Building a Better Voir Dire

It’s midafternoon on Day 1 of a medical malpractice trial, and one of the lawyers is asking the same short list of voir dire questions to each and every prospective juror on the panel. A half dozen variations, perhaps, but all essentially boiling down to “have you ever had a serious medical procedure?” and “how would you feel if it had gone badly?” Every now and then he adds, “Could you listen to all the evidence and reach a fair verdict?”—to which, unsurprisingly, each dutifully responds that they could and would. And nothing more. Over and over, to each in turn, eliciting nothing different or particularly insightful. For their part, the prospective jurors are sitting silently, perhaps thinking about other things, as they wait their turn to be interviewed.

Whatever energy the panel felt as they first entered the courtroom this morning has long since dissipated, along with whatever enthusiasm they may have had to serve. Worse, the lawyer has learned nothing about the biases that each prospective juror would bring to the trial. Sure, some committed that they would be fair and impartial. But only a juror actively and theatrically trying to get removed for cause would have responded otherwise. How does that generic commitment help the lawyer discern where to exercise his limited peremptory challenges? How does it help the lawyer shape a jury that would be amenable to his case and themes?

Voir dire is the only chance a lawyer gets to engage jurors in conversation. It is the only opportunity to test attitudes and root out biases that, left undiscovered, might prove fatal to your case. Given the limited amount of time the court will allow for voir dire, you are not likely to reverse or even neutralize a juror’s closely held prejudices. But with empathetic, open-ended questions and careful listening, you might discern what those prejudices are (and where harmful), lock them in against rehabilitation, and remove them from your panel. Seen in this light, voir dire is less about selecting a jury and more about deselecting the least persuadable individual jurors. But first you need to understand the idiosyncratic limits your court will impose on this process.

Understand the Mechanics

Judges enjoy broad discretion over voir dire, and procedures may vary widely even between two adjacent courtrooms within the same courthouse. Some judges will describe their expectations in standing orders or publish them on the court website. But either way, you should invest some time at the final pretrial conference to discussing your specific judge’s requirements for voir dire.

For example, how large will your panel be? Will the court limit you to questioning only those prospective jurors seated in the box; or can you engage the entire venire? Are challenges exercised as you go or applied en masse at the end? Does the court require challenges at sidebar or allow them to be raised after the whole panel has been excused from the courtroom? When a prospective juror is released, does everyone slide forward or does the replacement “drop in” from outside the box? Should you address jurors by name or by number? Must you remain pinned behind the podium or can you move around the courtroom as you engage? How much of the preliminary questioning will the court cover in its own initial remarks? Will there be time limits? And while the number of available peremptory challenges is often a function of statute or local convention, those numbers vary from jurisdiction to jurisdiction. You’ll spare yourself unpleasant surprises once the process is under way by thoroughly familiarizing yourself with the mechanics beforehand.

What Are You Trying to Accomplish?

But understanding the machinery is just the beginning. Once you know what the court will allow, you still need a plan for accomplishing your goals within those strictures. For example, liability juries and damages juries do not necessarily look the same. Know which one you are trying to build, or you may end up with neither. What specific biases and prejudices are most likely to close jurors off from your themes? And how do you spot them? Here are three practical suggestions.

1. Use open-ended questions that invite conversation. As lawyers, we’re trained to control testimony with tightly reined questioning—preferably leading to one-word responses, ideally a “yes” or “no”—to which we ask that next, equally tight follow-up. But voir dire is not cross-examination, and you are trying to elicit information, not hem it in. Open-ended questions naturally invite jurors to reveal more of their internal beliefs and generate broader discussions among panel participants. Consider, for example, which of these alternative questions is more likely to probe juror attitudes about a corporate litigant: “Do you think that big companies are all about maximizing profits?” “What are some of the things you worry about when thinking about the role of big companies in our society?” With the latter, you can engage the entire jury in making a list. And then engage them in brainstorming responses or rebuttals to that same list. Pay attention to who offers which ideas, and with what varying degrees of passion and flexibility. Once you have that comprehensive collective inventory, you will find it much easier to pursue targeted follow-up with individual jurors, always with the goal of homing in on which jurors are beyond persuasion.
2. Embrace and explore “bad” answers. It is natural to want to close off a line of questioning when a prospective juror expresses attitudes hurtful to your case. Throughout the trial, you will be consistently minimizing or containing your bad facts—why would you want to give them free rein now, at the very beginning? But in truth, thorough exploration is the only way to determine which jurors hold similar views and the only way to establish resulting challenges for cause. Rather than rushing to move the conversation in a different direction, you are better off slowing down and exploring the bias fully. Courteously. Gratefully. Thanking the juror for his or her truthfulness and affirming that he or she may not be the only one who feels similarly. Take inventory of anyone else on the panel sharing similar views. Without ever arguing or rebutting those views. But at the same time getting the jurors to acknowledge the biased belief and the firmness with which they adhere to it. And the extraordinary proof they would require to be convinced otherwise. Often, when respectfully but frankly probed in this manner, jurors will volunteer the exact verbiage you will later need to excuse them for cause.
3. Pay attention to body language and nonverbal cues. That said, it’s not always about the verbiage. Sometimes jurors tell you more about their inner monologue through posture. Anyone with a teenager at home has seen how slouching in a chair can communicate defiance. Or how an eyeroll or snort can convey disbelief. Jurors sometimes reveal inner suspicion by narrowing their eyes or support or affirm by nodding their head. By translating those physical manifestations into their corresponding verbal litany of attitudes, attuned lawyers in voir dire can quickly and efficiently grasp who they want on their jury. And who they absolutely do not.