The first concept to remember and keep in mind is that voir dire is incredibly important in plaintiff’s personal injury trial work. It is more important today than it was twenty or thirty years ago. The reason for this is that more jurors are coming into the courtroom with powerful prejudices against plaintiffs and plaintiff’s counsel. Tort reform has changed the way much of the public views law suits. Thus when we go into trial as plaintiff’s attorneys we can expect to have many adversaries in the jury pool. The Defense attorney does not have to contend with this problem. As a result voir dire is incredibly important to plaintiff’s counsel. This means a couple of things. First of all, we need to use all the time we have allotted for voir dire. Do not cut corners on voir dire. The second point is that if you have a court that is reluctant to allow a thorough and complete voir dire process then you may need to fight for this. You can do this by filing pretrial motions requesting that limitations on voir dire be lifted. These limitations are your enemy. Argue your right to have a fair and neutral jury. If you have significant voir dire time restraints then you need to argue that any time savings an abbreviated voir dire offers the court is outweighed by the importance of having a fair jury hear the case. While your motion for voir dire improvements may not always succeed it may succeed some of the time. Your motion can be for more time in voir dire based on the need for a fair jury. You can file a motion to prevent the judge from asking leading rehabilitative questions to jurors. These leading questions which are meant to “rehabilitate” jurors never in fact rehabilitate the juror. The juror will never be equipped to tell the judge that they are unable to be fair or unable to “follow the law”. The juror will always acquiesce to the judge’s demands, despite the alleged question format put to the juror by the judge. When you draft your motion try to make it specific to your particular case. In this way the judge doesn’t have explain to himself or anyone else why he or she doesn’t typically allow for this type of voir dire process. Nor will the judge have to explain why they will not rule the same way in the future. Thus make it appear that your request is particular to your given case.
Voir dire is important because it gives us an opportunity to kick some of these unfavorable jurors from the jury box. However, it has a second important function and that is that it allows us to begin shaping the way in which jurors will view the remainder of the trial. Trial consultant David Ball explains that the term “primacy” is a concept misunderstood by most lawyers. Primacy is thought by many to be defined as meaning that the first thing observed will more likely be remembered than later things observed. David Ball explains that this is a misunderstanding. What primacy really means is that the first thing or concept observed will make a lasting impression on the remainder of what his heard afterwards. Thus after the juror makes an initial interpretation or observation to such extent that the remainder of things observed afterwards will be interpreted these things will be interpreted based on the individuals perception of the first concept. For example, people who are raised in a particular religious belief system will tend to interpret all information going forward as being consistent with that religious belief system. Concepts which are not aligned with that early belief system will be discarded as untrue. Once we understand the importance of primacy we can realize the power of this tool in trial. If we can shape the way the jurors will view the trial early on then the jurors will continue to see the remainder of the trial as consistent with their initial impressions. Thus in voir dire we want to get the jurors thinking about the concepts we want them to embrace.
One of the big concepts we as plaintiff’s lawyers want to get our jurors thinking about early on is this “harms and losses” concept. We want the jurors to be thinking about what we as attorneys call “damages” and what we explain to the jurors to be “harms and losses”. Thus in voir dire we begin the process of asking about each juror’s ability to give money for “harms and losses”. We thus at once are figuring out which jurors are favorable to us and which are not favorable while at the same time using the principle of primacy to craft the way in which jurors will view the rest of the trial. The defense may want the jurors thinking about liability. The defense’s case may be premised on the concept that defendant did not cause the injury. We don’t want the jurors thinking about liability in this context, we want the juror’s minds to be on the level of harms and losses. Thus we begin weaving the harms and losses theme into out trial in voir dire and we don’t stop until closing argument concludes. Trial consultant David Ball believes that you should spend a third to one half of your voir dire on “harms and losses”. Bottom line you want to think about what this juror will say when his wife asks him what the case is about that evening after the juror goes home. If the juror tells his wife that the case is about whether the defendant caused the injury then you haven’t done a sufficient job. If the juror indicates that the case is about how badly the harms and losses to the plaintiff were then you are doing well.
Conducting proper voir dire should be similar to conducting a good deposition. Your goal is to gather information and nothing else. Do not try to persuade the jurors in voir dire. Premature advocacy is your worst enemy. You likely won’t have established any credibility so early on in the case. You are distrusted to begin with so don’t blow it. So when conducting voir dire you want to be asking open ended questions. You want to get jurors talking. The idea is for jurors to be talking more and for you to be talking less. Always use questions such as “which way do you lean” or “which side are you a little closer to”. You ask this after offering the jurors two different viewpoints. In this way you make it easy for jurors to take a position. You point out in your question that some people believe in X and some people believe in Y. In this way you show that both positions are accepted in society. Jurors will be much more likely to take a very mild position such as “which side are you closer to” than a very strong position which may polarize them. Remember that this entire juror experience is foreign to the jurors, they don’t know the other jurors, they don’t know you, and they probably haven’t even thought about the issues you are about to inquire upon. Thus make it easy for them to be responsive by asking softball questions such as “which side are you a little closer to”. As in a deposition you are going to exhaust each line of questioning. So when a juror gives you an answer you are going to inquire further by following up with “tell me more” and “what else?” As you are inquiring you should have your assistant taking notes. Don’t attempt to size jurors up at the same time as you conduct voir dire. That task is simply too tall. So have your assistant taking notes on each juror while you conduct the questioning. Your assistant should be assessing the actual responsive language as well as tone and body language. Some individuals are far more perceptive of people than others. Try to use an assistant who has a good eye for character.
One of, if not the most, important topic in your voir dire is that of tort reform. You need to understand how your jurors feel about lawsuits. So for example you can say, “some people believe there are too many law suits and thus believe there need to be changes to our judiciary system while others believe things are ok. Which side are you a little closer too”? In this way you get people to take a side on this issue which is very important. You can ask about law suits making insurance rates go up and about greedy lawyers and greedy clients all using the same method. Using this method you will see which jurors are tort reformed and which are not. As always, after the juror concludes tell the juror to “please tell me more about that”.
After discussing the tort reform question, you can go on and ask questions about the juror’s ability to give money for medical reimbursement. Most jurors will be ok with giving a plaintiff back money to pay for money that plaintiff incurred for medical bills caused by another person’s actions. The reason you do this line of questioning is that it allows you to segue into the line of questioning regarding jurors giving money for pain and suffering or “harms and losses”. For example, “some people believe it is ok to give money for pain, others won’t give money for pain as they say that money can’t make the pain go way. Which side are you a little closer to?” Do this line of questioning first for medical bills before going on to pain. Of course you will do this for preponderance of the evidence as explained in my other article on that subject as well.
This article was written for my own, Eric Roy, and my staff’s benefit. These concepts come chiefly from David Ball, who is one of the nation’s leading trial consultants. If you wish for a more thorough understanding of the subject matter I suggest you purchase one of his publications. He has written a great deal on the subject. David Ball works with Don Keenan who is also a foremost authority on plaintiff’s trial advocacy and one of, if not, the preeminent plaintiff’s trial lawyer in the country. Don Keenan has also written substantially on these subjects.