A Once-in-a-Trial Opportunity: Effective Voir Dire

Decades of jury research have shown that for nearly all jury pools and for nearly all cases, there will be a subset of prospective jurors who, regardless of anything, will not find in your client’s favor. If you do not succeed in voir dire in revealing and removing these jurors, the case is already lost. Once voir dire is concluded, this opportunity is gone forever. During trial, counsel will have opportunities to express key case themes and build rapport with the jurors, but the chance to learn about the jurors and influence the composition of the jury will be gone.

The most productive and effective use of voir dire is to watch and listen to the jurors talk. The principal objective of voir dire should be to identify and remove dangerous jurors rather than to argue the case or attempt to develop a relationship with the jurors.

The following practices should be employed by trial counsel, in venues across the country, to make the best use of voir dire—a truly once-in-a-trial opportunity.

Get Local Knowledge

Voir dire is often viewed as the starting line of the trial stage, the beginning of the “race.” However, it is the preparation, research, and investigation that can, and should, be done prior to the starting line—prior to voir dire, which is the true beginning. Just as runners would not show up at the Boston Marathon without months of training and hard work under their belt, attorneys should not appear before a potential jury panel without already knowing a large amount of information about the individuals they will address and their community.

The pre–voir dire investigation should start with an exploration of local customs, attitudes, and general attributes at the community level. A thorough investigation into the community at this general level is an important first step toward getting to know your jury, both individually and collectively.

Know your courtroom. Visit the courthouse and courtroom before your trial begins. Walk around; get acquainted with the security procedures, the facilities, and the overall atmosphere. Try to experience the courthouse from the jurors’ perspective. See where the jurors park. Visit the assembly room, listen to the buzz of conversation, smell the coffee. Not only will this visit serve you personally by providing a sense of familiarity before the trial commences, but it also will reveal elements of the personality that your trial will likely take on.

Talk with local counsel. Work with local counsel experienced with trial work in that jurisdiction. Local attorneys are a resource for gaining localized community knowledge and useful tips for appearances in specific courts or before individual judges. Besides the obvious procedural questions, use your meeting with local counsel to ask about important local issues, such as real estate development, traffic, crime, school activities, and jobs. Ask about what is new and what has become old hat. Ask counsel for referrals for other community leaders to contact. Sheriffs, local elected officials, clergy, realtors, and school principals can provide useful information and insights. Always be on the lookout for what issues are currently seen as most important in the community.

Study the small details. The smallest details may prove to be the most helpful in gaining a positive rapport with a panel of jurors and unlocking topics that the jurors feel are important to discuss. Listen to traffic reports in the morning, know the local terms for public transportation systems (e.g., the Green Line), and know how the local sports teams (high school, college, professional) did over the weekend.

Review juror lists. If for no other reason, review juror lists to learn to pronounce jurors’ names correctly! Say each name on the list aloud several times. Not only is it a matter of courtesy to pronounce properly the names of your panel jurors, but it also demonstrates preparation, intelligence, professionalism, and respect. When in doubt, ask for help. And when you ask a juror for pronunciation help, use the help—repeat the name aloud three times: “Ms. Chou—now, did I say that right? Ah, it is Ms. Chou. I think I have it right now, Ms. Chou. Ms. Chou, let me ask you . . .”

Change the channel. Turn off CNN, and turn on the local news. Exchange that USA Today for the local news, sports, and editorial sections. Research any past and present publicity on your case. Know the lead stories in last night’s local television news broadcast, the headlines in today’s local paper, and the topics of discussion this morning on the top local drive-time radio station show.

Review community-related social media. Review web pages, Facebook pages, Twitter feeds, and other social media content from community leaders, politicians, local news personalities, schools, and other major community institutions and employers.

Use community surveys. Community surveying is a powerful tool for developing your trial strategy while simultaneously gaining firsthand local knowledge about your target community. There are varying types of community surveys—from focus-group sessions to large telephone surveys of eligible jurors. Similarly, surveying may include case-specific inquiries or general nonspecific topics, such as politics, religion, family, or work experience. Regardless of the form, community surveying can reveal the opinions, feelings, and important issues relevant to your trial community—and steer the development of an effective trial strategy for your client.

