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A version of this article first appeared in Lawyers Weekly USA

Getting Jurors to Deliberate in Front of You

Voir Dire and Deliberations: Flip Sides of the Same Coin

by Dr. Amy Singer

As in life, there is balance in a trial. Both sides in a trial get an equal opportunity to present their case, fully, and without prejudice. For both sides, essential points made during the opening statement must also be hammered home during the closing argument. And direct examination and cross examination present a radical, sometimes almost Yin/Yang, contrast regarding testimony from the same witnesses.

The raison d'ê�tre of a trial is to restore fairness (balance) to a current state of imbalance. So, if the defendant is guilty of the charges, they should be required to pay damages, or to be sentenced according to the law; conversely, the prosecutor or plaintiff should not be able to benefit from a trumped-up charge.

In addition to the trial segments mentioned, there also should be a balance regarding voir dire and jury deliberations. What comes out in deliberations should come out in voir dire, and vice versa. In this regard, voir dire is most effective when the jurors are prompted to engage in pre-deliberation "conversations" concerning the key trial issues, i.e., they "deliberate" almost as they would when sequestered. When voir dire is orchestrated thusly, the comments and opinions jurors express should closely mirror the same comments and opinions they would express during deliberations. Which brings us to the $64,000 question: How can voir dire be organized to accomplish this goal?

Use open-ended, not close-ended, questions

The way not to do it - i.e., not to get jurors to open up during voir dire and thus reveal their true feelings about the key case issues - is to address them with close-ended questions, a common practice among many trial attorneys. These are questions that can only be answered in a few words, and usually only in the affirmative or negative: "Do you have any problems with doctors?" or "Are you familiar with the accident scene?" or "Can you judge this case impartially?"

Close-ended questions promote tightly circumscribed responses from jurors that normally reveal little or nothing about their true attitudes concerning the case. In fact, such questions almost always result in socially acceptable responses that may actually run counter to a juror's true feelings. Further, some close-ended questions often used during voir dire ("Can you be fair?") will be viewed as insulting by many, if not most, jurors.

Instead of using close-ended questions during voir dire, the attorney should address jurors with open-ended questions that permit them to elaborate on their feelings. Such questions target the jurors' basic values and beliefs - generalizations concerning "right" and "wrong" and other primary principles from which people operate - and how these personal standards relate to the case issues at hand.

Open-ended questions usually begin with such phrases as, "What are your feelings about..." or "Please share your thoughts about..." or "Please tell us your opinion about..." Questions usually end with references to actual case issues, e.g., "jury verdicts," "medical malpractice law suits," "people accused of child abuse," and so on.

Voir dire as collective social conversation

The attorney should try to organize voir dire as a collective social conversation in which all the jurors become involved. After asking an individual juror how he or she feels about a particular topic, the attorney should then give the other jurors an opportunity to freely weigh in with their own opinions concerning the subject. Through this interplay, the jurors will, in effect, be deliberating, almost as they would in the jury room. To illustrate, consider the following dialogue, taken from a wrongful death case in which I was involved:

The attorney then polled the remaining jurors and each volunteered his or her view. In some cases, the freely-voiced comments of a particular juror seemed to spark other jurors to be even more expansive in their own comments. By the time the last person spoke, all had agreed that everyone - even lawyers - should be allowed to make a living.

It's important to note that group conversations by jurors during voir dire should not differ substantially from what will take place later during deliberations. And why should they? It is only natural that the basic manner in which jurors relate to specific values and beliefs-type issues during voir dire will be the manner in which they relate to these same issues behind closed doors. It is the attorney's task during voir dire to provide jurors with the opportunity to detail as fully as possible exactly how they feel about the basic issues they will be asked to judge later. The jurors will certainly do so, if given a chance.

Listening: the key to voir dire

In order to pick a jury (or to build an effective trial), the attorney needs to: 1) ask the right type of questions during voir dire, and 2) listen correctly for the right answers, i.e., the ones that frame the jurors' basic values and beliefs. Juror word choices offer the best clues - such words as "should," "must," "could have" and "ought to" are commonly used when basic beliefs are being discussed, along with such phrases as "I feel," or "I think" or "I believe." For example, "Doctors should..." or "People must...." or "The patient could have..." The attorney should be alerted when such words and phrases are being used by jurors during voir dire. They are sure indicators that values and beliefs are being discussed.

What about contamination?

Some attorneys are nervous to use the open-ended question approach during voir dire. They are afraid that opinions freely expressed by one juror may contaminate the others. This is a needless worry. Remember, the attorney should be focusing during voir dire on the jurors' basic values and beliefs, i.e., the primary intellectual/emotional Leitmotif from which all the jurors' other judgments proceed. People's values and beliefs represent primal, personal credos; as such, they are stronger than iron and far less malleable. Psychotherapists often must work with their patients for years to alter these bedrock belief systems, and even then may prove unsuccessful. How extremely unlikely it is, then, that a brief comment made by one juror during voir dire could somehow convince other jurors to amend core values held so dear. The truth is that juror contamination during voir dire is a fantasy, and should not be an element of serious concern for the attorney.

The voir dire payoff

When jurors can be prompted to "deliberate" during voir dire, the attorney will have gained a tremendous advantage. He or she will learn what each juror's basic attitudes are concerning the primary case issues, how these attitudes are likely to be expressed during deliberations, and how the other jurors will relate to them. It will be easier to determine which strong-minded individuals among the panelists may perform as primary shapers of opinion during deliberations. The attorney may even be able to gauge, though in most cases to a far lesser degree, how a juror's opinions (concerning less firmly-held issues than values and beliefs) can be shifted or changed as a result of group discussion. Armed with these invaluable insights, the attorney can then more intelligently select (de-select) the appropriate jurors. Also, he or she can fine-tune the basic trial presentation strategy so as to optimize its effect regarding the dynamics of the actual jury to be seated.

And the result? Combine a carefully selected jury with an improved trial strategy that is both voir dire-refined and juror-specific, and you will be well on your way to courtroom success.