When Evaluating Counsel, Jurors Rely on Their Gut
We all know first impressions hold lasting importance. Yet, in the flurry of activity leading up to trial, attorneys, clients, corporate representatives, and witnesses can forget that prospective jurors blend in with the rest of us in the courthouse. Because they are in unfamiliar surroundings, jurors are walking around with a heightened sense of awareness. They are closely observing the people milling around the courthouse—including you. Jurors’ initial impressions of you when you are not officially “on” in the courtroom can affect whether jurors will listen to you, whether they will like you, and how they will assess your credibility.
A hypothetical illustrates how jurors develop their opinions about you before voir dire. Running late to the courthouse for the pretrial conference, an attorney speeds through the garage and parks too close to a juror’s car, so the juror has a hard time getting out of her vehicle. The attorney briskly walks into the courthouse, but security is backed up. To bypass the line, he slyly steps in front of the juror who will be on the fence during the jury deliberations in his case. Then, the attorney pushes his insanely large briefcase into the crowded elevator instead of waiting for the next one. As a result, his future jury foreperson is squished in the back of the elevator. Hours later, this individual is staring back at the attorney from the jury box, waiting to hear opening arguments. Will she be receptive to the attorney’s argument or distracted after remembering his earlier behavior outside the courtroom and have a negative gut reaction to him? As trial counsel, we should accept that we are always “on” because jurors are watching and making credibility determinations while we are distracted, stressed, or focused on other matters.
Illustrate What “Bias” Really Means
In this politically correct society with dueling 24-hour news networks, the term “bias” has taken on a negative meaning. To be effective, trial attorneys need to be able to explain succinctly what bias really is. Indeed, we all have biases, and it is important for jurors to discuss any relevant biases during voir dire related to the case. Further, jurors need to understand that just having a bias about something—for example, a dislike for insurance companies—does not mean they cannot serve on the jury.
The process of educating prospective jurors on bias allows you an opportunity to build a rapport with jurors so they feel more comfortable with you and voluntarily answering questions. During voir dire, I use a sports fan’s allegiance to his team to demonstrate bias in a noncontroversial way. Short for “fanatic,” sports fans only cheer for their team. It does not matter if the team is having a losing season, the quarterback is terrible, or who the opponent is. True fans never root against their team.
In one trial, I asked jurors to raise their hands if the Cowboys were their favorite team. Living in Dallas, most raised their hands. Next, I asked if anyone liked to watch the Washington Redskins play, maybe because the team signed local favorite Heisman Trophy winner, Robert Griffin III. Most prospective jurors kept their hands raised. Then, I asked the prospective jurors to keep their hands up if they would ever cheer for the Redskins over the Cowboys. Every single hand came down. One prospective juror accidentally hit the person beside her as she forcibly pulled her arm down! After the laughter subsided, I explained that their reaction to my questions was an illustration of bias—no matter how likable the Redskins or their players are, true-blue Cowboys fans would never cheer for the Redskins against the Cowboys. In agreement, the jurors looked at each other and shook their heads. More importantly, they personally understood what bias truly is and the importance of sharing their predispositions during voir dire.
Another technique is to share a noncontroversial bias you hold with the jury to get them talking about their inclinations. For example, I have shared with juries that as a mother of a young daughter, I do not believe I could remain impartial in a case when a child was injured due to another’s negligence. These two examples drive home to jurors the real meaning of bias and allow you to build a rapport with the jurors.
Develop Your Personal Voir Dire Style
Every trial attorney must decide how to handle voir dire based on her personality. No one style is better than another, but the demeanor and approach you select must come across to the jury as authentic. Indeed, you probably will not handle voir dire the same way that the partner you worked for did, because of your different communication styles, age differences, and life experiences.
When preparing for voir dire, you also need to take into consideration the issues in the case and how the jury will interpret your questions and demeanor. For example, in a wrongful death or personal injury case, you naturally would take a more serious tone during voir dire so you do not come across as crass or uncaring. However, if it is a general breach of contract or a commercial dispute case, adding levity to the voir dire process may be warranted. Determine how you can use your personality to bond with the jury while gathering the information you need for jury selection. If you have a sense of humor that others appreciate, use that asset to build a rapport and get the jury to relax. Alternatively, if you are introverted, use that trait to bond with jurors who may feel uncomfortable talking in front of groups.