Attorneys should be aware, however, of the pitfalls of community surveying. Surveying should be limited in scope to avoid unintentional influence of the jury pool. Attorneys also must remember that direct contact with potential jurors may give rise to ethical violations. While local law will vary concerning contact between lawyers and jurors or prospective jurors, a lawyer should not communicate directly with a juror or prospective juror regardless of the subject. Safety first: Check your jurisdiction’s rules before beginning any community survey. Then, hire professional help for survey work. An experienced jury consultant can help ensure that your survey efforts are proper, discreet, and effective.

Understand local values. Attorneys may conduct voir dire in a venue far from home. Although local counsel may assist with local legal issues, outside attorneys must educate themselves on the community’s core values—for the sake of jury selection and for trial strategy. Community ideals, morals, and values will vary from state to state and even from county to county within one state, so it is vital for attorneys to recognize and learn of their trial community’s positions in these sensitive areas.

Use a Written Juror Questionnaire

A written juror questionnaire greatly increases the information that you learn about prospective jurors. Because it acts as a form of individual, sequestered voir dire, jurors often answer more questions and provide more information in their answers on a written questionnaire than they do in panel-wide oral voir dire. We find that jurors often disclose opinions and information about themselves in a written questionnaire that they will not disclose orally in open court.

Guidelines. There are several key guidelines for preparing and using an effective written juror questionnaire.

Keep it simple and short. A simple question such as “Have you ever worked in the medical profession?” works much better than “Are you currently, or have you ever been in the past, employed, either paid or as a volunteer, in any of the following medical-related fields?”

Do not include the basic voir dire queries required by statute or always asked in oral voir dire. Do not use valuable written questionnaire space to probe prior jury duty or to determine if the jurors know any of the parties to the lawsuit.

Ask jurors to explain their answers. When you ask whether the juror has ever suffered from significant harassment, retaliation, or bullying, either at work or somewhere else, you should add, “If yes, please describe.” When you ask, “Have long have you lived in this community?,” also include the following question: “What are the most significant changes that have occurred in your community during this time?”

Ask jurors to make decisions. When you ask jurors to describe prior experiences or express their opinions about important issues, also ask jurors to describe how they would improve the experiences or better resolve or solve the issues. Following a question about prior jury service, you should ask, “What do you feel could have been done to improve your experience as a juror?” Following a question about opinions and beliefs concerning excessive lawsuit damage awards, you should ask, “What do you think should be done in response?” When you ask, “Have you ever been involved in a serious injury accident?,” you should add, “Please describe what or who you feel caused the accident.”

Provide minimal formatting for jurors’ answers. Do not use ruled lines within, or boxes around, an answer space. Observing how a juror fills a space can provide important clues about the juror. Often, there are important differences revealed between a juror whose answer comprises several large words scrawled diagonally across an answer space and a juror who writes several complete sentences of text in neatly ruled lines.

Do not ask a concluding question about whether the prospective jurors feel that they can be fair and impartial. Too often, a prospective juror’s answer to this type of question simply will provide opposing counsel with a counterargument against considering and acting on the rest of the information provided by the juror when answering all of the other questions on the questionnaire. This type of “Can you be fair?” question always should be reserved for oral voir dire. Instead, conclude the questionnaire with a question asking for additional information, such as “Is there anything else you think it is important for the court and the parties to know about you and your potential service as a juror in this trial?”

Uncovering bias. A written juror questionnaire can serve as a discreet preview of the extent to which a panel holds highly sensitive, prejudicial, or inflammatory opinions. This information can help determine whether there is a need for sequestered oral voir dire. We often use the following simple, four-part questioning format to uncover and evaluate the extent of preexisting knowledge and bias:

1. How much, if anything, do you know, or have you seen or heard, about [party/event/issue]?
2. What do you know, or have you seen or heard, about [party/event/issue]?
3. What opinions or beliefs have you formed about [party/event/issue]?
4. How strongly do you hold your opinions or beliefs about [party/event/issue]?

