Summary
- Voir dire is, without question, the most difficult, complex, and critical part of a jury trial.
- The key to voir dire lies in establishing the emotional foundation of your case.
- Remember that no matter what, the jury is always right.
Having spent nearly 40 years in the courtroom, both in the criminal and personal injury arenas, I’ve learned a thing or two about the jury selection process. At its best, it is akin to hitting the “sweet spot” on a baseball bat or a tennis racket. It just feels right. Things go precisely where you want them, people seem pleased with your performance, and you feel you are in complete control of your environment. At its worst, it resembles nothing short of a calamity of biblical proportions. A swift death would be the only event that could mercifully cap off the day.
Anyone who has ever tried a case to a jury knows all too well “the thrill of victory and the agony of defeat.” Nowhere is that more evident than the jury selection process—voir dire. Voir dire is, without question, the most difficult, complex, and critical part of a jury trial. Many mistakes made during the course of a trial may be corrected, but when they’re made in voir dire, they can be—and usually are—fatal. And here’s the worst part of it: they’re typically self-inflicted. Your opponent never outperforms you; you defeat yourself.
A successful voir dire requires a tremendous amount of preparation. Counsel must have a thorough understanding of their case, particularly of its weaknesses. They must also possess a keen sense of human behavior and group psychology. However, more than anything else is the need to understand that jurors deliberate and decide cases based on emotion, not logic. Therefore the key to voir dire lies in establishing the emotional foundation of your case. One comprehensive and useful resource to learn this skill is the Trial Practice Manual for Criminal Defense Lawyers.
At the risk of grossly oversimplifying a skill that requires painstaking preparation, significant emotional investment, and years to perfect, I submit the following five things you should not do and five things you should do to help you improve your voir dire game.
Remember that no matter what, the jury is always right. They represent between 300 and 900 years of combined human experience. If they decide against you, it’s not because they missed something. You did.