September 18, 2013 Articles

Mastering Voir Dire

Think of it not as a process to select jurors you want, but to eliminate those you do not want.

By Robert Bates

If you Google "voir dire," you may find some mind-numbing articles claiming voir direis the process by which attorneys find the jurors that they want on their jury. When you perform voir dire, however, you are better served to think of it as a process to find and eliminate the jurors that you do not want, rather than to find the jurors that you do want. Ultimately, the success of your voir dire depends on whether you have removed potentially unfavorable jurors from your panel.

There is no special formula for voir dire. There is no special outline to follow. Yet, there are certain tips and guidelines.

Rule 1: Prepare for an Effective Voir Dire 
Preparation is essential to an effective voir dire. When you set your pretrial motions or at your final status conference before trial, ask the presiding judge about voir dire, back-strikes, time restraints, questions the judge will ask, and any prohibitions regarding what you may ask. In addition, if you practice in a state such as Tennessee where you get the jury venire well in advance of trial, vet your prospective jurors. A basic Google search, a Facebook search, and a little digging can reveal significant information about the people slated to decide your case. Once you collect as much information as you can regarding your jurors, prepare a juror board. You can use technology—iPads make tracking who is put on the panel easier—or even a simple manila folder with square sections and Post-it notes may work.

Rule 2: Make a Good Impression 
One of the most over-used, memorable adages, "you cannot judge a book by its cover," is not relevant when it comes to voir dire. The minute you stand up in front of prospective jurors, they begin to judge you. They want to know what you want and why you are trying to take them from their jobs, from their homes, and from their families for however long your trial will last.

As voirdire is your only opportunity to make a first impression, you must make it a good one. This is particularly true in those instances where you need a unanimous jury verdict to prevail—e.g., a personal-injury trial in Tennessee—because if one person finds you not credible during voir dire, that can end up being the difference between a win and a loss. Preparation is critical to appearing credible with the jury. Know the law at issue, but also know how to relay it to non-lawyers. Prepare to engage in a conversation with each juror regarding intrusive, awkward questions that you might not normally ask. If you appear equally as awkward as the questions you are asking, prospective jurors are unlikely to be candid with their replies and may distrust you.

Rule 3: Plant Seeds 
You also should use voir direto begin convincing prospective jurors to vote your way if empaneled. Think about the one big question that you want to ask every prospective juror, and phrase it in a persuasive manner. For example, the one major question that plaintiff’s lawyers tend to want to know from every prospective juror is “Will you award money damages for an injury?” Instead of asking this question straight out, you should rephrase in such a manner that plants seeds that may bear fruit in your favor later on—e.g., “Does anyone here feel that they should not award money damages to a mother and father when their son is killed in a car accident?”

Rule 4: Don’t Be a Jerk 
Just like a comedian or other live performer, the attorney conducting voir direneeds to be cognizant of his or her audience. I once saw a plaintiff’s attorney stand up in front of an East Tennessee jury and say, “I am here to find the 12 jurors that will find in favor of my client and help me win.” Ultimately, the jurors who were empaneled, some of whom were visibly annoyed by this attempt at humor and/or candor, delivered a defense verdict. Remember this story when you engage with potential jurors. Make them feel comfortable so that you can get a sense of their beliefs and opinions before making any attempts at humor. Also, do not call prospective jurors by the wrong name or noticeably shrug off their opinions, as this can turn them against you if they are empaneled.

Rule 5: Engage the Jury
During voir dire, it is imperative that you ask questions designed to acquirekey information from each juror. If you represent the plaintiff in a personal-injury suit, you need to figure out if any prospective jurors have strong feelings against suing for money. If you are prosecuting someone in a murder trial, you must learn if any prospective jurors have family members who they feel were wrongfully convicted of a crime. If you are defending a company in a wrongful-termination suit, inquire about the prospective jurors’ employment history, including whether anyone ever filed a similar suit against a former employer.

While the information that you need to acquire at voir direvaries case by case, all of this information is invariably personal and people may be reluctant to share it with you. To elicit this personal information, you need to have a conversation with each prospective juror and not talk at them. In the South we call it “visiting.” You want the prospective jurors to feel that you are sitting there exposed, vulnerable, and nervous, and that you are no better than they are. This can be accomplished by making eye contact, being responsive, and, above all, being respectful.

Rule 6: Actively Sit 
Perhaps the most important advice I have to share regarding voir dire is to know when to sit down. As in everything else, there is a balance. If you ask too few questions, you will get insufficient feedback. Conversely, if you ask too many questions, the jury will think that you are annoying or that you are facing an uphill battle.

There is no set number of questions to ask at every voir dire; you have to trust your gut. When you feel that you have gone as far as you should, sit down and watch. Take note of whether and how the prospective jurors react to opposing counsel. Contemplate what it means if they are taking their own notes. Determine whether they are paying attention or falling asleep. Be perceptive about the clothes the prospective jurors are wearing, especially the shoes, because a person’s clothes can tell you a lot about his or her background and help you estimate how that person will view your client’s case.

Rule 7: Know When to Ask for Help 
Finally, to paraphrase my father, be smart enough to know when you are stupid. There will be cases where the stakes are just too high to “trust your gut.” For those cases, hire an expert jury consultant.

Robert R. Bates is with the Law Offices of Tony Seaton in Johnson City, Tennessee.