One strategy I use in voir dire to get prospective jurors talking is to share personal information when that information will lead to a question I plan to ask the jury. More often than not the jurors respond by voluntarily raising their hands and revealing their personal information and proclivities.
In one case, the plaintiff was a former Marine officer, and my client understandably was concerned that the jury would be biased in the plaintiff’s favor because of his military service. Because my father was a Marine drill sergeant, and I was born on a military base, I shared that information with the jurors. Then I asked if anyone on the panel served in the military. Before continuing the questioning, I thanked those jurors for their service. For the individuals who raised their hands, I posed a second question and asked each of them whether he or she would take the word of a military person over the word of a civilian solely because of his service, or would give that testimony more weight. After getting those answers, I turned to the rest of the panelists who were not in the military to get their thoughts. This approach met three objectives: (1) it neutralized any bias jurors may have had toward the plaintiff because he was a Marine officer (in this case, by talking about my own life experience); (2) it showed respect to jurors who served our country; and (3) it uncovered potential bias either military persons or civilians may have had in favor of my opponent.
A Few More Techniques When Preparing for Voir Dire
Here are some additional practical tips for conducting an effective voir dire:
Know the “local” local rules. Every judge handles voir dire differently.During the pretrial conference, if the judge does not discuss her voir dire requirements in detail (or glosses over them), ask her how she wants voir dire to be handled: i.e., time limits, off-limit topics, discussion of the facts. Understanding the rules prior to voir dire will prevent the judge from interrupting you while you are trying to build a rapport with future jurors. In this instance, it is better to ask for permission than seek forgiveness.
Scrap the script. At its best, voir dire can be a free-flowing conversation between you and the prospective jurors. If possible, use a notecard or sheet of paper that has the areas of inquiry listed. This will free you to listen and respond to the potential juror’s answers instead of reading the next question. Indeed, you may want to make a clarifying comment, ask a follow-up question, or ask other jurors what they think. Relying on a script causes your voir dire to be disjointed and impedes your ability to connect with the jury.
Mind your manners. Refer to the prospective jurors by their surnames, not their designated jury numbers. By doing so, you are treating them with a level of respect they deserve. Also, if you do not know how to pronounce a juror’s surname, just ask him or her how to pronounce it—then say it correctly. Do not pander to the juror by asking her for the correct pronunciation and then butcher her name for the remainder of voir dire. Also, using the manners your mother taught you—“please,” “thank you,” “sir,” and “ma’am”—never goes out of style.
Every opinion matters. Make voir dire feel like a focus group where everyone is free to share his or her opinion. Use follow-up questions to ask other prospective jurors how they feel about a topic you discussed with another juror. For example, if a juror is signaling through her responses or nonverbal communication that she may be biased in favor of your opponent, use it to your advantage. Start by sincerely thanking the prospective juror for her honesty, then ask more probing questions regarding why she feels that way. Once you feel confident you understand the juror’s position (and have adequately exposed her bias), open the topic up to the entire group: “Ms. Marlow did an excellent job explaining her position. Does anyone feel the same way?” Then, go through the same process with the prospective jurors who raised their hands in agreement with the biased juror to identify others you may need to strike.
Leave the legalese at the office. Jury pools are fascinating because of their racial, educational, socioeconomic, and religious diversity. There likely will be a cross-section of business professionals, nonprofessionals, laborers, and unemployed individuals in the jury pool. Further, the jurors will have varied levels of education. As a result, when developing your voir dire style, make sure you are asking questions or making comments that will allow you to connect with all jurors—no matter their ZIP code, tax bracket, or education level. Accordingly, leave the big words, complicated hypotheticals, and compound questions at the office. Instead, ask short, concise questions that will engage all the jurors so they will voluntarily and openly communicate with you.
Keywords: litigation, woman advocate, voir dire, trial skills, jury panel, jurors, juror bias