By Trisha Renaud
Judges seem to be in a bigger hurry these days when it comes to voir dire.
Few on the bench ever grant the litigator’s dream: free rein and unlimited time to question the venire panel. Yet, of late, judges appear to be even more pressed than usual.
Some judges are choosing to do the questioning themselves. Others are setting limits on each side’s time with the panel. And some are just pushing lawyers at break-neck (and nearly break-less) speed.
No matter what form it takes, abbreviated jury selection is a problem for the unprepared lawyer. You may plan for the perfect voir dire, only to be given less than half the anticipated time to do it.
The solution? When time is short, voir dire must be focused and productive.
That means curtailing the urge to use questions for argument or advocacy and, instead, concentrating on ways to gather the most information possible about your jurors.
Jury selection has several well-recognized goals: Establishing a rapport with jurors, educating jurors on issues and legal principles they will confront in the case, and—first and foremost—finding out what they think.
But some attorneys spend too much time using questions to argue their case. Attempting to persuade potential jurors on the righteousness of your cause shouldn’t be a goal of voir dire. Here’s why:
• In the time span of a trial you are unlikely to sway anyone to your side who is close-minded to your point of view.
• You may cause the unfavorable jurors (whom you need to identify) to stop providing information to you.
• Most importantly: You won’t find out the information you really need to know.
The critical task in voir dire is not to alter jurors’ beliefs, but to discover what they believe. Only then can attorneys make informed peremptory strikes.
The notion that selling one’s case must begin in voir dire originated with early jury studies in the 1960s. Researchers concluded that jurors begin to form fixed opinions during voir dire and, by the end of opening statements, a huge percentage have already made up their minds. The logical conclusion, then, was to begin advocating one’s cause right away, including during voir dire.
Critics (and later research) pointed out that those early studies had an important flaw: They did not consider pre-existing attitudes and how those affected the formation of jurors’ opinions. In all likelihood, jurors in these studies made up their minds so quickly due to biases they acquired long before they stepped into court.
Those pre-existing attitudes or beliefs—particularly those shaped by jurors’ personal experiences—are very difficult to change. Voir dire is best used to explore those biases rather than attempt to change them.
So what to do with limited time? Make sure you cover what’s pertinent to the particular case, rather than relying on the standard one-size-fits-all questions.
Run over the story of the case in your mind, listing all the important elements that will be presented. Is there a contract involved? A delayed diagnosis? A gun? A foreign-born client? A promotion denied? A defective product? A broken promise? A warning ignored? An abusive boss?
Crafting your questions
You can and should ask jurors directly for their opinions on these topics, but, to be most effective, you must also ask about the experiences they have had that shaped their opinions and about their habits or behaviors.
Craft your questions by first considering what experiences might jurors have had that bear on these issues and what behaviors they might engage in that would tell you something about their attitudes on these topics.
For example: Have they ever had a situation where they wished an agreement had been put in writing, but wasn’t? Do they always read the fine print before signing a document? Do they go out of their way to buy American-made products? Ever written a letter to complain about a product?
Then tackle the legal elements of the case for your side and the other side. This should include causes of action, defenses, or, in a criminal case, the elements of the crime. Again, consider what related experiences jurors may have had and what type of behaviors might reveal their attitudes.
If you go through this exercise, you will have included the essential questions you need to ask to gather information. You will also have educated jurors on what they can expect the case to be about.
If there are particularly thorny or sensitive issues in your case, bring them to the attention of the judge before the day of trial. Explain why these issues might be a problem and how you’d like to address them. When judges are presented with specific requests, rather than a general “we just need more time,” they may be willing to go along.
Come prepared with two lists, one shorter and one longer. One should contain the most essential questions for your panel that must be covered in the event your time is cut short. The other can contain those quirky questions (such as “whom jurors most admire”) that you’d love to ask if time—and the judge’s patience—permits.
This article is reprinted with permission from the March 30, 2010 issue of the Fulton Daily Report © 2010. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