Procuring court approval. Not all courts accept written juror questionnaires. The following approaches/arguments have proven effective in convincing courts to agree to allow written juror questionnaires:

• Cooperation with opposing counsel. The most effective starting point is the statement, “Your Honor, we both agree.” Implicit in seeking agreement with opposing counsel is offering to include opposing counsel’s questions on the questionnaire.
• Prior use. Determine what other courts and judges have used similar written questionnaires in similar, prior trials.
• Judicial efficiency. A juror questionnaire can reduce the time needed for voir dire.
• Flexibility. Come to court with both your desired questionnaire and a shorter version of the questionnaire. Courts also have accepted questionnaires at the last moment when we have offered to strike out offending questions and agreed to make all necessary copies and provide the pens and pencils.
• Effective use of peremptory strikes. It is often helpful to remind the court that although identifying and removing biased jurors is an important outcome of voir dire, there is an equally important benefit: learning more about the jurors via a written questionnaire allows the parties to use their peremptory strikes more effectively. Although answers to questions concerning a juror’s media viewing habits or current health concerns may not speak directly to bias, such characteristics may identify an unfavorable juror.

Use Open-Ended Questions

Consider the way in which you ask questions of prospective jurors. Open-ended questions give jurors an opportunity to talk more. Closed-ended questions are more suited to reaching a group consensus or getting others to agree with a certain concept.

You can ask jurors the same question both ways for different results. In the open-ended form, the question would be, “How do you feel about government regulation of pharmaceutical companies?” Conversely, the closed-ended question would be, “Do you think there should be more government regulation of pharmaceutical companies?” Both questions get at jurors’ attitudes toward government regulation of pharmaceutical companies. However, the first question asks for their opinion, while the second one asks if they agree with a certain viewpoint. There are advantages to both ways of asking questions. You should choose the type of question that most effectively advances your voir dire goals.

There is also a difference between asking jurors for their opinion and asking jurors if they have an opinion. The difference is subtle. The first question—“What is your opinion?”—makes the assumption that jurors have thought about an issue and formed an opinion on it. It also forces a response by making jurors articulate a certain viewpoint. The second—“Do you have an opinion?”—takes it back a step. It gives jurors an out. You may want to ask the first question with jurors who are difficult to draw out. Requiring them to articulate a position, even if it is only to say that they do not know, gives you more information than asking if they have an opinion and getting no response.

Lawyers are often uncomfortable about using open-ended questions, given the old law school maxim “Never ask a question to which you do not know the answer.” Voir dire is the exception to the rule. In voir dire, asking questions to which you already know the answer is a waste of valuable time. Encouraging jurors to “get away from you” by allowing them to freely respond to open, no-holds-barred questions will reveal the personal experiences, attributes, and emotions necessary for an accurate portrait and a successful jury selection process. It is much better to “lose control” of a potential juror during voir dire than during deliberations.

Focus on Case Weaknesses

The most dangerous jurors are those attracted and receptive to the weakest parts of your case. The best way to identify and remove these jurors is to prompt them to talk about the issues most harmful to your case. Use voir dire to get jurors talking about feelings, attitudes, and beliefs that they have about the issues most detrimental to your case.

In many jurisdictions, successful plaintiffs attorneys have led the way in implementing this strategy. Often, during voir dire, they sound as if they were defense counsel. They ask, “Who here has become concerned about frivolous lawsuits and their effect on our society?” and “Who feels lawsuit damage awards are too large?” However, too often, counsel only query feelings and beliefs concerning favorable issues.

Themes. To best employ this tactic of addressing case weaknesses in voir dire, prepare a list of the five to 10 themes that go to the heart of issues likely to appeal to jurors predisposed against your client and case. These themes should be the starting point and centerpiece of your voir dire.

Often, these themes are general rather than case-specific. Regarding large corporate defendants, a top issue might concern corporate profits. For personal injury plaintiffs, a top issue might be excessive lawsuit awards and the McDonald’s coffee lawsuit.

Sometimes, the top issues have no direct, factual link to the instant case. Juror preconceptions concerning large corporations, their power and influence, and their effect on our society can strongly influence juror decisions about cases as diverse as a small-company employment dispute or trademark-infringement dispute.

These themes may be posed as questions, phrased either to the jury as a group or to individual jurors. Often, these themes are more effective if posed as a statement to which jurors are asked to express the extent of their agreement or disagreement. One example of a general theme expressed as a statement that addresses anticorporation bias is “Big companies put profits before people.”

