I slightly apologize for starting the relaunch of this blog on a slightly bitter note, but I have just come from a jury selection in a civil case and have bandaged my forehead from banging it on the table. Usually, my favorite Ginsburg is Ruth Bader, but I’m going to dip into Allan on this one:
I saw the best voir dires of my generation destroyed by
badness, wordy cliche opaque,
dragging themselves through the clueless streets at dawn
looking for a frustrated fix.
(To be clear, I’m not referring to my client, but to both lead attorneys for the two parties on the other side.)
Let’s be blunt. Voir dire is the weakest part of most lawyers’ trial game and probably because it’s the scariest for so many reasons. Litigators are control freaks by nature and giving the floor to a bunch of laypeople challenges that; they are jammed with received “wisdom” from many years of what can be most kindly called folklore but is more accurately called oft-repeated crap that has been mistaken as true; and they have misguided priorities about the very purpose of voir dire.
So maybe that’s where to start. Voir dire has the following purposes:
- Getting good quality information to help us make intelligent challenges, both cause and peremptory.
- GETTING good quality information to help us make intelligent challenges, both cause and peremptory.
- Getting GOOD QUALITY information to help us make intelligent challenges, both cause and peremptory.
- Getting good quality information to help us make INTELLIGENT challenges, both cause and peremptory.
- Getting good quality information to help us make intelligent challenges, both CAUSE and PEREMPTORY.
- No, seriously, it’s for GETTING good quality information to make intelligent challenges, both cause and peremptory.
- Developing rapport with the prospective jurors.
- GENTLY laying out some of the issues in the case, by using some of your frames and laying out parts of your damages case within your questions.
Many lawyers think No. 8 is the top, followed by No. 7, and only incidentally about Nos. 1-6. Given that inverted set of priorities, it’s easy to understand why so many lawyers pay no attention to trying to create a safe and inviting environment for laypeople to open up and be a little introspective and talkative about their own inner workings.
So Pro Tip #1: Practice a little empathy for a minute before each jury selection and put yourself in their mindset. The prospective jurors have been called out of their daily lives to come down to an environment that is completely foreign to them while being so familiar to you. You’re a member of the club. Not only do they lack membership in your club, they don’t even WANT this guest membership they are compelled to accept. It’s awkward, weird, illogical, filled with lots of waiting that sure feels like a lot of wasted time (theirs, which is the only time they care about), and rituals that have no inherent meaning to them but which you view with comfort because they are rituals that make sense to you. They want to do a good job – which they haven’t even figured out what that is yet – and they want to listen to you until you make it difficult or unrewarding to listen, but they don’t inherently care about your client or you. Yet. That’s your job. But we’ll get to that.
Pro Tip #2: Actually BECOME INTERESTED in what they have to say. Instead of pushing your agenda (No. 8, above – and if it even crossed your mind that I could have said supra there, then this article is ABSOLUTELY for you), become truly interested in what your panelists have to say. It’s in your interest. I will give you this absolution: there is something about years of training as an advocate that combines with two years of experience with a case and having just come off weeks or months of briefing motions for summary judgment, motions in limine, trial briefs, maybe mediation briefs that makes you naturally only see your side and you want to win your arguments every chance you get—convincing your family, your cat, cab drivers, bartenders. And now you have 90 new captive audience members. I get it. But now’s not the time. Wait just a little longer and knock them out with the opening statement. Meanwhile, rediscover your natural curiosity about people, the curiosity you had before transforming into An Advocate.
Which leads to Pro Tip #3: Talk like real people actually talk to each other. Read that sentence again. Talk like real people actually talk to each other. (I didn’t trust that you would read that sentence again.) This will be hard for 98% of you. If you say “indicated” instead of “said,” knock it off now. If you say, “concur” instead of “agree,” quit it. And if you use the phrase “voir dire” in front of laypeople, you deserve to be tuned out. Talk like a real person.
One of the cliché introductions to voir dire is so awful that I can’t believe it is still used. I’ve personally skewered it in dozens of CLE presentations I’ve given, using it as a punchline. Yet there I was sitting in the courtroom yesterday, watching one of the opposing lawyers give it. If he were my client, I would have tackled him to the ground. So imagine my private joy when the guy stands up and says:
“ ’Voir dire’ is an Old French phrase – most things in law are in Latin, but this is French – and it means ‘to speak the truth.’ And that’s really what you’re here to do today, speak the truth.”
I have a fair amount of first aid training, but I don’t carry ammonia ampules to wake people who are passing out. On behalf of all real people, let me tell you that nobody cares what ‘voir dire’ means, that they never need to hear the phrase in order to know to answer your questions, that you’re showing off your erudition while making yourself look out of touch and boring, that you’re squandering those precious first few moments where their interest in you is at its highest, and that what you’re saying either makes no sense or is faintly insulting and neither of those is good.
Talk like a real person. And if you’re going second, they don’t need to be told that this is the part of the trial where the lawyers ask questions and the panelists do their best to answer. They just did that for an hour for the other guy. I think they grasp the process. Start asking smart questions.
And while we’re on the subject of that guy, Pro Tip #4: Don’t tell them the answers they are supposed to give. Yes, you do this. You probably do it a fair amount. And you undoubtedly do it without realizing it. After boring people with a cliché detour into Old French and legal phrases they never needed to hear in the first place, he continued:
“We are here to get a fairandimpartialjury. We ask you questions not to embarrass you but to make sure that we are getting a fairandimpartialjury. Does everyone here agree that you will be a fairandimpartial juror? [Pause while crickets chirp.] Let the record show that everyone can be a fairandimpartial juror…”
I am not exaggering when I tell you that this guy – THREE times in the next FOUR minutes – asked “Can you all be fair—or rather, can anyone not do that?”
So two things that should be obvious but evidently are not. First: you might have some great questions on your pad in front of you, but if you TELL THEM the answers they are supposed to give, then you’re going to get lousy data back. And I guarantee that this guy yammering on about “we’re looking for people who will be fairandimpartial” had no idea that he was telegraphing the “right” answers and quite literally reshaping the data he should want to get. So quit telling them the way they are supposed to answer. You’re doing it. Probably doing it a bunch. Become aware of when you do that.
Second, as a strategic matter, before that guy even asked one question, he had already cleared the whole panel for cause. By HIS asking whether they can all be “fair and impartial” (a phrase that lawyers should banish from their vocabulary) and then by HIS putting on the record that everyone said they will be, then sight unseen and no matter what horrors he might later discover, the opponent (us!) now has it on the record that they can be fair and impartial. Now, will that dispose of the cause challenge if he makes one? No, probably not. But does it help him that he already pre-cleared them? No, it doesn’t. So don’t do it.
Pro-tip #5: Ask OPEN questions… and no, the questions you think are open are often not open. “Who here has ever had someone mislead you and have it cost you a lot of money?” That is open. It invites people to raise their hand and answer. “Have you ever had someone mislead you and have it cost you a lot of money?” That is a closed question. It closes people down.
Now, there are times for closed questions. For instance, they are the right tool for cementing someone into their answers AT THE END of your questioning this person, AFTER asking lots of open questions and uncovering information that you will want to use to challenge the venireperson for cause. There is a great series of closed questions that will lock them into their bias and be the basis for your successful cause challenge (I’ll go through that in a future article). But until then, open the questions.