Juryology » voir dire

Five Tips For Voir Dire

admin — Sun, 28 May 2006 06:57:00 +0000

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

admin — Mon, 22 May 2006 04:57:00 +0000

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/.