during voir dire. The attorney conducting the examination should be focused on his or her discussion with each individual juror rather than taking notes. Remember, the purpose of voir dire is to get to know these individuals as best as possible in a very short amount of time.

Voir dire occurs in a limited amount of time. An attorney must determine what juror would have preconceived notions that would create a bias in the case. Due to these time constraints an attorney should also come into the trial with preconceived notions about the jurors. This preparation will allow the attorney to focus the examination on stacking the deck.

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


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