Trial lawyers have three opportunities during a trial to speak directly to the strangers who will decide their clients’ fate: voir dire, opening, and closing. For everything else in between, a lawyer takes a back seat to the witnesses and the evidence. Studies indicate that jurors start reaching conclusions well before they hear all the evidence in cases. This means that winning voir dire is crucial to winning trials. This article will address several issues that trial lawyers must keep in mind during voir dire if they want to win their cases before they begin.
Despite admonishments from trial judges to remain open minded and not draw conclusions about a case before all of the evidence is in, ample studies suggest that it is basic human nature for jurors to start reaching conclusions about a matter from the instant that they are engaged in the process. The moment that a trial starts, jurors are observing the judge, the lawyers, the parties, and what is going on in the courtroom.
For trial lawyers, this means that you may literally win or lose your case during the first interaction with the jury, and well before you have even explained what the case is about during your opening remarks. Winning voir dire is therefore critical to winning a trial. And it is just as much about how you pick your jury, as who you pick for your jury, that determines who wins this phase of the match.
All trial lawyers must keep five issues in mind during voir dire if they want to have a chance of winning a case before it starts.
1. Know the Judge’s Preferences and Limits on Voir Dire
Knowing the rules of the game before you start voir dire is critical. You must have intelligence on the preferences of your trial judge concerning the time allotted for voir dire and whether any areas of inquiry are off limits. Some trial judges, particularly on the federal level, will handle voir dire with very limited involvement from the lawyers. State judges are often less strict. They will let the lawyers “do their thing” as long as the judge does not feel that voir dire is becoming repetitive or wearing down the venire.
One best practice is adding a discussion about voir dire to the list of topics to cover during your pre-trial visit with the court. That way, everyone knows the rules of the road and the trial judge’s expectations for voir dire well before the morning of a trial. An ounce of prevention in this area can avoid the painful consequences of drawing rebuke from the trial court, which is a cardinal sin of voir dire, discussed in greater detail below.
2. Identify Case Themes That Permit You to Understand the Biases of the Venire
By the time that you start voir dire, you better have your trial themes ready to go. Testing those themes through your questioning of the venire is critical to the process of winning in voir dire, and ultimately to winning your case.
For example, if you are trying an insurance coverage case, you will want to separate those who buy insurance from those who do not. If your case involves lapse of coverage for failure to pay premiums, depending on which side of the issue you are on, you will want to use those people who have paid their premiums to explain why they pay their premiums and what they expect in return for that payment.
If you are trying a personal injury case in a low-speed collision seeking high damages, you will want to know who has been in a similar accident and have those members explain whether they were injured, to what extent, and if it surprised them how much pain a fender bender could bring. Exploring the life circumstances of jurors that are similar to those issues that your client is pressing is key to picking the right jury and forming positive initial impressions in the jurors about your case.
3. Use Venire Members Who Will Not Make the Panel to Educate the Rest
The members who will not make your panel are just as important during the voir dire process as those who will. They are the voices that you can use to educate those who you cannot remove from the panel on issues relating to your case, even if they have no life experience to draw upon. Being strategic about to whom you ask questions to expose bias is just as important as the questions themselves. By calling upon a juror who will clearly not make the panel but who you know could provide positive information to shape the opinions of others, you can educate your panel without drawing out information that may cause your opponent to use a peremptory strike. Sometimes you can determine who will not make the panel through information provided in the juror questionnaire. Other times, a prospective juror’s placement in the venire will almost assure that the parties will exhaust their challenges before reaching that person. Identifying the jurors who will never decide your issues and using them to shape the impressions of those who will is a critical skill in winning the voir dire phase.
4. Identify Juror Social Media Accounts During Voir Dire for Your Own Protection
Content pulled from social media can be a killer during a trial. It can also tank your case without you knowing it. Odds are that some, if not most, of the jurors selected for your case will participate in some form of social media. Odds are that some of the lawyers reading this article do, too.
Knowing those jurors who participate in social media and the platforms and the screen names that they use to do it may give you a way to investigate more about them (within the ethics rules for accessing their public pages) as you determine whether they are the right fit for your jury. It may also help you protect your trial result and you personally from post-trial challenges.
For example, intelligence gathered through voir dire about the social media proclivities of your panel can help people on your trial team evaluate during the trial whether your jurors have improperly accessed information outside of the record or made improper contact with those involved in the trial proceedings. A “friending” here, a “following” there, or a “like” can matter. Knowing this information can also help you defend yourself from accusations of improper juror contact should, unbeknownst to you, a juror accesses information about you from your personal social media pages during your trial. This information could make a difference in preserving your trial outcome.
5. Stay Away from Juror Commitments and Areas That Will Draw Rebuke from the Court
One would think that this is a no-brainer. But too often in the desire to uncover biases or ingratiate themselves with the venire, counsel will stray into questioning that asks jurors to commit to an outcome if a given set of facts are proved during the evidentiary phase of the trial. When savvy opposing counsel object, you can quickly find yourself on the receiving end of an admonishment from the court or the subject of a curative instruction to the venire explaining to them why the questions and commitments that you sought from them were improper under the rules.
Slip ups such as this kill credibility and the likeability that you must create with the jurors. Depending on the error, you may recover, sometimes you may not. Avoid the guessing game by keeping your toe off the line from the start.
To sum up, voir dire is a critical and fun part of the trial process. Through this get-to-know effort, you learn about the people who will decide your client’s fate. The principles above are just some of the many to keep in mind if you want to win the case before it ever starts.
Originally published in DRI's The Voice of the Defense Bar (May 4, 2016).