The statements should be phrased in a manner that encourages jurors to express their unfavorable opinions. Rather than ask, “What do you think about the McDonald’s coffee lawsuit?,” plaintiffs counsel should ask, “Who here agrees, ‘The McDonald’s coffee lawsuit is a good example of lawsuit abuse’?” In a similar manner, defense counsel should ask, “Who here agrees, ‘Companies that manufacture products have a duty to make their products 100 percent safe for consumers’?”

Strikes for cause. This tactic is most helpful in those jurisdictions in which the number of unfavorable jurors greatly exceeds the number of peremptory strikes. Even adding a few strikes for cause can make a dramatic difference in the jury’s final composition. We have watched a high-profile attorney start voir dire by asking, “I have been a controversial figure; who here would have to say, right from the start, they really do not like what they have heard about me?” Nearly a third of the pool responded and was struck for cause.

Detoxification of weaknesses. Some counsel express concern that focusing on case weaknesses during voir dire may act to poison the jury pool. This concern is unfounded for several reasons. First, if the bias exists in a juror, it exists whether or not it is expressed during voir dire. Second, jurors are not likely to have important, strongly held opinions changed simply because a stranger sitting next to them expresses a strong contrary opinion. Any juror so easily swayed would be unlikely to be a dangerous, influential juror.

In fact, not only does the tactic of addressing case weaknesses in voir dire not poison the jury pool, but it, in fact, provides the added benefit of helping to inure jurors to those weaknesses. These case weaknesses often appear less sinister and dramatic when they are openly and freely raised in voir dire rather than when introduced later during the opposition’s opening statements or dragged from a reluctant witness during cross-examination.

Need for a jury consultant. It is often difficult to correctly identify the most significant areas of weakness in a case. The demands of advocacy, long familiarity with a case, and plain old wishful thinking often act to block identification of important vulnerabilities. Counsel often are shocked to hear what jurors consider important and probative. Use of a jury consultant to objectively identify and assess case strengths and weaknesses is valuable in improving voir dire efforts.

Go Beyond Demographics and Experiences

The old saw says that we are hurt not as much by what we do not know as by what we think we know that is not true. The practice of basing important jury selection decisions on demographic and experiential information is a potential poster child for this old truism. Not only is this practice ineffective in identifying dangerous jurors, it often causes harm due to the misuse of strikes that remove favorable jurors.

Demographic and experiential information such as gender, age, income, ethnicity, educational achievement, employment status, media consumption, accident experience, and medical history is the information about jurors that is most abundant and easiest to acquire in voir dire. However, research shows that basic demographic and experiential information is not predictive of juror verdict decisions. Often, it is not even predictive of the presence of initial bias for or against parties in litigation. Nonetheless, counsel often attempt to make important jury selection decisions based on basic demographic and experiential information.

Some counsel, for example, will make jury selection decisions based on a juror’s status as a current smoker, a former smoker, or a nonsmoker. Jury research consistently shows, however, that this information alone is not predictive of verdict opinion—even in cases involving lung disease and cancer. Some smokers sympathize with a fellow smoker plaintiff; some smokers find against a fellow smoker to psychologically distance themselves from the harm done to the plaintiff. By itself, smoking history is not useful information for jury selection.

Instead, counsel should use demographic and experiential information solely as a starting point for learning more about a juror. This information should be the means to learn about jurors’ feelings, values, concerns, and beliefs. To use a baseball analogy, demographic and experiential facts about a juror are like base runners that only count if the follow-up questions drive them home. Effective voir dire thus requires going beyond demographics and experiences. Some examples follow:

• Jurors often are required to disclose previous lawsuit experience. By itself, this experiential information has little value for evaluating a potential juror. However, uncovering a juror’s feelings and opinions about that lawsuit experience often provides important insights into how the juror will perceive and resolve a case. Was the juror satisfied with the outcome? Did she feel that the process was fair? What important life lessons did she take away from the experience?
• Jurors often are required to discuss previous jury experience. By itself, this experiential information has little value for evaluating a potential juror. Thus, in addition, ask about how the jury service went for the juror. Did the juror enjoy the experience? Did he feel that he could play an important role? What opinions did he form about the lawyers involved? What suggestions would he make to improve the experience?
• Jurors often are asked about family experience with major health problems such as cancer or heart disease. By itself, this experiential information has little value for evaluating a potential juror. However, adding a follow-up question often unlocks a world of relevant meaning. As a follow-up, you might ask, “What do you believe caused your father’s lung cancer?” A juror might reply, “He just chose to keep on smoking.” Another might answer, “The factory work destroyed him. He always came home dirty, sore, and exhausted.”

