Jury selection is often a very unpredictable time for a lawyer at trial. Voir Dire is the only time you have to talk with the jury and to identify who to eliminate in jury selection; you want to make the most of it. Preparing how you will approach the prospective jurors, the questions you will ask, and what to pay attention, to let you take control. Here are some tips to keep in mind to make the short time allowed for Voir Dire as predictable and beneficial as possible.
Take in all the information—start when they walk in the door
Pay attention to the prospective jurors from the moment they enter the courtroom. Often there is time to observe behavior before you begin questioning the venire. During that time you have the opportunity to notice helpful information such as how they carry themselves as they enter the courtroom, the way they are dressed, and whether they talk to their neighbors. Sometimes you even get a glimpse at what they are reading. All of these factors can help you in identifying attitudes or beliefs that may affect the outcome of your case.
Jury selection is the first opportunity you have to speak to the jurors. It is critical to use this opportunity to establish a good rapport with the venire. You want them to feel that you are a caring and trustworthy person. Give the venire your full attention to show them how you respect their time and attention.
Prospective jurors notice everything. They have nothing to do but observe you and the courtroom. Be aware of your facial expressions and body language and how prospective jurors might interpret them. Based on your demeanor, jurors may make inferences about you or your case. Don’t forget that they form impressions of you while you are forming impressions of them. Make the first impressions of you and your case count.
Ask the right questions
To elicit the most useful information from the jurors, you must ask the right questions. Phrasing questions properly to obtain the information can be a challenging task. Use open-ended questions to allow the potential jurors an opportunity to express their thoughts. Start with non-threatening questions in order to relax the potential jurors. Non-threatening questions might include basic demographic questions and questions about their jobs. You want them to feel comfortable talking with you.
To gather the most useful information, ask non-obvious questions. You don’t want to lead a potential juror into an answer. For example, a lawyer may want to find out how close the prospective juror is with his or her family and ask the question, "Do you have a close relationship with your family?" That question appears to lead the juror to the answer "yes", because people expect others to have close familial relationships. Instead, ask questions that do not conjure social expectations, "What do you enjoy doing with your children?" This question gives the prospective juror the opportunity to talk with the lawyer, yet it still assumes that the person must enjoy doing things with their children. A better question would be "What types of activities do you engage in with your children?" The responses can vary greatly. One juror may answer, "What do you mean? I take my family on a vacation once a year." Whereas another juror may say, "I read to my children every night; we go on bike rides; and have a family day on Saturdays." The type of answer given by each juror lets you gain insight into the person’s relationship with his or her family and their attitudes on family.
Everyone likes to talk about themselves; give the prospective jurors a chance to talk. When you ask the right questions you provide them the opportunity to give you insight into their attitudes and beliefs. With open-ended questions, the exchange between you and the prospective juror can be conversational. Nevertheless, you still need to obtain some commitments from them. After letting a potential juror talk freely, you may need to follow up with a closed-ended question to obtain a commitment. For example, a plaintiff who wants the jurors to commit to giving money should ask, "Will you be willing to award money damages if the evidence and laws provided by the judge support it?" Don’t forget that the prospective jurors are not witnesses, so all of the questioning of them should be much more relaxed.
The way potential jurors respond to the questions is very important. When a potential juror is answering your questions, listen to more than what the person is saying. Pay attention to how they say it. Do you notice a sarcastic tone or meekness? Does the person say their answer clearly or mumble during the answer?
At Carlton Trial Consulting we have created the Jury Selection System to assist with jury selection. The Jury Selection System focuses on behavior rather than personalities and is based on the four social styles of behavior: expressive, amiable, analytical, and driver. Expressives tend to be socially adept. They are usually talkative, enthusiastic and assertive. Amiables also tend to be social. However, they are usually less assertive and more supportive. They are dependable and respectful. Both the Expressives and the Amiables tend to be people-oriented. By being more people oriented, they may show more sympathy for an injured plaintiff.
Drivers and Analyticals tend to be more task-oriented. They focus on the task at hand and getting it done as compared to the social aspects of a project. Drivers tend to be determined and decisive. Analyticals tend to be vigilant, orderly and good data collectors. Drivers and Analyticals often review the information given to them in close detail, requiring more proof than the people-oriented Expressives and Amiables. They see their task as making a decision in your case. The defense might benefit from jurors who exhibit these behavioral styles for they may scrutinize the evidence to see that the plaintiff’s side actually satisfies its burden of proof. Observing and identifying the characteristics of the four basic styles of behavior requires listening to more than just the words prospective jurors say. It requires observing how they say it, their body language and how they dress.
Take careful notes of the language used by the prospective jurors and the associations and analogies made by them during Voir Dire. Then use the jurors’ language and style during trial to make them feel comfortable with you. Refer to things the jurors relate to and understand by using their associations and analogies. When possible, have another person take notes for you while you take the opportunity to get to know your prospective jurors and give them your full attention.
Asking prospective jurors questions related to your theme encourages them to start thinking about those issues. For example, you may want to introduce the idea that safety standards may not have been met by asking, "Are you required to follow safety standards at your job?" Or you may want to shift the blame in an automobile collision by asking someone who has been in a vehicle accident "Were you able to do anything to avoid the accident?" Introducing your theme during Voir Dire allows the jurors to begin thinking about the important ideas in your case.
Consider and explore the general attitudes of Retired people, Baby-Boomers and Generation X. For example, members of Generation X often express that, "We should take responsibility for ourselves." Growing up in the era of latch key kids, prospective jurors 33-years-old and under often feel that each entity is responsible for itself. They might suggest an injured worker could have avoided the falling limestone and not been hurt. Or that a company is responsible for including all of the safety mechanisms on a machine even it if does not deal in safety products. The company is responsible for its own actions and products. We have seen this attitude impact both the plaintiff’s side and the defendant’s side of cases. Yet, the effect tends to be more apparent on the plaintiff’s side of cases by Generation X jurors suggesting that the plaintiff contributed to his or her own injuries.
Challenges for cause can be a successful means of eliminating undesirable prospective jurors. Anticipate opportunities to argue for challenges for cause by preparing questions before jury selection about potential areas of biases. Delving into a prospective juror’s experiences and ideas in a specific area may help uncover an unacceptable attitude in this case. Use your questions to try to eliminate the prospective juror without using a peremptory challenge.
Use Batson to your advantage
As you know, in Batson v Kentucky, 476 U.S. 79 (1986) the Supreme Court found that the use of a peremptory challenge to discriminate against racial minorities violated the Equal Protection clause of the 14th Amendment. Edmonson v Leesville Concrete Co, Inc., 500 U.S. 614, 111 S. Ct. 2077 (1991) extended that to civil cases. Batson challenges apply to ethnicity and gender in addition to race. If you notice your opponent systematically challenging people within these categories, don’t hesitate to raise a Batson objection. Also, keep track of your race, ethnicity and gender neutral reason for using your own peremptory challenge.
In summary, the jury selection process should be planned and executed with the same level of attention given to all other aspects of your trial. Let the court, opposing counsel and prospective jurors know you are prepared for the entire trial process.
These 10 tips will help you develop a positive rapport with your prospective jurors while eliciting critical information. Your well-planned Voir Dire questions and strategies will prepare you to successfully eliminate the least desirable jurors.
Patricia F. Kuehn, J.D., M.A. is a Trial Consultant with Carlton Trial Consulting & Research Center, Inc. She applies her social psychology background to jury research and case development. Ms. Kuehn’s experience includes mock trials, focus groups, witness preparation, jury selection, developing exhibits, and researching other jury behavior and trial issues.