You often don’t have enough time to identify every bad juror, but that doesn’t mean your voir dire cannot be effective
Some people think a trial is won during opening statement. It is more likely won during voir dire, when jurors get their first impression of counsel and the case. The following strategies are designed to ensure that jurors will perceive you, your client and your case favorably during voir dire.
Engage each juror in conversation
In many cases today counsel has little time to voir dire, making it difficult to discover a juror’s potential biases. You can use the time you have to educate the jurors about the issues or you can try to establish rapport with each juror by engaging in a little small talk. The former might be easier, but the latter can be more valuable.
During this interaction, give the juror your undivided attention. Keep eye contact; do not look at notes. The visual attention you give your juror allows you to touch him/her in a meaningful way, changing the interaction from one of a cross-examination to a conversation. Get the juror to do most of the talking. Use language that jurors can easily understand, not legalese.
Try to be sincerely interested in who this person is, rather than focus solely on the implications of what he is saying, or whether he fits your juror profile. You can find out a great deal about a person while chatting about his job, family, where he comes from, what school he attended, how long he has lived in the area. Have someone else in the courtroom who can help you process the information later. Use those precious minutes to show your interest and make a connection.
By giving the juror your undivided attention, the other jurors perceive you as polite and respectful. Jurors like attorneys who are polite and respectful. After you have finished questioning a juror, before moving to the next, take time to say “thank you.”
Getting the bad jurors off
When you identify a juror that is bad for your case, the goal is to have her removed for cause, rather than use a peremptory challenge. Do not argue with the juror, but praise and thank her for her honesty when she says she thinks lawsuits are a jackpot for the plaintiff. Tell her that it is important that she speak up, so that she won’t end up on a case that is not right for her. Then ask who else agrees with her. Get it all out – all the negative views about lawsuits, lawyers, the issues in the case. Send the message that the honest answers are the ones you want.
Don’t tell the jury that you are looking for fair and impartial jurors. It tells them that their answers should sound that way, rather than their feelings. Tell them what we want is honest and open jurors.
Use magic language such as, “So the plaintiff starts behind in this case?” or “You start with a leaning toward the defense?” Tell her it is okay to express her feelings. Reflect back a statement, such as, “So you feel that giving money damages is wrong?” It generally leads to more explanation or at least a clear “yes.”
Establish the theme, inspire the jury to care
From the first moment you speak to the jury, you must establish the theme and your theory of accountability. Engage the jury with a statement (20 words or less) that states the case using the theme. Some ideas for themes:
• Personal responsibility
• Consumer protection case (product liability case)
• “A deal is a deal”
• Broken Dreams
• Broken Promises
• Violation of Public Trust
• An unnecessary surgery
• David vs. Goliath
• A lane change that caused a life change
• Profit before people
• The car that had every option except safety
• Time bomb waiting to go off
• Preventable brain damage Make the case bigger than the plaintiff
If the jury feels the issues to be decided are bigger than this case, they may be more willing to award full compensation. Tell them this is an important case. For example, in a sexual harassment case, the case is bigger than just this one woman, it is about how all women are treated in the workplace. In a product case, what is at stake is more than this one man injured on the job by this dangerous product, but all workers similarly situated that are entitled to safety. In a case against a corporation, the bigger issue might be how we expect our corporate citizens to behave and what safety standards we expect in our community.
Use a questionnaire
A questionnaire can give you more information about a juror than voir dire in open court. Jurors will write things that they might be uncomfortable saying in front of others. The questionnaire also saves time on basic questions about their work, family, beliefs, etc. It can establish potential hardship and challenges for cause. For example, a juror may write that she cannot give money damages for wrongful death, for which the judge would dismiss the juror on those grounds. Carefully craft the questionnaire to deal with key liability issues and damages. Include questions on how the juror feels about lawsuits and those who bring them. Send the questionnaire to the defense before the trial date to work out any issues. To encourage the judge to use the questionnaire, be prepared to handle copying of the questionnaires for both sides.
[Editor’s note: This essay was originally presented at the CAALA Annual Convention in 2014.]
Mary E. Alexander, M.P.H., J.D. is the principal of Mary Alexander and Associates, P.C. in San Francisco, specializing in personal injury, products liability and business litigation. In June 2012, she was inducted into the Trial Lawyer Hall of Fame of the California State Bar Litigation Section. Last year, AAJ presented her with the Leonard Ring Champion of Justice Award for her continued dedication to human and civil rights. She has been repeatedly named one of the “Top 10 Trial Attorneys” in the Bay Area by the San Francisco Chronicle. The California Daily Journal named her one of the Top 100 Most Influential Lawyers in California as well as one of the Top 50 Women Litigators. She has been named a Northern California Super Lawyer each year since 2006. Member: American Association for Justice (President, 2003); Consumer Attorneys of California (President, 1996); American Board of Trial Advocates; College of Master Advocates & Barristers (Senior Counsel); National Crime Victim Bar Association (President, 2012). She obtained her JD and Honorary Doctor of Laws from University of Santa Clara in 1982 and 2003, respectively, and Master of Public Health from U.C. Berkeley in 1975.
Copyright © 2021 by the author.
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