February 17, 2021 Articles

Best Practices for Voir Dire

Voir dire is a critical part of effective trial advocacy and deserves practitioners’ preparation, focus, and thoughtful consideration.

By Chris Barrett

Voir dire is the process by which juries are chosen for trials. This is a critical, yet often overlooked, part of trial advocacy. The purpose of this article is to provide a brief background on the rules applicable to voir dire, as well as to provide some useful insights regarding the voir dire process.

Rules

In federal court civil cases, Federal Rule of Civil Procedure 47 governs the selection of jurors. Subsection (a) of the rule provides that the court “may permit” either “the parties or their attorneys to examine prospective jurors. . . .” Alternatively, the court “may itself do so.” Subsection (b) requires the court to “allow the number of peremptory challenges provided by 28 U.S.C. § 1870.” That statute provides for three peremptory challenges in civil cases. However, in cases involving “[s]everal defendants or several plaintiffs,” the court has discretion to “allow additional peremptory challenges and permit them to be exercised separately or jointly.” Under the Federal Rules of Criminal Procedure, Rule 24 addresses trial jurors. State courts have their own rules for voir dire.

Although rules and practices vary among different courts and judges (always be sure to check the local rules or chamber practices), the voir dire process typically involves some permutation of the following steps: randomly selected individuals are summoned to a courthouse; these individuals complete a questionnaire providing basic information about themselves; the court determines if any individuals summoned should be excluded from further consideration; either a judge or the attorneys question the prospective jurors; and the attorneys challenge prospective jurors for cause or use peremptory challenges. Prospective jurors are accepted or excluded until this process yields a full jury.

While the rules governing voir dire are straightforward in most jurisdictions, navigating the voir dire process can prove challenging for even the most experienced practitioners.

Insights

1. Have a plan. Preparing for voir dire is a crucial part of the trial preparation process that often receives short shrift. While this lack of attention is understandable given all the other demands of trial preparation, it is not advisable. Thoughtful, careful reflection on differentiating between desirable and undesirable juror characteristics based on the circumstances of your case is an investment of your time that will likely pay dividends. The ideal juror for your last case is unlikely to be the same for your current case. Which backgrounds and experiences do you think will make a potential juror more sympathetic to your case? On the other hand, which backgrounds and experiences will make a potential juror more sympathetic to your opponent’s case? Does your client have a reputation in the community? If so, what is that reputation? If potential jurors have heard of your client, what are they likely to know? Is your client sympathetic? These are important questions to ask in advance of voir dire and well worth your time to consider.

2. Put your best foot forward. Voir dire is your opportunity to make a great first impression with your jury. From the moment you are in the presence of the potential jurors, you will be closely scrutinized. Be mindful of how you are presenting yourself and your client at all times, whether or not you are speaking. In cases in which you are representing corporate clients, voir dire presents an excellent opportunity to begin the process of humanizing your client. For that reason, it is generally advisable to bring a corporate representative with you to voir dire. The corporate representative should be selected with care and should also strive to make a favorable first impression on the potential jurors.

3. Do not overestimate the potential jurors’ familiarity with the judicial process. My first job out of law school was a clerkship in a state court system. One of my duties required me to gather panels of prospective jurors and lead them from a large jury assembly room in the criminal courthouse to the courtroom in the civil courthouse where voir dire would take place. On one occasion, one man in my assigned group walked to the head of the line I was leading and remarked: “You’re pretty young for a judge, aren’t you?” This man’s comment still serves as a reminder to me to never underestimate how little a layperson may understand about the judicial process. Accordingly, when given the opportunity to introduce yourself and your case, assume that the people you are speaking to do not know anything about the court system or judicial process. In this way, you are more likely to keep the potential jurors engaged with what you are saying and ensure that they will have a better understanding of the information you are seeking to convey to them. This may result in a more favorable first impression of you among members of your jury.

4. Encourage dialogue. The best way to gather information about the potential jurors and maintain rapport with the prospective jurors as a whole is to listen to them talk. When engaging with the potential jurors during voir dire, allow them to speak as much as possible. You can achieve this by asking open-ended questions and follow-up questions and by encouraging them to explain their answers. Along these lines, be sure to phrase your questions in a way that is not hostile and that maximizes the opportunity for prospective jurors to respond comfortably. For example, note the difference between asking potential jurors “Have you ever been fired?” and asking them “Have you ever lost your job or resigned under circumstances you thought were unfair?” (Practitioners experienced in employment litigation will recognize a potential juror’s past experiences with being fired as potentially crucial, depending on the facts of the case.) The simple changes made from the first phrasing of the question to the second make the question far more likely to receive an honest answer because a potential juror may feel uncomfortable and defensive in admitting that he or she has previously been fired. The possibility of discomfort is less of a concern with the second phrasing of the question because it may feel less accusatory, allows the juror to provide context in his or her own words, and includes resignations. The second phrasing of the question nonetheless essentially uncovers the same information (i.e., termination of employment under circumstances in which the employee may have had an unfavorable view of the employer), makes potential jurors more likely to give you context and an honest answer, and thus is more likely to provide you with more comprehensive and critical information.

5. Focus on eliminating the individuals you don’t want. During voir dire, practitioners are constrained by limited time and the number of peremptory challenges at their disposal. For these reasons, focusing on excluding the potential jurors you think are unlikely to side with you is a best practice. Some advocates instead attempt to also prevent their opponent from seating potential jurors who appear to be inclined to favor the opponent’s side. Typically, it is not possible to both exclude the potential jurors who appear hostile to your position and exclude the potential jurors who, though not hostile to your position, you feel are likely to lean toward siding with your opponent. Given this reality, focusing on excluding those people you strongly do not want on the jury is advisable.

6. Strike your “friends.” While most of the people with personal connections to you or your client should be excluded from your panel prior to the start of voir dire, occasionally some individuals with loose connections to you or your client may make it through these initial screens. If possible, you should remove these individuals from your panel. This advice initially strikes some practitioners as counterintuitive. However, there is a risk that in attempting to remain as neutral and fair as possible, these individuals will overcompensate for their connection to a party or attorney on one side by being unduly sympathetic to the other. Accordingly, it is recommended that you eliminate that risk by removing those individuals from your panel.

The voir dire process is your opportunity to choose and reject members of the group of people who will ultimately decide your case. It is a critical part of effective trial advocacy and deserves practitioners’ preparation, focus, and thoughtful consideration.

Chris Barrett is an associate at Baker Donelson in Nashville, Tennessee.

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