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A version of this article first appeared in The Advocate.

Don't Make Voir Dire So Difficult

Adopt a "Conversational" Approach Instead of a
"20 Questions/Job Interview" Approach

by Amy Singer, Ph.D.

The great humorist Will Rogers once said, "The minute you read something you can't understand, you can be sure it was drawn up by a lawyer!" It's true; lawyers do tend to complicate things. Voir dire, for example. The term "voir dire" translates from the Latin as "true talk" and from the French as "to see them talk" - simple, clear concepts. Why then do many attorneys take voir dire - the trial component organized to let jurors "speak the truth" - and make it so complex, difficult, and uncomfortable for the jurors and themselves?

Instead of permitting the jurors to reveal their attitudes and opinions, for example, many attorneys rely almost exclusively on close-ended questions - "Have any of your relatives ever been party to a lawsuit?" - to tightly control, contain, and limit the jurors' responses. They use their restricted voir dire time to present a "mini" version of the case; or to force the jurors to agree in advance to one-sided conditions - "If I can prove _______________, you understand you must then find for my client?" - regarding how they should decide the case.

Additionally, they turn off the venire by grilling them as if they are undergoing strenuous job interviews; by lecturing them about abstruse aspects of the law pertaining to the case; by asking insulting questions - "Will you follow the law?"; or by subjecting them to a bone-headed "20 Questions" approach - "Please tell us the names and ages of your 10 children."

Dale Carnegie said that if you're the one doing all the speaking, your listeners end up judging you. Many attorneys nevertheless squander their one brief opportunity to learn about the jurors by dominating voir dire so the jurors barely have an opportunity to speak.

Finally, many attorneys waste their time evaluating jurors primarily on "demographic" factors - age, sex, religion, occupation, income - despite the fact that scientific research has clearly established demographics have little or no bearing on jurors' attitudes concerning specific cases. Numerous jury studies indicate that it is jurors' value beliefs - the bedrock principles they hold most dear - and not demographics that correlate with verdicts.[1]

Off to a poor start

What do you suppose is the result of all these convoluted, wrong-headed, and mentally exhausting efforts?

Bored jurors. Insulted jurors. Irritated, even angry, jurors. Hardly a propitious way to begin the case. Plus various socially-acceptable responses, or even out-and-out lies; along with a bunch of often misleading demographic data about the jurors.

What the attorney does not have is any truly worthwhile information concerning the jurors and what they think and feel about the case. (What the attorney often does have is a failed voir dire.)

Voir dire does not have to be so difficult (or so pointless and self-defeating). It should and it can be much simpler. Indeed, when the attorney properly orchestrates voir dire, he or she can use it to readily achieve voir dire's primary purpose - uncovering and eliminating biased jurors who are automatically predisposed against the case.

The perfect voir dire

So how do you achieve the ideal voir dire?

The answer could not be less complicated. The most effective voir dire is accomplished when the attorney briefly phrases questions about the case's key issues (not facts, since judges will not allow this), asks the jurors their opinions concerning these points, and then carefully listens to and observes their responses. When a juror offers an opinion concerning a central case issue, the attorney quickly determines through a show of hands who agrees with the opinion and who doesn't. He or she asks individual jurors to discuss why they voted one way or the other, and to comment on the opinions already expressed. The jurors are encouraged to speak fully and freely. Through this process the attorney uses voir dire to, in effect, "converse" with the jurors - and in the process get the jurors to "converse" with each other for all to hear and see - regarding the key case issues. The attorney sparks the conversation among the jurors, keeps it going, and listens carefully to what is said. And that's all there is to it. What could be more natural?

To illustrate, let's imagine that the case concerns medical malpractice. A typical voir dire might go as follows:

A "conversational" approach

This "conversational" approach to voir dire offers the attorney a number of clear advantages. Through it he or she can gain a superior understanding of each juror's individual opinions and attitudes concerning the central issues of the case and thus quickly learn who is on his or her side and who isn't. Additionally, the attorney can employ this conversational (and unguarded) format to prompt biased jurors to bury themselves with their own words in front of everyone. As a result it will be almost impossible for the judge to rehabilitate such jurors later. In the example above the attorney has successfully employed this technique to set up Juror No. 5 for cause.[2]

Group dynamics

Another valuable attribute of this conversational approach to voir dire is that it enables the attorney to observe how the jurors as a group will relate to the key case issues.

The attorney must remember that he or she is not selecting 12 individuals for the jury but rather assembling 12 people who will decide the case together. It is highly worthwhile therefore to use voir dire to observe the venire's group dynamics in order to determine how they will deliberate with each other later.

