Five Tips For Voir Dire

This blog will have lots of material on voir dire, but here are some things that I happen to have been discussing with clients in the last couple of weeks.

1. Be more likeable. This is for lots of reasons, starting with the fact that trust tracks likeability. People trust who they like. While you are picking a jury, they are picking a lawyer.

Another key reason to be more likeable is that you need these uncomfortable and inconvenienced folks to open up to you about some occasionally sensitive, personal stuff. And asking them to do it under oath in front of a bunch of cranky strangers. They'll do it more easily if you are appropriately warm and inviting.

Sometimes, lawyers ask me "How does one become more likeable?" And I suppress the urge to scream, "Ah ha! You are making my point!" But part of that answer is...

2. Be more curious. Not just act more curious about people, their lives, their experiences, their mental processes, their quirks, their filters, their biases, their tastes... but actually BE more curious.

3. Hear yourself as you really talk & sound-- hire some strangers if necessary. Two suggestions here. One, get an unobstrusive recorder and use it during your next voir dire. Do you sound open and inviting? Do you sound like you are trying to suggest answers? What do you sound like and what notes do you have for yourself?

Second, if you are uncomfortable with voir dire and consider jury questioning to be a weak part of your game, hire a handful of temps from a temp agency for 2 hours and do a mock voir dire at your office. (This is the ONLY time you will hear me recommend hiring citizens from a temp agency! Please don't use temps in your focus groups unless you don't care that you are hiring people who are uniformly highly unlikely to be able to serve as jurors, and further, are alike in other ways that will skew your research. But they are great for certain narrowly defined purposes, and this is sure one of them.) Just talk to them. Stand in front of them and ask questions. Ask OPEN questions. Record this session and then listen to yourself. Do you find yourself annoying? Warm? Welcoming? Off-putting? Approachable? Too enamored of legal prolixity? Saying 'ambulating' instead of 'walking'? Saying 'damages' instead of 'harms' (if plaintiff)? Best few hundred bucks you can spend.

3. Disclose something about yourself early. As discussed in the previous post about voir dire conducted by lawyers (yay!) or judges (um, well, thanks, Your Honor), all research on eliciting honest answers from strangers shows that it works better if the questioner discloses something about himself or herself first. So be ready with your standard intro pitch, whatever it might be. It can be anything from "I'm worried about how to go about asking some of these questions, folks" to an elaboration on "None of us are the right juror for every case. Take me, for example. I could do fine as a juror on lots of cases, but boy, if there were a case with allegations of animal abuse or mistreatment, I couldn't do it. I'd be a terrible juror. I couldn't hang in there and listen and do my sworn duty as a juror and keep an open mind and really process the evidence. Flat. Out. Couldn't. Do. It. So we are all here to find out who in this group would be great for this trial and who might be better on other trials. I'm the first to tell you: I would be terrible on some trials, and that's probably true of all of us."

4. Three questions. There probably aren't more than three things your jurors have to believe in order to hold in your favor. So let's get right to those things. No proxies, like what bumper stickers they have on their car or who their heroes are (not that those aren't telling in some ways, but, really, what am I supposed to DO with those answers when I'm sitting at the table in the courtroom and everyone's looking at me and waiting for my next challenge?) In an employment case, get to your point: "What are your thoughts about whether there is a glass ceiling in business, and what kind of things would you want to look at to decide if there is one?" Get right to it.

5. Master a process for cementing cause challenges. A future post will focus just on eliciting answers to support cause challenges, but be mindful of this. GETTING answers that show bias or prejudice are not enough! We have to get an answer that reveals bias, AND that this is a view that is unlikely to change, AND that it has been held for awhile. And we have to ask a sequence of questions that will get this information in such a way that the judge can't just sprinkle the Magic Borax of Citizen Attiutudinal Hygiene that would wash away the taint: "Nevertheless, Mr./Ms. Juror, you would put that aside and follow the law and the instructions I give you, wouldn't you?" (As my dear friend and colleague, Richard Gabriel, says, "To where do judges expect jurors to put their feelings aside? They are in your mind and aren't going to leave. If you put them from one part of your mind to another part of your mind - assuming that's even possible - it's still in your mind.")

