Voir Dire: Doing Less Gets You More

There’s a cutesy old saying that “god gave you two ears and one mouth, and they should be used in that proportion.” Well, the thing about being the creator of the universe is that you don’t have to pick juries to resolve grievances, so that formula doesn’t work in our field.  You should be using your ears and eyes – and those of anyone else from your office who can sit in with you – about 10 times more than you’re speaking. Want to have a searing learning experience while letting other people have some fun at your expense? Pull out a transcript of a voir dire you have conducted, and highlight all the lines that were NOT spoken by you, then riffle through the pages. In all likelihood, you will be surprised at just how sparse are those little flashes of color. I might not know you personally, but it is almost certain that you talk far more during voir dire than you think you do.

You simply must ask more questions. Open ones. And listen to the answers. And follow up on those.

In truth, you could conduct a GREAT voir dire with four short sentences: three questions based on your case issues, and frequently repeating as a follow-up question, “What else can you tell us about that?”

I sometimes try to figure out the fewest words that could be used to do a really good voir dire, and I think I have reached the Platonic ideal:

Two words.

Imagine it. In a civil lawsuit on the plaintiff’s side, counsel would want to uncover people who already hold opinions about so-called “tort reform,” limits on damages, stuff like that. With many kinds of people, you can use “dog whistle” types of phrases, the kinds of terms that have meaning to the initiated and have little or no meaning to anyone else. For instance, specific Biblical references or metaphors in certain audiences would be a “dog whistle” that the speaker is publically religious—those in that particular branch of religion will get it and signal some sort of recognition; all others will think it is interesting language.

Bonus example: I know someone who always manages to work the word “ditto” into his voir dires as a verb, as in after a prospective juror gives an answer, he’ll say, “Thanks for that. Anyone else here ditto that?” And he’ll see some knowing flickers in the eyes and little smiles on some lips. And who did he just identify even if nobody says a word? Followers of Rush Limbaugh. Think that would be nice to identify in a civil trial?

So pursuing this thought experiment, imagine the plaintiff’s attorney step up in front of the 18 prospective jurors, take a moment, smile warmly, take a breath, arch eyebrows in an inquisitive expression, and pause. Then …

“Runaway verdicts?”

And just wait comfortably. Look for anyone to flash some recognition across the face. Juror 7 nods a little, so counsel looks at her and smiles, and nods encouragingly, thus inviting Juror 7 to elaborate. She gives a great answer. The attorney turns to Juror 2, makes eye contact, smiles, and arches her eyebrows a bit in an inquisitive/encouraging expression and nods at him. So Juror 2 elaborates. And so on.

Same thing for the defense side. The attorney – preferably in something other than a funereal dark suit – steps into the well, smiles, holds his or her hands out wide, and says,

“One percenters.”

Admittedly, it is a fantasy and it would take some respondents who would play ball.  But there’s something to be learned here. Longer questions are MUCH more likely to lead to shorter answers and poorer info—the questioner is telegraphing the “correct” answer while simultaneously narrowing the question so much that the layperson can dispatch it in a word or two. Shorter questions lead to broader discussions. Think about your couple or three hottest buttons for laypeople in your case, and form the shortest possible questions about them.

 

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