Knowing Your Audience in Voire Dire

Knowing Your Audience in Voire Dire

     The Voire Dire process is of huge importance in the plaintiff’s personal injury context.  To this end, you need to push for the most expansive voire dire process available.  Judges have wide discretion as to how to run their courtrooms and as to the process of voire dire within their court rooms.  Given this wide judicial discretion, you as plaintiff’s counsel, need to be pushing your judge hard for an expansive voire dire process.  Oral motion alone will usually not be sufficient.  Thus you need to be putting on written motions well in advance of trial explaining to the court why you need the most expansive voire dire process available.  When you make this request try to tailor your request to the needs of your specific case.  In this way the judge can open the door for you without opening the flood gates to all future trial litigants. 

     As a fundamental principle, know that you will not change juror perspectives or attitudes in voire dire.  Thus voire dire is not a time for you to persuade potential jurors.  Any attempt to persuade at this point will be counter-productive as you, as plaintiff’s counsel, have zero credibility at this stage in trial.  This is a time for us to feel out our audience and to learn about the various attitudes and personality traits of our prospective jurors.  Juror attitudes are of particular importance to us as trial lawyers.  The reason why we need to understand our juror’s attitudes is that attitudes can’t easily be changed or modified.  Thus if we end up with a juror on our panel with an attitude which is adverse to our client’s interests then our case can be devastated by that one juror alone.  Research tells us that no amount of persuasion in the trial process alone will be sufficient to change a juror’s attitude during trial.  Thus, it is critical that we determine what attitudes exist so that we can remove jurors who possess attitudes contrary to our client’s interests prior to trial.  Jurors’ attitudes are formed based on juror life experiences. 

     Given the fact that attitudes are formed from juror prior experiences, a good place for us to start our questioning process is by asking jurors about prior life experiences.  Thus we can ask about life experiences which are relevant to facts or issues in our case.  So if you are handling a basic auto accident case you could begin by asking jurors if they have ever been in a car accident.  Once hands go up you need to be prodding each juror further by asking open ended questions.  For example, “how did that make you feel”, “please tell me more”, and “go on”.  Just as you would in deposition questioning, ask open ended questions until you exhaust the witness’s knowledge on the subject.  Rarely will you get any relevant information in your first question.  The good information always comes later down in your line of questioning when the witness begins to tell you about how the experience made him or her feel.  This is his or her attitude she is telling you about.  Once you have determined the juror’s attitude you have obtained a piece of vital information.  Legendary jury and trial consultant David Ball suggests we finish our line of questioning by asking how this juror’s attitude might affect the juror in this case.  You can begin by asking how the juror’s life experience might help the juror in this case and then follow that line of questioning up by asking how what happened to the juror might make it harder for the juror in this case. 

     David Ball also makes it a point to teach us that we should differentiate between attitudes and what he calls “softer biases”.  Softer biases are less concrete than attitudes.  They are more transient in nature, more like temporary moods that the juror is currently feeling.  A soft bias might be caused by something the juror saw on the news last night as opposed to an incident which occurred in childhood which the juror still hangs onto which would create an attitude.  It is critical that you be able to differentiate soft bias from attitude.  You may be able to change a soft bias in trial but you will not likely be able to change an attitude.  If you determine that the juror has a soft bias which could hurt your case then you need to determine if your case contains evidence which might persuade this individual to overcome this soft bias.  If not, then you need to think about removing the juror as you will if the juror possesses an adverse attitude.    

     In our society, it is normal for us to make assumptions about a way a person thinks given that person’s demographic data.  It is just as easy to get lured into this same type of thinking in evaluating potential jurors in the voire dire process.  However, this is a bad idea.  Although there may be some correlation between certain demographics and a person’s way of thinking, those correlations aren’t strong enough to rely on for jury selection processes.  The reason that some trial lawyers rely on that data is simply that such data is easier to identify than attitudes.  We can easily determine things like race, gender, and religion without much if any inquiry in voire dire.  Thus it is tempting to rely on that type of data for decision making purposes.  Generally speaking, with a couple exceptions, don’t rely on demographic data in voire dire, as it is not sufficiently telling. 

     Given this information, we know that we need to begin our voire dire process by identifying the most important issues in our case.  We should make a list of what these issues are.  We then can make another list of the various attitudes which might affect how jurors respond to these issues.  Then make another list of possible life experiences which could result in those types of attitudes.  You can then create questions designed to determine who has experienced the type of life experiences you have listed.  It is a good idea to write all of these lists out in outline form, especially the first few times you do a voire dire for a specific type of case. 

     The voice dire process can be a trying process for both counsel and for the jurors.  Jurors at this stage in the trial process are just settling in and thus they are often quite nervous as many have never been through this process before.  As a result, it can be difficult to get your jurors talking.  It can be particularly difficult to get some jurors to voice opinions which they may believe are inconsistent with yours.  Most people refrain from taking adversarial positions if they can.  As a consequence, you need to do all that you can to make these jurors feel comfortable speaking up and voicing their opinions.  A good technique for accomplishing this goal is the “some people believe” technique.  Essentially, what you will do here is tell the jurors that some people believe X and some people believe Y.  Then ask each juror which side they are a little closer to.  By using this technique you let the jurors know that both beliefs are acceptable.  This technique also is great because it doesn’t require the juror to take a polarized stance.  Once the juror says which direction they lean towards you can then follow up by further questioning such as “tell me a little more about that”.  Eventually you will exhaust the juror’s feelings on the subject matter.  To ease the jurors even further tell the juror that your own mother holds certain beliefs (the beliefs that you want to inquire about).  Then see if anyone shares the same beliefs as your mother.  This will lower your jurors’ guards so that the jurors will feel comfortable speaking their minds on the subject. 

     Another smart technique for voir dire purposes is to get the jurors deliberating with each other.  To do this you will begin an inquiry with one select juror.  Ask this juror about a specific experience and an attitude which may have been created from this experience.  Then after your juror tells you of his experience and resulting attitude you can go on and directly ask another juror if they have or don’t have this same attitude or opinion.  More importantly follow up by asking the juror why they do or do not share this attitude or opinion.  In this way you can open up a conversation amongst the jurors where they all express their respective attitudes on a particular subject.  This is useful as it tells you what each juror’s attitude is which is critical to knowing who will give you a winning verdict.  The other added benefit which results from using this technique is that you can see how the jurors interact with one another.  By observing juror interaction you will be able to tell who the leaders and followers are amongst the group.  Leaders are exceptionally powerful in final jury deliberations.  Thus you need to always be on the lookout for these leaders.  If you see that two or more jurors strongly disagree with each other then you know that the likelihood of a unanimous verdict with both these individuals on the panel will be small. 

     If you wish to obtain a thorough understanding of this material I suggest you read any of David Ball’s many publications on the subject.  David Ball is brilliant to say the least.  He has a deep understanding of human psychology.  He is an outstanding jury and trial consultant.  Most of my information on the subject, along with the material here, comes from his brilliant mind.  I have attended many of his lectures and I have read many of his publications which are all rather amazing.