Too often, we see lawyers get some information that could probably be developed into a solid cause challenge, only to fail to ask those final couple of questions that really get the person to commit to their belief/attitude, admit that it's not going to change, say that it has been held for a long time, and say that there are better cases in the courthouse for them to serve upon. (Gratifying personal/professional moment: in picking a jury in Ohio last December, my client used my "couldn't serve on a trial where there are allegations of animal abuse" speech. The suit alleged failure to diagnose breast cancer. After dozens of people had been questioned and the day dragged on, one prospective juror talked about her husband being a surgeon who had been sued for malpractice for no legitimate reason. Finally, without prompting, she said, "Maybe this is my animal abuse case, you know?")

Bonus Tip #6. Whatever it takes, don't have anything in your hands when you are questioning the potential jurors. Have someone take notes for you; write a note to yourself to remind you not to hold your pen (which, if it's fancy, you shouldn't have in the courtroom at all); dip your hands in Vaseline before the call to order. Whatever it takes, hold nothing in your hands. It's distracting to jurors and it gets in the way of your doing what you must: focus just on them and relate to them.

Judge-Conducted Voir Dire: Jurors Less Candid Than When Attorneys Conduct Voir Dire

Let's stipulate that the whole point of voir dire is to elicit honest, candid responses on issues that bear on the case, so that lawyers can exercise challenges effectively. If we aren't getting the most candid responses from jurors, then the point is thwarted, and the whole exercise is rendered useless, and fairness suffers.

Well, it turns out that in the modern world of increasing judge-conducted voir dire, that is exactly what's happening. When judges conduct voir dire, prospective jurors are TWICE as likely to change their answers to please the questioner than when attorneys do the voir dire. TWICE. It's not because judges are not necessarily skillful at conducting the voir dire-- some are and some aren't, just like lawyers. Rather, a study showed that it's because jurors are more inclined to alter their answers to conform to their perceptions of the judge's standards than they were inclined to alter their answers for attorneys. (The cite for the article is at the end of this post; though it's from 1987, there is no reason to think that the psychological mechanisms of this phenomenon aren't still good; humans haven't evolved much (nor been more intelligently designed, if you prefer) in the intervening years.)

The study actually tested two things: (1) effects of whether the attorney or the judge does the voir dire, and (2) style of the questioner, no matter which person does the questioning.

We can dispense with the second one quickly: To the surprise of nobody, a warmer style elicits more honest disclosure from jurors, ESPECIALLY WHEN ACCOMPANIED BY AN APPROPRIATE AMOUNT OF SELF-DISCLOSURE FROM THE QUESTIONER. Obviously, lawyers shouldn't be doing an impromptu 'Oprah' show in which they divulge everything about themselves, but it's critical that the questioner disclose something about his or her background, life, values, beliefs, thoughts about the legal system, SOMEthing. (Note for later: Who doesn't do this when conducting voir dire? Yep. Judges. But we'll see that it wouldn't matter if they did; the robe still gets in the way of honest disclosure from laypeople.)

It's also worth noting that attorneys actually have an interest in putting forth effort to be warm and engaging with jurors, as they are trying to become more liked by them for strategic reasons. That right there puts lawyers in a better position to elicit honest disclosure from jurors than are judges.

But the first part of the question -- which party gets more truth/conformity -- turns out to be at least as powerful in affecting jurors' forthrightness.

Methodology: Researchers hired a bunch of jury-eligible folks to come to the courthouse, gave them questionnaires, and had actors play the lawyers and judge. They conducted eight voir dires (or as I call that, a fun weekend). The participants filled out part of the questionnaire, then either the judge or the attorney would conduct the voir dire, then an interruption would be invented (e.g., judge got an emergency phone call) so that participants would fill in more of the questionnaire. After that break, the questioner would return, and other conditions might be changed (such as the interpersonal level of the questioner). The written answers were compared with the verbal answers, and then the differences were compared with differences observed with different types of questioners. (The formal methodology in the study is discussed in the article cited at the end of the post, and I am simplifying it greatly... for MY benefit!) Participants found the setting highly realistic; they thought the judges and attorneys were authentic.

