Voir Dire: The Basics
Voir dire, commonly translated from Latin or French as “to speak the truth” or “to see, to speak,” is generally a lawyer’s first contact with the prospective jurors.
In many ways, voir dire is not directed to the lawyer; it is for the jury. In fact, it is the only opportunity for the jurors to speak to the attorney and voice their feelings. The lawyer should make the best impression possible and help the client’s case as a listener. Consequently, during voir dire, the lawyer should exhibit sincerity and make the jurors feel that they are being heard and can express themselves.
From jurisdiction to jurisdiction, there are certain crucial variables: the amount of questioning allowed the lawyers; the involvement and interaction of the trial judge in the voir dire (both the judge’s personality and court rules must be considered); local case law on jury selection; and the amount of advance information available to the lawyers from various sources such as the clerk, jury pool, local jury services, public records, and law enforcement agencies.
In all circumstances, it is important to understand how jurors feel about their jury service; how they feel about the parties, the lawyers, and the judge involved; and how they feel about the law that they may be asked to apply to the evidence and issues. Attorneys must carefully design their goals and objectives in jury selection to obtain the maximum amount of useful information without crossing the lines set by the court—and while doing their best to appeal to the jurors.
Voir Dire: Factors in Evaluation
One writer posits that “[j]uries embody the best and the worst of human instinct.” Of course, attorneys try to temper that possibility with optimal jury selection.
Counsel should recognize, though, the inherent difficulties in relying upon statistical data, demographics, stereotypes, and associations in making assumptions. While jury selection necessarily entails some degree of profiling and ranking, no profile or survey will disclose how each juror will actually behave.
Whatever path an attorney chooses to follow in the process of selecting a jury, counsel may ultimately be called upon to make decisions based upon competing or conflicting characteristics and factors, if not other intangibles. Furthermore, the role that subjectivity plays in jury selection cannot be overstated. Personal judgment and gut instinct almost always predominate, whatever the book or the pundits say.
Attorneys should gauge jurors’ emotions. As may be the case in most matters—and particularly in a contentious or hotly contested matter where emotions may play some role, such as when there is an unpopular or unlikeable party because of his financial condition or reputation—there should be concern about juror biases. It is advisable to engage jurors in an effort to demonstrate a prejudice, thereby disqualifying themselves from the panel. If the matter is complex and the trial could go either way depending upon what the jurors expect and their personal codes, questions must be framed to gain insight into their thought and decision processes. If you anticipate unfounded criticism or disfavor of your position—perhaps you are representing a highly paid professional football player who injured himself playing with fireworks or defending a factory that failed to maintain its equipment—phrase your voir dire to let the jurors align themselves with those acts or omissions for which they may criticize your client.
Learning about the prospective jurors and how they feel about the issues and the underlying principles of the case not only will help you choose jurors but also will help you decide on tactics during the trial. Should you concentrate on defending your client or attacking the opposition? Understanding jurors’ emotions will help you determine the answer to this question.
Gain insight through inoffensive questions. If you cannot position jurors for challenges for cause, learn how the jurors feel about the issues and underlying principles of the case. This can be done without offending anyone. Questions about prior jury service (the type of case and the court, the ability to decide), prior courtroom experience (as a witness, litigant, employee, or otherwise), feelings on case subject topics (drugs and alcohol, employer/employee relations, undercover police or private investigators, insanity, etc.), and entertainment (literature, movies, computer or video games, television) can provide useful insight. Similarly, when permitted, personal questions on an individual basis (past and present occupations, family members’ occupations, geographic area of childhood years, children, familiarity with scene, victim of prior crime) are often enlightening—and can be used to further rapport with jurors.
Reliance on stereotypes is prevalent but can be misleading. Prosecutors and plaintiff’s lawyers have often shown a personal preference for professionals; physically infirm or disabled people; older people (without a hearing impairment); and ex-military, civil service, and insurance people. Plaintiff’s counsel and prosecutors usually have preferences for people with a stake in the community, people who are not transient—so-called solid citizens who are conformists, not rugged individualists, and have respect for law enforcement. These may include civil servants, steady workers, utility workers, bank employees, and parents. They have a corresponding dislike of schoolteachers, young people, artists and musicians, bartenders, waitresses, social workers, and taxi drivers. A person wearing sunglasses is not trusted.
The reverse strategy should be employed in selecting a jury involving the prosecution of a corrupt police officer or public official, or a plaintiff’s civil case against similar defendants. A defendant in public office is usually popular and respected, a person to whom a juror/citizen might go with his problems. In such cases, the rebel, antiestablishment, minority group member juror may be preferable. In small, local venues, jurors may tend to be more difficult to convince because of a traditional respect for law and order and police, which makes it difficult to convince such a juror that a rogue officer exists.
On the defense side, counsel will favor minorities who may have a bias against law enforcement, as well as jurors of racial, ethnic, or gender backgrounds similar to those of the defendant.
Having said all of this, though, it is important to understand that reliance on ethnic, class, cultural, and racial stereotypes can backfire in many ways. Other jurors may be put off by obvious stereotyping and exclusion, and the judge may be offended. In addition, the assumptions drawn from such prejudices could be completely opposite an individual’s character.