For example, when the jurors are polled regarding whether they share a particular opinion, how do they react? Do they quickly raise their hands to signal assent or do they check with each other first? How do the jurors respond to their more vocal members - meekly or confrontationally? What about their body language? Do some jurors nod in agreement to what is being said while others roll their eyes in disgust? Do jurors who share the same opinion make eye contact, even smile briefly at each other? Are there any indications that certain sub-groups may form during deliberations? Which jurors are likely to dominate such groups?

Jury deliberations are marked by information pooling and error correction, along with an overarching desire to achieve harmonious results. Do any of these characteristics become manifest during voir dire? For example, does one juror try to add to - or correct - what another has said? How do the other jurors react? Approvingly? Disapprovingly? Are the most intelligent jurors also the most vocal? Which juror is most liable to play a leadership role during deliberations?

Such broad-gauged determinations can only be gained during voir dire when the attorney uses a conversational approach that permits the jurors to speak openly about their attitudes and feelings. Voir dire is more psychological than legal because it concerns peoples' attitudes and opinions. Attorneys who approach voir dire with this in mind will be more successful in targeting and deselecting biased jurors.

Trial elements balance

There is balance to a trial. The opening statement balances the closing argument. Cross-examination counter-balances direct examination. And what comes out during deliberations also should come out during voir dire. Jury deliberations are nothing more than a series of conversations among the jurors concerning the case and its key issues. The goal of the attorney is to encourage (and to "tap" into) the same conversations among the venire during voir dire.

Use open-ended questions

The attorney should use open-ended questions - "How do you feel about ____________?" "What are your thoughts concerning _______________?" when sharing with jurors. Such questions will result in narrative-type responses that can fully portray how the jurors think and feel about the case. These type of detailed responses stand in marked contrast to the brief "yes" and "no" answers that reveal little or nothing about the jurors' true attitudes and opinions.

During voir dire questioning the attorney needs to listen for the expression of jurors' all-important value beliefs, the primary clues regarding how they will determine the case. He or she should be alert when jurors use words and phrases such as "must," "should," "ought to," or "everyone" and "anyone." These often are dead giveaways, introducing the jurors' value beliefs, as in "everyone knows that _________," or "the manufacturer should have __________."

What about contamination?

It is important to let prejudiced jurors fully expose their own biases while being questioned. Too often however the attorney will try to shut down a biased juror when he or she speaks to avoid "contaminating" the other jurors. This is exactly the opposite of what should be done. The point of voir dire is to flush out biased jurors so their slanted thinking is unmistakable. Only in this manner can they be intelligently and successfully challenged.[3]

The possibility of other jurors becoming "contaminated" due to the brief expression of bias by a particular juror is remote in the extreme. People do not suddenly alter their lifelong opinions and attitudes due to the chance remarks of others. The reality is that by the time the jurors enter the courtroom they are either "contaminated," or they are not. Voir dire exists to provide a venue in which the attorney can discover and eliminate those jurors who are already "contaminated"; and thus will be unable to judge the case fairly. This cannot be accomplished by guesswork or through stereotypes and other generalizations, but only by letting the jurors speak freely.

Each conversation has a beginning, middle, and end

To achieve an effective voir dire, the attorney needs to keep two key points in mind: 1) Every conversation has a beginning, a middle, and an end; and 2) A conversation that is shut down during voir dire will re-surface again during deliberations. The attorney initiates a conversation each time he or she questions a juror during voir dire. If the juror is prevented during the discussion from speaking about his or her negative and/or biased feelings, be assured that these same feelings will be raised in the jury room later. It's better to let the jurors air their negative beliefs and feelings during voir dire where the attorney still has control, and can do something about them.

Along this line the attorney must not be intimidated by "tort reform" jurors. The chance of receiving uncomfortable answers on such topics as large jury awards is far outweighed by the danger of unknowingly impaneling a bad juror who may poison the case during deliberations.

Getting jurors to open up

Successfully engaging the venire in conversation during voir dire requires a light touch. Jurors are wary and uncomfortable in the courtroom. The trial will be a new, even unique, experience for many. The gravity and importance of the proceedings are almost guaranteed to make the jurors feel ill at ease. How does the attorney deal with these inhibiting circumstances?

Again, the answer is simple and straightforward. The attorney must adopt a friendly and relaxed demeanor with the jurors, treating them almost as VIPs at a social gathering he or she hosts. The attorney should move away from the desk or podium, a barrier to friendly communication; approach the jurors with a smile; and address them from a point of mutual comfort. Eye contact should be maintained in a respectful and non-challenging manner. Body language needs to be open and relaxed. The attorney should be earnest and attentive to all answers provided by jurors, but an associate should take notes. The attorney must never cut jurors off as they speak, and should be sure to thank jurors for their responses, whatever they may be.

This last point is a crucial one. The primary rule of psychology is that reinforcement increases the likelihood of response. If you want someone to do something, you reinforce them when they do. If the attorney wants to ensure that the jurors provide honest answers to questions asked, he or she must reinforce (show appreciation for) all responses, even the negative ones.