A little knowledge can be a dangerous thing. Demographic and experiential information is “a little knowledge.” To become useful and safe, this knowledge must be expanded to reveal what jurors feel, value, worry about, and believe.

Observe Behaviors

When prospective jurors are asked to do their civic duty by showing up for jury duty, they are removed from their daily routines and subjected to a novel and ambiguous environment in the courtroom. Most prospective jurors want to serve and do their duty for society. However, they often are required to make decisions that are more difficult than typically required and expected to articulate opinions in a public forum in which they have little experience. Most of the time, jurors find ways to express these opinions and decisions verbally. However, with limited communication skills and experience, and compunctions about revealing their thoughts and beliefs in public, jurors may communicate largely through nonverbal cues and communications. Thus, it is imperative to pay attention not only to what jurors are saying but also to how they are saying it and how they are relating to counsel during the voir dire process.

For example, evaluate the extent to which prospective jurors make appropriate eye contact and show open body language and facial expressions. Look for mismatches between what potential jurors say and how they behave. Prospective jurors who display exaggerated behavior should be avoided because such behavior often signals deceit.

Traditionally, all verbal information is transcribed and available for review by an appellate court; however, very little nonverbal information is ever made part of the record. Given the variability in scrutiny that appellate courts use regarding voir dire issues on appeal, in combination with deference to the trial court judge, it is important for trial counsel to establish as part of the record as much information as possible surrounding their observations of prospective jurors who have been subject to controversy during jury selection. Thus, when there is a potential issue regarding the decision to keep or reject a particular juror, attempt to explicitly document nonverbal behaviors of the jurors so that the appellate court has a much more robust and richer context in which to evaluate the propriety of the decisions made by the trial court judge regarding particular jurors. For example, you could say, “Your Honor, I would like the record to reflect that when Juror No. 10 answered my questions, he made very little to no eye contact with me; he was squirming in his chair; he grimaced and smirked when I asked him questions; and then when he did answer my questions, he did so in an angry and flippant manner.”

Look for Leadership

Every jury verdict arises, in large part, because of the efforts of one or two leaders on the jury. In addition to discerning whether prospective jurors are favorable or unfavorable to your case, it is important to consider their relative influence on the other jurors—in other words, their potency.

Some jurors are persuaders. These jurors wield considerable influence in the jury room, even if they are not the foreperson, and will be strong allies or foes of your case. Other jurors are participants. They will have opinions about the case and will vocalize them in the jury room but will be less influential than persuaders. And then there will be those jurors who are mere passive followers. To evaluate leadership qualities and determine which category applies to each juror, observe various traits of the potential jurors.

Watch how jurors interact. Watch how jurors interact with members of the court and with fellow jurors. Note the extent to which prospective jurors appear at ease with the voir dire process and express a level of confidence that imputes authority. Note how other jurors respond to a possible juror leader, including nonverbal cues (such as nodding in agreement) and verbal cues (giving similar answers or using similar logic in reaching conclusions).

Be observant of the entire surroundings during voir dire. Do some jurors speak out of turn? Do some jurors seem reluctant to speak at all? If so, are they shy or merely trying to keep a low profile? What do they bring with them to the courtroom, such as books, magazines, etc.? Which jurors are socializing and seem to be bonding with each other? At the first break in voir dire, which jurors start the conversations between jurors?

Watch for likability. Look for the attractive qualities of possible juror leaders. These qualities can range from favorable physical characteristics to the use of humor in a traditionally nonhumorous setting. Such qualities, in whichever form they may emerge, appear to embody confidence, intelligence, and authority.

