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July 11, 2011 Articles

Voir Dire in the Antitrust Case

Knowledge gained from complex antitrust cases can be used to effectively voir dire the antitrust jury. This skill has many advantages for their clients.

By Jeffrey August Beaver

As a commercial litigator, I’ve been called upon to try various complex antitrust cases in the past. I’ve used the knowledge gained from these cases to effectively voir dire the antitrust jury. Lawyers with this skill gain many advantages for their clients.

First, it is important to check with the judge who will try your case before you plan your voir dire to be sure of the format. Although for many years federal judges conducted voir dire, this is no longer the case with many judges and districts.

By the time you get to voir dire, you should have already learned the industry (back, forth, sideways, and upside down); developed your theme; and coordinated the forthcoming proceeding with your trial team, cocounsel, and counsel for your client's coparties. You should also have developed your mantra for the case. Once you have established all of this, it is important to follow these rules of antitrust voir dire.

1. Stay on message. Constantly refer to your theme and mantra, and hint at, ask questions around, and otherwise explore the jurors' reactions to your themes.

2. Always have your 60-second commercial about your case at your fingertips. (The 60-second commercial is the pitch that you develop to describe your case as if you were in the checkout line at the grocery store.) Use the commercial as a basis for voir dire.

3. Be yourself. You cannot pretend to be someone you are not, and if you try to do so, you will come off as a fake. If you are a jerk, it will come through. If you do not believe in your case, it will come through. Have all of these issues worked out ahead of time.

4. Break down the voir dire. Do not be legalistic. Use cocktail party talk. Speak your points in layman’s terms. Go back to the concise statements you made in the 60-second commercial to aid in this process.

5. You are more likely to appeal emotionally to the jury if you play up the injustice of your client's situation (for both plaintiff and defense). It is easier to garner sympathy for an injustice than to make an appeal for justice.

6. Use your technology. Use depositions, videotapes, and photographs so that the potential jurors will start to learn your case even before the jury is chosen. It will allow them to keep up more efficiently.

7. Do not oversell your case. Don’t promise more than you can deliver.

8. Be the first to confront the difficult issues. Explain the hard issues in your words to the jury; do not let the other side beat you to it.

9. Gain the jury's trust. Talk like you are their neighbor and not someone who wants something from them.

10. Be the underdog whenever possible. Be the little engine that could. Represent the industry on life support, the small or family run business, or the large company held hostage by silly lawsuits.

Jeffrey August Beaver

Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).