If you are not fortunate enough to have Dr. Jason Bull or another celebrity jury consultant at your side, your best chance of success is to ENGAGE with the jurors.
E is for explain, meaning that you should explain your case themes to the panel.
Voir dire is not only about choosing jurors; it is your first and best opportunity to lay out your case themes and discuss your case with the people who will ultimately decide it. You can gain valuable feedback about how the jurors feel about the pillars of your case, and you can start persuading the jury from the starting gate.
Admittedly, some judges may not give you much leeway during voir dire, but there are many ways to get there. Let’s say you are trying a case involving a somewhat subjective injury. The plaintiff’s counsel might explore the jurors’ feelings about various physical ailments that cannot be objectively measured, such as pain and suffering, vertigo, and headaches. Consider questions like, “Has anyone experienced a medical condition where there was not a specific test that could confirm you had it, such as a simple headache?” This technique gives you the opportunity to explain your case to the jury members and get their feedback. You will want to carefully evaluate each juror’s response, but, more importantly, you have planted the seed for what is to follow during the presentation of your case.
N is for nice, which is how you want the jury panel to view you.
You only have one chance to make a first impression on the jury. You want to appear competent and zealous in pursuit of your client’s case, but getting the jury to like you will go a long way. Remember that many of the jurors have never served on a jury and are nervous, while others are preoccupied with their life and places they had much rather be than in court. Get off to a good start by being nice and respectful.
I learned this important lesson many years ago from the late Frank Gorrell, a distinguished and very successful trial lawyer in Nashville with whom I worked for many years. Frank had a beaming smile, a contagious laugh, and a boisterous personality. During voir dire, he would smile and speak to each potential juror and call all of them by name. He showed a sincere interest in who they were. At the end of the trial, jurors would often stand in line to speak to Frank and even give him a hug. We can’t all have Frank’s magnetic personality (and it would be a mistake to try and fake it), but we can all be nice.
G is for gather, meaning that you should gather all available information about your panel and the local rules.
Although local practice varies, you will typically have very limited demographic information about the panel when going into voir dire. With the internet at your fingertips, however, there is a wealth of information about your potential jurors. It is now generally considered ethical to conduct searches of publicly available information about jurors, and some would suggest it is malpractice not to make such inquiries. There are boundaries, however. It is not permissible to contact or communicate with jurors, such as friending on social media or making inquiries that require a response from a juror. Also, do not refer directly to information that you gathered online during voir dire lest the jurors suspect there has been an invasion of their privacy—real or not. With that in mind, make a robust search on the internet for all publicly available information, and begin building a profile for each juror.
It is also important to gather information about the judge’s custom and practice for jury selection: the manner of conducting voir dire varies dramatically from court to court, and there is no standard way to do it. To have a successful outcome, it is imperative to know how your judge will assemble the panel, assign seats, conduct the questioning, and handle strikes for cause and preemptive challenges. To win the game, you must know the rules—so cover this with the judge at the pretrial conference or immediately before the trial starts.
A is for ask—ask the hard questions.
While it is important to be nice and to build your case themes, don’t forget that you have a job to do—determining if any juror is predisposed to decide the case against you because of a bias or deeply held convictions. You must determine if there is a sound basis to challenge a juror for cause or, failing that, to use a precious preemptory challenge if a juror is exceptionally biased against you. You will never know without asking. Regrettably, some attorneys avoid the tough subjects out of fear of poisoning the panel. The concern is valid, but it should not stop you from asking “uncomfortable” questions that are central to your case themes.
I was involved in a case recently where alcohol addiction was an issue. Several panel members had very strong views on excessive alcohol consumption. One juror even proclaimed that he regarded this conduct as “a moral weakness,” and he could not put aside those feelings. This type of answer requires substantial rehabilitation of the panel (a topic for another article). In that instance, it led to disqualification of the juror “for cause” and prompted a free-flowing discussion of this sensitive issue. It is better to find out during voir dire that a panelist has strong and hostile feelings about your client or your case than have that juror sit as the foreperson of your jury.
While exploring these sensitive areas, it is crucial to know and understand the legal standard in your jurisdiction for challenging for cause. When you encounter a disturbing answer to one of your hard questions, continue exploring the subject with the legal standard in mind so that you have grounds, if necessary, to challenge for cause.
G: Get to Know
G is for get to know, meaning that you should get to know your panel.
In addition to exploring the backgrounds of each panelist, try being creative. I recently participated in a voir dire where an attorney took the unorthodox approach of asking each juror to rank themselves on a scale of 1 to 10 in terms of how accepting they are of new information presented to them, with 1 being extremely skeptical and 10 being someone who trusts others at their word without questioning. The attorney then asked each of the 25 panelists their score and to explain how they arrived at their score. This exercise provided extraordinary insights into how the jurors processed information and also gave counsel an opportunity to have a meaningful dialogue with each juror.
E is for every: be sure to speak with each and every potential juror.
This is your first and best opportunity to build rapport with the jurors, so take advantage by speaking with all of the panelists. I make it a point to address each juror by name at least once during the voir dire, and I try to be cordial and nice in order to put the jurors at ease. When there is a large panel, this is tedious but must be done. Remember this your one and only chance to talk to the jurors before they return their verdict, so take advantage of the opportunity to learn their biases and to build rapport.
The next time you prepare for voir dire, keep these ENGAGE tips in mind to increase your chances of success at trial—and that’s no Bull.
Sam Felker is a shareholder at Baker Donelson in the firm’s offices in Nashville, Tennessee and Fort Lauderdale, Florida.