Job Number One of any lawyer conducting voir dire is lowering the barriers to communication. What are the barriers that jurors might have to opening up to you?
- Being in an unfamiliar building and room, but more powerfully, being in an unfamiliar system.
- Seeing that there is a formal and strange process for everything but having no idea why things are the way they are.
- Distrust of your and your opposing counsel’s intentions.
- Preoccupation with their actual lives, the things that really matter to them.
- Nervousness about having to speak about themselves in front of a group of strangers.
- There is someone in a suit standing in front of them, asking strange questions.
- … Or asking invasive questions.
- … Or asking questions with words and sentence structure that makes it hard to understand quickly.
- … And if I don’t get it quickly, I am not going to put the work into parsing out your question when it was YOUR job to ask clear questions.
It is YOUR job to lower the barriers to communication, not the venireperson’s job. It all starts with the right mentality.
Intention: Lowering Barriers to Communication Starts With The Right Mindset
If I could wave a magic wand and change only a couple of things about lawyers who try cases to juries, one of them would surely be: Recapture your general curiosity about people, the world, how things work, pretty much everything that made you interesting before you went to law school. Law school trains and rewards Knowing Things so intensely and with such coal-dust-into-a-diamond pressure that after a few years of that, we have forgotten that it is not only permissible but it is often wonderfully valuable that we acknowledge and embrace that we do not know something. Enjoy it, even.
Voir dire is a time to enjoy not knowing things about the prospective jurors and to be genuinely curious about finding out their attitudes and experiences that bear on your case. The rest of the trial is the time to have fun with Knowing Things.
With this freshly rediscovered curiosity and sincere desire to lower laypeoples’ barriers to opening up to you, you can see all the clichés that you have seen (and possibly committed) which are counterproductive. They come from either things that the lawyer meant to do but was a lousy idea to start with, or things that the lawyer had the right idea about but executed badly—often completely unaware of how badly the reality of the attempt was as opposed to how they think it went in their head.
But if you would go into jury selection with the intention of making the prospectives more comfortable and more willing to talk, and you have the intention to ask open questions and listen to the answers, and not to lecture or debate – and in the name of all that is holy or good in the world, not to correct their incorrect statements about the facts or the law – then you are half way to lowering the barriers to conversation and getting that good actionable information.
Parade of Horribles
And what are some of the awful clichés I mentioned? I’ve mentioned a few in prior posts (click on the tags at the bottom of the post to pull up other posts with the same topics). How many of these have you seen in courtrooms?
- “Does anyone here have a problem with…?” If you want to guarantee that you will miss a lot of salient information about how people feel about your critical case issues, ask if they have “a problem.” This question silences more crowds than a Pauly Shore movie, yet lawyers keep doing it. Why? Because (a) they’ve seen lots of other lawyers do it, so they think it’s fine, and (b) they have not tuned into the lousy quantity and quality of data that the word provides. Sometimes reverence for precedent is a character flaw, not a professional virtue. Think of it this way: you are representing the plaintiff suing a manufacturer for product liability, and I’m a “tort reform” supporter.
Attorney: Does anyone here have a problem awarding large money damages, like even as much as five million dollars?
Me: [thinking in my head, because there’s no way I’m going to speak up in front of strangers to that question] Do I have a “problem” with that? No, buddy, I don’t have a “problem” with that—I have a core goddamn belief that that’s bad for society. Weeds are a problem. Big verdicts, on the other hand, are ruining our country.
Think the attorney might have liked to know those beliefs? Indeed, that right there would be a better question: “Who here has any beliefs about big dollar verdicts? [Pause] You, Ma’am? Looked like you were thinking something. Tell us what you think.”
Or this example:
Defense Attorney: Does anyone here have a problem with how health care is administered in City Hospital?
Me: [Thinking in my head, because, again, nothing about that question made me feel like overcoming my reluctance + inertia to speak up] No, pal, I don’t have a “problem.” City Hospital has the problem. What I have is legitimate distrust of your stinking institution, not problems.
- “Does anyone here…” Do you know the difference between an open question and a closed one? Well, that was a closed one; the answer is either ‘yes,’ ‘no,’ or some other kind of one-word answer (e.g., ‘thirteen,’ or ‘fine’). Closed questions do not open up a conversation, do not lower the barriers to communication. Rather, they feel a bit like interrogation. Not a warm way to communicate.
Open questions, in contrast, do a much better job of enticing someone to respond. They offer more choice, feel less pointed, and allow the respondent to answer an actual question rather than the presuppositions that are inherent in a closed question.
I have found that lots of lawyers think they are asking open questions when they are asking closed ones. So here’s a quick diagnostic device: if someone answered your question with one word, it was closed.
OK, granted, that’s a tautology, but it can also be an eye-opener. Try thinking back to a recent conversation or try to be aware in your next conversation to see if you can spot a pattern in the responses that come from your questions. I also encourage you to get ahold of a transcript in which you were conducting voir dire and scan the pages for those stubby little lines that indicate a new speaker saying something quite brief.
I also encourage you to invest $30 in a digital voice recorder and record your next voir dire or rehearsal voir dire. Listen to it ruthlessly—I promise you that you will find two things.
One is that you are talking more than you think you do.
The other is that many more of your questions are closed than you think you ask. I guarantee it. Not in any valid or enforceable way, of course, but I guarantee it anyway.
Remember: it all starts with the intention, the mindset, the curiosity.