Results: So it turns out that jurors were more consistent with their attitude reports (the written stuff) when questioned by attorneys. As indicated at the outset, they were twice as likely to change their answers when questioned by a judge. And please do note: according to the researchers, in NO case were judges more effective than attorneys. This is important to note because there is a widely held belief that judge-conducted voir dire elicits greater candor from jurors than when lawyers do their voir dire. Demonstrably untrue-- again, not because judges aren't skilled and fine people, but that damn robe and high seat...

Jurors were most honest when it was the attorney doing the questioning, and doing so in a personal manner. Next most honest was attorney questioning in a formal manner. Note that even with a judge questioning in a personal manner, it elicits less candor than the attorney acting all stiff-like. And let's face it: when was the last time you saw a judge conduct voir dire in a way that approaches warm and personable?

Again, I'm not criticizing judges' questioning skills or intentions in conducting voir dire. However, one of the reasons given for increasing judge-conducted voir dire is that it gets more honest responses out of the venirepersons. This is demonstrably false. Judge-conducted voir dire saves time for reasons that are mostly just maddening to people who really understand bias. But if we all agree that the point of voir dire is to get candid input from jurors in order to assess their probable ability to serve fairly on THIS case, then we should all agree that proveably inferior methods of achieving that should be abandoned.

If you have a judge that insists on doing all voir dire, the cited article could serve as a basis for a motion to permit at least some attorney-conducted voir dire... and the rationale would not be a slight to the judge's skills, but a recognition of the effects of being the one person in the room in a black robe and elevated desk. "Your Honor, it's not that we don't think you would be an incisive and moving interviewer. Lordy, no. It's actually that you are TOO much of a legal hottie, that everyone wants to please you. It's not your fault you are so magnetic, Your Honor..."

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Source: "Judge- Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor" by Susan E. Jones, Journal of Law & Human Behavior, Vol. 11, No. 2 (1987). Law & Human Behavior is the bimonthly journal for the American Psychology-Law Society, a division of the American Psychological Association. Lawyers can join the AP-LS and receive the journal; best 60 bucks you'll spend this year. I find that it leans somewhat more toward criminal work, but there is a great deal of useful research for civil practitioners. For more information and for (paid) access to journal archives, see http://www.ap-ls.org/.

Framing: Use Built-in Value Systems; Don't Fight the Forsaken Factual Fight

Facts don't persuade.

Sorry, but they don't. I have counseled Fortune 100 companies in their sales negotiations, and salespeople often think that if they just told the prospective customer more features and functions (i.e., facts), then the prospect would have an epiphany and see things Our Way, and be persuaded to buy.

It doesn't work. It doesn't work in trying cases to juries, either. (For that matter, facts don't persuade your opponent to settle closer to your figure, but we'll come to that.) Why?

In negotiation, people make decisions on whether to agree to a deal with the other side for one reason exactly: perceived value. Yes, I perceive this as a valuable outcome, so I will agree; or, No, I don't see this as valuable, so I will not agree. "Value" is an amalgam of subjective factors, mainly a feeling of satisfaction of needs that the deal will provide, which needs would go unsatisfied in the absence of said deal. (Sometime when we are having drinks, I'll give you my spiel that There Is No Such Thing As Objective Value, that All Value Is Subjective. But please take that as read for the moment.)

As is widely discussed in political circles, George Lakoff, the Berkeley linguist, published Don't Think of An Elephant: Know Your Values and Frame the Debate in 2004, calling it, "The Essential Guide for Progressives." Lakoff makes some important points about the hard-wired psychological structures we all have and with which we adopt/reject ideas. And what he says has great import for both sides in a jury trial.

