Some weeks ago, I was talking with a lawyer who probably does a dozen trials per year and has been doing it for 15 years with results that are well above average. She was lamenting her discomfort with the jury selection process, especially the oral questioning of prospective jurors. Among other things, she said, “And how do you even know when to stop?”
This struck me. Hard. Like ‘blink hard a couple times with the cartoon “doink, doink” sound effect’ level of impact. After all, how do you not know when to stop asking the panel questions?
But . . . later, one more thing struck me: she was voicing something that, upon reflection, I see is not uncommon. In looking back, that very uncertainty explains some of the more puzzling conclusions of voir dire I have watched. Often, lawyers go until either the Robed One stops them, or they run out of stuff to say, or in a sudden panic that things are going poorly and maybe that they’ve annoyed too many people who are about to go from “prospective juror” to “you’re stuck with me now, dude.” (Or dudette.)
I get it. And that insecurity makes sense to me. Fortunately, I can help.
The answer is: Stop voir dire when you have met your goals.
And that right there is what I pinpoint as the big problem: lack of total, utter clarity on one’s goal for oral questioning of jurors.
Just to remind everyone, the prime goal is: Get good quality information so we can exercise challenges intelligently and effectively – both cause and peremptory challenges. Anything else is secondary, so if you haven’t achieved this one, whatever the other thing you were trying to do does not matter.
Nevertheless, there are about four other goals that lawyers have during voir dire, though.
And they are not all good.
1. Explaining legal concepts
Or explaining anything. See whether this sounds familiar:
Criminal Defense Attorney: “Who here might have a problem if my client doesn’t testify?”
Venireperson #3: “I might.”
Criminal Defense Attorney: “Well, you understand that the Fifth Amendment to the Constitution embodies one of the central pillars of Anglo-American jurisprudence and that it would break not just the law but violate the Constitution if anyone held it against my client that she did not testify, right?”
Venireperson #3: “Um, yeah, sure.”
[Trial Consultant: “Grrrrrr.”]
Or an example from civil world:
Defense Attorney: “Mr. Lastname, you indicated to Ms. Counsel that you could vote for punitive damages under the right circumstances, right?”
Prospective Juror: “Right.”
Defense Attorney: “Now, the judge will tell you that those are only for cases that are outrageous and shock the conscience. It isn’t ‘pain and suffering’ damages or just extra money because the plaintiff seems nice, but really for special punishment for truly outrageous conduct. Will you keep that in mind?”
Prospective Juror: “Yes.”
[Trial Consultant: Recalculating the peremptory challenge budget because we just blew the cause challenge; ponders giving some attorneys tattoos on the back of their hands that say:]
And that’s how lawyers miss (a) actually learning about the jurors’ feelings that will drive decisionmaking, and (b) any possibility of developing responses that might lead to a helpful cause challenge. One of the big disconnections between what we’re taught in law school and the real world of real people is that merely understanding a concept does not mean that people will actually make their decisions that way when the time comes. Therefore, it’s a lot more important to learn from them how they are likely to decide, rather than try to teach a mini-class on law with some fantasy that they will automatically follow it when the time comes.
Bad goal. Really counter-productive and self-defeating goal.
Mind you, explaining stuff is different from . . .
2. Surfacing case issues
This is an important – though subsidiary – goal for your oral questioning. Obviously, the quality of questioning is enormously increased if there is some context. Ask the question, “Do you think accountants care more about their clients or about following the principles of accounting,” and expect a few crickets to chirp.
But ask, “Part of this case is going to be about how the accountants working for XYZcorp did their job before the public offering. Who here thinks companies always tell the truth to the public about their finances? [Pause; note who raises hands] And who here thinks companies always lie to the public about their finances? [Pause; note these people] Juror 7, I noticed you chose __; tell us some more about that.”
Crafting good open questions that uncover subtle or strong feelings about key case issues is difficult and awkward in those dwindling hours before trial begins. Fortunately, that work can be hired out to people with that talent.
Unsurprisingly, when people understand the context of your questions, their answers are better and on point. That is why I am such a huge fan of the mini-opening statement. If judges were really serious about decent voir dire and not “trying the case in voir dire” nor “going into too much evidence to precondition or get commitments” or other phobias that lead to decontextualized questions that are inefficient and ineffective at revealing bias, judges would offer the mini-opening in every case. That would be ten minutes that could more than earn itself back with better and shorter questioning by counsel.
3. Building rapport
Definitely a worthy goal – though a lower level one. The old saying is that while you’re picking a jury, the jury is picking a lawyer. It’s true enough that it’s worth keeping in mind. It is also true that likability is the larger of the two ingredients of credibility. (Competence is the other, lesser ingredient.)
4. Winning case in voir dire
This is related to Bad Goal #1, above: explaining stuff. I think lawyers try to explain stuff in voir dire because they are trying to win their case in voir dire. It doesn’t happen. You can’t catch a fish by lecturing it onto the hook.
I understand that the days or weeks running up to trial are a whirlwind of papers and boxes and binders and clients and colleagues and facts and schedules and motions and more. That’s why it is critical to create a calm moment for recapturing your curiosity about people, focusing on understanding the prospective jurors instead of lecturing them, visualizing leading people into revealing their legally unacceptable biases rather than thinking we can push them to cop to them, and crafting good questions (or hiring someone to do that). And to clarify our goal so we know when to stop – not too soon and not too late.