Most people enjoy offering their opinions to others but rarely are asked to do so. Jurors are no different. The attorney can capitalize on this common human urging during voir dire. He or she needs to be like Oprah Winfrey or Phil Donahue, treating the venire as honored guests, asking them what they think and feel about the case, and applauding them for the answers they provide.

This style of voir dire stands in stark contrast to the "20 Questions/Job Interview" approach adopted by many attorneys. Consider the effect of these alternative voir dire styles on jurors. One attorney is open and relaxed, permitting the jurors to speak their minds, then complimenting and thanking them when they do. The other attorney treats the jurors as job applicants, lectures them, manipulates them to feel obligated to vote a certain way, barrages them with a salvo of obscure and seemingly pointless questions, demographical and otherwise, then quickly attempts to shut them up when they say something he or she does not like.

Of these two attorneys, whom do you think will create the most favorable impression on the jurors?

Litigation research reveals the best grounds on which to question jurors

I've stressed that jurors should be allowed to provide full answers during voir dire questioning. But what are the best questions to ask? These can be determined most effectively through litigation research - i.e., jury focus groups and jury simulations.

Jury focus groups and jury simulations are used to reliably determine what will be most important to the jurors about the case. They consist of abbreviated versions and/or key aspects of the case, presented to surrogate jurors to gauge their reactions. They are similar to the test-marketing of products in business and of politicians competing for elective office. They allow the attorney to see the case as the jurors will.

Jury focus groups and jury simulations let the attorney know in advance what will be on the minds of jurors, along with what questions they will ask,[4] and what their rationalizations will be, as they deliberate about the case. Armed with this invaluable data, the attorney can design voir dire questions to target jurors whose value beliefs will run counter to his or her case, then deselect on that basis.

Let's say for instance that the case concerns two young teenagers, a brother and sister, who have lost their parents in a wrongful death case. The attorney has employed litigation research to discover the main reasons some jurors may be reluctant to provide the children with a large damages award: 1) Such an award may spoil the children, 2) The children may use the money impractically, and 3) The money may lull the children into a false sense of security so they will not prepare for the future. Additionally, one negative surrogate juror objected emphatically to the children receiving a large award because, "I lost my father when I was a child and didn't get any money, so why should they?"[5]

These negative surrogate juror concerns provide the framework for questions the attorney can use to target members of the venire who may feel in a similar fashion. Consider this voir dire dialogue:

Bingo! Armed with the special insights that only litigation research can provide, the attorney in the example above has been able to "smoke out" this prejudiced juror in such a way that he can be challenged for cause.[6]

As the example illustrates, attorneys should use voir dire to

question jurors on the potential problem areas of the case.[7] This is the best method to determine which jurors will react most negatively towards these problem areas - and thus prove most eligible for deselection.

Numerous advantages

Utilizing a conversational approach during voir dire provides a wide array of valuable benefits for the attorney. These include permitting the attorney to quickly learn how the jurors think and feel about the case; to reliably uncover biased jurors and also to learn which jurors are favorably disposed towards the case; to see how the jurors perform as a group; to spot and evaluate potential jury leaders; and to supply adequate grounds for successful challenges for cause. In short, this conversational approach to voir dire provides the attorney with the information he or she needs to make the most intelligent juror deselection decisions.

Plus, handling voir dire in this manner helps the attorney start off on the right foot with jurors - a crucial advantage. In trials as in life you don't get a second chance to make a good first impression. But you certainly cannot make a good first impression with jurors if your voir dire style is to harangue them and put them on the spot. You can do so, however, if you converse with them as friends.

 

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[1]

Findings from over 5,000 jury focus groups conducted by my firm during the past 17 years indicate that it is value beliefs, far more than any other factor, that most often relate to jury verdict behavior.

[2]

Notice how the attorney makes the juror clearly confirm that her opinion regarding the issue of physician accountability is not likely to change.

[3]

People don't like to see others "get the ax," and jurors are no different. For this reason it is a good idea to exercise your challenges outside of the hearing of the jurors if possible.

[4]

Knowing which questions will be on the minds of jurors gives the attorney real power during the trial. For example, he or she can use the closing argument to answer all such questions in the strongest fashion possible.

[5]

This latter comment is typical of a what I term the "psychocentric" juror - i.e., the type of person who thinks the world revolves around him or her. Psychocentric jurors cannot see beyond their own consequential contingencies and/or circumstances, and thus are unable to empathize with the pain and suffering of others. This type of juror is almost always biased against plaintiffs and should never be impaneled by plaintiffs' attorneys.

[6]

This example is drawn from an actual trial in which I assisted. The judge immediately removed the juror from the panel after he made his remark about the Mercedes-Benz.

[7]

These should also be the primary topics of focus group research. It is the problem areas of the case, after all, that must be examined and solved.