First, the definitions. Frames are part of our "cognitive unconscious," as Lakoff explains; they are "mental structures that shape how we see the world." He points out that "All words are defined relative to conceptual frames. When you hear a word, its frame (or collection of frames) is activated in your brain." Examples:

* The phrase "tax relief," used routinely by Republicans, implies that taxes are an affliction. "Tax reduction" is objectively the same thing, but it does not tap into the frame of affliction, and specifically the frame that afflictions should be relieved. A different frame might position taxes as "investments in future economic strength" or "the fees for living in a high standard of living with great infrastructure." But to tap into the frame of afflictions (which, of course, cry out for relief) accomplishes what proponents of "tax relief" want: lower taxes, for a host of reasons having little to do with "relief." So the casual use of the phrase "tax relief" accomplishes in two words what endless recitation of supposed facts could not: getting people to start feeling favorably about what you want. You are tapping into their worldview that afflictions should be relieved.

* In the 2004 State of the Union address, as Lakoff points out, President Bush said, "We do not need a permission slip to defend America." (Italics added.) The phrase "permission slip" immediately taps into an adult-child mindset, and of course we don't fancy ourselves the child in that frame, so that must mean we are the adult. Of course, nobody was suggesting that the United States of America needs anyone's permission before acting in what it perceives to be its self-interest. But invoking this adult-child frame gets people unconsciously chafing at functioning with the United Nations to investigate threats and contain them if found.


"Framing is about getting language that fits your worldview [or "caseview," for our purposes]. ... People think in frames. ... To be accepted, the truth must fit people's frames. If the facts do not fit a frame, the frame stays and the facts bounce off. Why?

"Neuroscience tells us that each of the concepts we have - the long-term concepts that structure how we think - is instantiated in the synapses of our brains. Concepts are not things that can be changed by someone telling us a fact." (Pp. 3, 17, emphasis added.)

Then Lakoff says something that is also relevant to our purposes: "We may be presented with facts, but for us to make sense of them, they have to fit what is already in the synapses of the brain. Otherwise, facts go in and they go right back out. They are not heard, or they are not accepted as facts, or they mystify us..." (P. 17.)

We have all had this experience in court. For that matter, we more frequently have had this experience at the negotiation table with opposing counsel and even occasionally with our own clients. We tell the jury/opposing lawyer/client all the relevant case facts, and arrange these facts so logically that Aristotle would say "boy howdy." (Bad example; he probably said that often.) Doesn't persuade. It's what I call the I'm Obviously Right So Why Aren't I Getting What I Want paradox. Damn that paradox.

So we have to be more conscious of framing our cases in ways that tap into pre-existing mental structures. The adult-child frame is one such frame; it speaks of who gets to make decisions, freedom, responsibility, power, beholdenness, protection. Think of a case you have (or have had) in which you might want to use any of these constructs. A franchisee-franchisor dispute? A contract dispute? Commerical case?

"Friends" is a frame. It speaks of expectations of loyalty, maybe genuine concern, duty, expectations of understanding.

Likewise the frame of "The Handshake," which invokes the personal obligation, the sacred commitment to the contract, the putting of ones honor at stake. You know, all that "my word is my bond" stuff.

But as Lakoff points out, ideas come first. THEN language. And if the language isn't coming to you, that's a signal that the idea hasn't really formed yet. So it's not about coming up with the one magic theme; it's about conceiving of our cases in ways that tap into folks' unconscious mental structures, then finding the language to convey that.

I'm for anything that gets us away from the old model of providing volumes of facts to jurors, as if pouring our facts into juror heads would - presto! - make them see the world just as we do. The first wave of getting away from that was the school of themes, which said that you must compose a short phrase that summarizes your facts (e.g., "This is the story of a dream that became a nightmare.") This was an improvement, as far as it went. But developing and using themes hasn't been taught very well, and the result is themes that are mediocre (e.g., "This is the story of a dream that became a nightmare"), often focus on the wrong thing (namely, the conduct of one's own client rather than the other side, such as the dream-turned-nightmare thing), and that only one theme is enough. (A future post will deal with themes. They ARE important.)

But it could be that the next wave for lawyers is figuring out framing and metaphor and really touching these built-in mental structures jurors all have. And not just appealing to those underlying schema to be manipulative, but recognizing that we MUST present our cases in recognition of these structures, or else not be as successful as we could be if our concept of the case were different. As I point out a lot, one of the few biggest jury verdicts in history was Exxon v. Texaco, which took a year and several hundred witnesses to put on. The entire case came down to this sentence put forth by the plaintiff: "What does a handshake mean anymore?" That's more than a theme; that's a frame because it touches a whole pre-existing set of beliefs about right conduct. We have to get there in our own practices.