Look beyond expressiveness. A confounding factor is that those individuals who are particularly verbose may be mistaken as opinion leaders, but this is not necessarily so. Even more difficult is determining whether individuals who rarely if ever say anything during voir dire (i.e., the wallflowers) are going to be opinion leaders.

Look for extroversion, conscientiousness, and emotional stability. Studies have demonstrated that the most influential jurors tend to be extroverted, conscientious, and emotionally stable.¹

Look for followers. Equally important to know is which jurors will be receptive to persuasion and influence. In other words, who will be the leaders, and who will be the followers? The research also indicates that conscientious people (those willing to consider all opinions before deciding) and people generally less open are the ones who are most likely to be influenced by others.

Eliminate Stealth Jurors

In addition to the subset of prospective jurors with strong preexisting opinions, attitudes, and beliefs adverse to your case—who often are unaware or unable to recognize the extent of their bias—there are also some, albeit rare, prospective jurors who are well aware of their bias, willing to hide their opinions, and motivated to sit on the jury to attempt to advance their own agenda.

These “stealth jurors” purposely try to fly under the radar; and akin to the most sophisticated aircraft radar-detection equipment not being able to detect an enemy stealth bomber, these dangerous prospective jurors are difficult to detect. As popular culture increasingly has highlighted and dramatized jury trials, and as the stakes involved have increased, these prospective stealth jurors have become more common.

Steps to detection. Increased awareness of the problem is a good first step. Going forward, as part of every voir dire, commit to allocate some time and effort to doing more to consider and look for stealth jurors.

Next, identify important aspects of the case that may motivate a stealth juror. Cases involving claims of sexual harassment or assault, claims of employment discrimination, claims regarding police misconduct, or simply large damage claims may attract stealth jurors. High levels of media attention also may attract stealth jurors. Following a highly publicized mass tort case, a juror started his posttrial interview with the statement, “I wanted the verdict to send a message.”

Look for experiential connections that prospective jurors may share with one of the parties. Recently, we uncovered a stealth juror who failed to disclose several years of participation in a memorial 5K race for the deceased plaintiff.

Characteristics. There are several characteristics associated with being a stealth juror:

• Obsequious behavior. Prospective jurors who are overly deferential to authority figures, such as the lawyers and the judge, may be particularly dangerous. Behaviors associated with this include repeated “Yes, sir” and “Yes, ma’am” responses; standing quickly when the judge enters the courtroom; and overly polite mannerisms.
• Just-world orientation. Prospective jurors who exhibit a tendency to want to “right the wrongs of the world” often may end up being stealth jurors. These types of jurors may have a heightened sense of vulnerability in their own lives and often believe that they cannot prevent bad things from happening to them. Identifiable characteristics include being extremely active in charitable activities; having a degree in the social sciences or humanities; and describing themselves as people who, for example, work really hard to be fair to all involved.
• Excessive eagerness to serve. Prospective jurors who repeatedly and overenthusiastically express a strong desire to be on the jury, particularly those who may have served on a jury previously, could be stealth jurors.
• Extremely inconsistent or incompatible profile characteristics. Prospective jurors who exhibit starkly contrasting or incompatible profiles or characteristics are likely candidates to be stealth jurors. An example of this is someone who is underemployed or whose occupation is incongruent with his education level, such as a taxi driver who has a Ph.D. in biochemistry. Another example is the prospective juror who lives 90 miles from the courthouse and is working 60 hours a week at two jobs but denies any hardship concerns.

Conclusion

You will have two opportunities to hear from the jurors: during voir dire and when they announce their verdict. Minimize your chances of hearing something that you do not want to hear at verdict by maximizing your opportunities during voir dire to hear from, and to learn about, the prospective jurors.

Voir dire offers a unique and fleeting opportunity to reveal the minds and hearts of the jurors. Prepare to use voir dire effectively to probe for deeply held beliefs and feelings. Promoting and conducting these voir dire practices can help trial counsel improve their jury trial results.

Notes

1. See, e.g., D. K. Marcus, P. M. Lyons & M. R. Guyton, Studying Perceptions of Juror Influence in Vivo: A Social Relations Analysis, 24 Law & Hum. Behav. 173 (2000).