In-person evaluation is critical for optimal jury choices. Appearance, demeanor, and body language inform counsel of jurors who do not want to serve or feel that they are being imposed upon. Jurors who do not want to be there probably will not relate to a plaintiff or be amenable to damages.
Inquisitive, discerning, or suspecting jurors—who examine, inspect, or even stare at the parties—may be receptive to a plaintiff’s position. Stone-faced or doubting jurors with bored expressions, grins, or headshakes may benefit the defense.
Defense counsel must maximize its advantage. Usually, the defense has an advantage in following the voir dire of a plaintiff’s counsel because it can evaluate juror answers and make adjustments. However, defense counsel must then avoid repetition and losing the jury to fatigue or annoyance. In such cases, less may be more.
Attorneys must be resourceful if voir dire is limited. Some courts restrict voir dire or control it entirely. Juror information might even be limited to address, occupation, and marital status. Of course, there is always publicly displayed information, such as the dress, grooming, demeanor, and body language of the potential jurors.
If the court limits counsel’s voir dire, the selection task becomes more difficult, and counsel must evaluate which information is essential to develop in order to give weight to any assumptions or judgment calls.
Court Practices and Procedures
Counsel should be completely familiar with the particular court’s practices, procedures, and restrictions placed on voir dire. In order to plan in advance for optimally using any time allotted to counsel, using challenges, and the court’s system for doing so, it is important to know the size of the venire, the size of the panel that will be taken from the jury pool for questioning, and the court’s procedures for questioning and selecting jurors. Will you have the luxury of one-on-one conversation, or will you have to ask the entire group questions? If you will be working with a group, will you be working with the first six, the first 12, or the entire group? What information will be made available to counsel, in what format, and when? Will there be detailed or minimal juror biographical or other background data, questionnaires, or demographics provided? To what extent can counsel obtain demographic information in advance of the trial, and can it be measured against a list of available jurors prior to the day of trial?
Judicial Control of Questions
Some judges require counsel to submit questions for the judges to ask. It is important to remember that the court’s concern, which led to the invitation to submit written questions and thereby restrict counsel from a conversation with the jurors, is ensuring that jurors are not exposed to and conditioned by counsel’s theories of the case.
The challenge here is to prepare questions that allow the jurors to answer openly, express feelings, and concede biases—but to craft them in such a way that the court not only will agree to ask your questions but also will not alter their effect, by either edit or tone. At a minimum, you have to remove any hint of preconditioning. Judges will almost never agree to ask questions that deal with hypotheticals, and they tend not to accept questions that ask jurors to discuss feelings and opinions. Judges are receptive to questions that ask for specific experiences.
When you do submit questions about your jurors’ feelings on a critical issue of your case, never give in and add “. . . that would prevent you from being fair and impartial?” This is perhaps one of the most popular forms of question—but, in reality, the least effective. Do lawyers really expect an honest answer to such a direct and potentially embarrassing question? The result sought can be better obtained simply by asking jurors whether any of them have any concerns or discomfort with a particular subject or issue. For example, you could ask, “Does anyone have any concerns about X that might make it difficult for you to . . . ?” Asking anyone to admit bias or prejudice must be handled diplomatically if an honest answer is the goal. Your best bet, though, is to rely on tangible experiences that your jurors have had, especially experiences that clearly relate to the issues involved in the case.
Just because your judge is scouring your written questions for preconditioning does not mean that you can’t get away with being persuasive. Craft questions that communicate your trial themes through specific experiences that the jurors have had. Use your jurors’ specific experiences and approaches to similar issues in your case to convince them that they would do the same thing your client did, or would have done something completely different than what the opposing litigant did. For example, if you want to “argue” that a plaintiff or defendant was not being as safe as possible, you could have the judge ask a question with which you’re sure everyone will agree: “Has anyone here ever taken extra safety precautions when engaging in [whatever the plaintiff or the defendant might have done]?” Alternatively, you can make just as persuasive a point by asking a question to which you doubt any juror would answer in the affirmative: “Has anyone here ever signed an important contract worth a lot of money to you without reading it?” or “Has anyone here ever merged onto a freeway without looking in your mirrors or over your shoulder to see if any cars were coming?”
Establishing a relationship of trust and reliability with the jury is essential to trial preparation and laying the foundation for successful and effective representation of your clients. Understanding how jurors feel about all of the components of a trial, their service, the parties, the lawyers, the judge, the law to apply, and the issues requires jury selection strategies designed to obtain the maximum amount of useful information while appealing to and persuading the jurors to accept your positions.
Steven D. Ginsburg is a partner with Litchfield Cavo LLP in Atlanta, Georgia, and practices in Florida, Georgia, and New York.
This is the first in a series, which will continue in the upcoming newsletters from the Section of Litigation’s Business Torts and Unfair Competition Committee. There, imaging, marketing, and preconditioning will be put in the context of establishing trust and overcoming skepticism and cynicism. An exploration of juror expectations, perceptions, and preconceived ideas will highlight the risks of making assumptions in jury selection and showcase the strategies available for jury selection.