For more articles and applications of framing on public issues, see Lakoff's website, http://www.rockridgeinstitute.org. I recommend it to all lawyers who practice in front of juries to develop these crucial framing skills. I recommend Don't Think of An Elephant only to people who are interested in politics, as that is the book's only focus. However, I have recently purchased Lakoff's Metaphors We Live By, as metaphors are directly relevant to powerful and effective case presentation; I'll discuss it in future posts.

Beware the Potential Juror Who Is Similar to Your Client

It happens periodically: there is someone in the venire who has key similarities to your client. You might be representing the plaintiff who lost a leg in a workplace injury, or a corporate defendant being sued for breach of contract and fraud. And we have all felt that tug on our consciousness: "Cool! This person will understand my client; this person will sympathize with my client; this person will get our story." And, of course, we have all watched what happens. It's not pretty.

So the rule of practice is that if you can avoid it, stay away from potential jurors who are too much like your client or have had experiences similar to your client's experience in whatever gave rise to the suit. Many lawyers have already figured this out, but many others still say, "Alright! This person lost a leg at work, just like my client!" That person will probably kill your client in deliberations.

Part of the reason for that is the Fundamental Attribution Error, which holds that people tend to attribute conduct to the other person's character rather than to circumstances... even though circumstances explain it perfectly, and even though we tend to view our own behavior as driven by circumstances. Examples: He is disorganized; I've been asked to do too much at once. He's lazy; I'm conserving my time and energy for something else. He's dangerous; I have received conflicting signals from management about safety versus speed of operations. Thus, someone on the panel who is similar to your client will automatically jump to thinking, "Hey, you were a reckless idiot; I was truly victimized by circumstances." And this is true whether they are similar to your plaintiff client or defendant client. ("I would never, ever, ever get a 12b-5 filing wrong, because I am careful and alert. You, by logical deduction, must not be careful or alert.")

Another reason the similar juror will kill your client is what might be called False Normalization, the unconscious process by which our own experience becomes the norm by which we gauge everyone else's. One deadly example for the hypothetical plaintiff with a broken leg: "You only broke your leg in one place; MY leg was broken in TWO places, so yours isn't so bad." Or, "When I suffered MY injury, my medical care and rehab was just fine; so if you are still having problems, it must be something unusual about you."

A final reason worth mentioning is the phenomenon of the Self-Professed "Expert" in the Deliberation Room. Anyone with some life experience that is even remotely connected to the events of the case (and you might be shocked/horrified at just how remote) will likely become the jury's in-house expert on that topic. And this will likely kill your client. This person will announce authoritatively How Rehab Works (you can almost hear the capital letters highlighting their authority), or How Corporate Recordkeeping Works, or How Insurance/WorkComp Works, or How Police Use of Force Really Works, and on and on. This would be great if this person could be counted upon to be correct, but that almost never happens. They are reporting their experience, idiosyncratic as it might be, and sincerely believing that that's the norm. In any case, it almost never helps your client.

So what to do? GET AGGRESSIVE ABOUT DEVELOPING CAUSE CHALLENGES! There is a choregraphy to coaxing out responses that will show that this person holds views and opinions based on their experiences that will be unfairly prejudicial. I'll cover this more later in some posting to this blog, but it's something our firm is quite committed to-- preserving peremptories by pursuing cause challenges effectively and fearlessly. And frequently.

Still, if you've tried your best at cementing a cause challenge and the judge still doesn't grant it, then consider spending a peremptory. Of course, whether to strike the person is driven by many factors that dictate whether this person's harsh judgmentalism toward your client or his or her faux "expertise" is a bigger risk to you than leaving on someone else whom you might otherwise excuse. There might be reasons that someone else is worse for you and you don't have enough bullets left to dismiss the really horrible jurors. But consider similarity to your client as a pretty bad factor, likely worth kicking that juror off unless you simply cannot.