Advanced Voir Dire and Jury Selection (Part 1)
by Brett Godfrey
Many advanced practitioners consider voir dire to be more of a magical art than a formulated technique; it is much more important and difficult to learn or teach than direct or cross examination, opening or closing statements. It is arguably the most difficult skill to master, but it must be developed to a high degree in order to bridge the gap in skill that lies between fundamentally competent courtroom attorneys and master trial lawyers. To borrow a phrase, voir dire is “the final frontier.”
The power and importance of skillful jury selection is easy to appreciate if one takes note of the key truth that drives this aspect of a trial: Regardless of how skillfully a case may be presented, every case carries with it some aspect or attribute that will trigger biases, prejudices, fixed thought patterns and rigidly held beliefs in the minds of some potential jurors. These thought processes, attitudes and beliefs can be so firmly fixed in the mind of a person that if he or she makes it onto the jury, you are likely to lose that case regardless of the strength of your evidence, unless that juror is drastically outnumbered and succumbs to the pressure of the majority.
Skill in jury selection is the most amorphous and difficult to teach of all of the basic trial skills. There are certain fundamental principles that must be understood in order to develop the ability to question potential jurors in a manner that will elicit responses that permit an attorney to wisely determine which jurors to challenge for cause and when such a challenge, or at the very least, to strike peremptorily.
Two of the reasons jury selection is difficult to learn and master are that there are many different ways to approach the task and none of them are necessarily right or superior, and there are so many completely erroneous but widely-held beliefs that have percolated into the melting pot of prevailing wisdom. Many misconceptions stand in the way of mastery in the art of jury selection. These misconceptions persist because they sound reasonable when first advanced to a population of neophytes and often involve aspects of human behavior and psychology that are counterintuitive.
The first great misconception — obvious though it may be — is that there is such a thing as jury selection. There isn’t! No juror was ever selected in an American civil case. There are only potential jurors who have not been deselected. The only selection that actually takes place is when the office of the jury commissioner sends out jury summonses to persons whose names appear on property tax rolls, driver’s license records and other databases from which random selection is made.
Accordingly, the simplicity of the process gives us our first insight. “Jury selection” is nothing more than a culling process in which a large number of individuals are interviewed as part of a group and choices are made regarding who will be excluded.
Cutting-Edge Preparation and Jury Research Strategies
Most trial lawyers agree: what you don’t know can hurt you.
A famous comedian once joked that a jury consists of 12 persons who are not smart enough to get off a jury. Robert Frost reportedly observed, “A jury consists of twelve persons chosen to decide who has the better lawyer.” Setting aside the stereotypical dozen pictured in Twelve Angry Men (a fascinating movie that was made and re-made years later), in which most of the jurors were reasonably intelligent and deeply interested in the evidence, there is some truth to both of these assertions.
A few years ago, while handling a highly publicized case in Cape Town, South Africa, which was the subject of a great deal of media commentary regarding the American system of justice, I heard a lawyer remark, “consider how low the average IQ is in America, then realize that half the country is even dumber than that!” Dozens of South African listeners, who had become intrigued with the litigation because it involved a world-famous best-selling author, laughed at this remark with a mixture of satisfaction and derision.
It seems that the stereotypical image of the average man is not particularly flattering. We all have mental pictures of the everyday working stiff who barely made it through school and who stocks shelves at a grocery store; the empty-headed housewife who spends her days hypnotized in front of a television while soap operas drone on all afternoon; the antisocial counter-culture would-be revolutionary who specializes in negating every idea that comes his or her way — these are stereotypes, but they are also real people, and we tend to fear them when they make it onto a jury. We fear their petty minds, their antagonism and their avarice, their short attention spans and their sympathy or lack of sympathy. We fear that we cannot reach these people, so we marginalize them, if only unconsciously, in order to avoid the overwhelming intimidation that can paralyze an attorney as he or she approaches the podium to commence voir dire.
Who are these people?
The first and most important thing you do not know is the answer to this question: which of these people will hurt me no matter what I do?
Who is the ticking bomb that must be removed from the room before you can safely try your client’s case? Who carries “baggage” that will make it impossible to persuade them of the justness of your cause? Simple examples make this obvious: if you represent a member of a racial minority (or are a member of a racial minority) and one of your potential jurors has been taught to hate members of that minority, the strength of your evidence may turn out to be immaterial. If you, your client or one of your key witnesses reminds a juror of someone who mistreated them, the subconscious effect of that juror’s memories and associations will create a barrier that may or may not prevent that juror from being able to focus on the specific details of the case. A visceral emotional response that is not readily predictable is likely to occur in at least one person anytime a group of strangers is asked to examine the details of a dispute. The unpredictability of emotional responses flows from the infinite complexity of life experiences, and is one of the key reasons the American jury system has come under criticism.
Another misconception is that the purpose of jury selection is to begin planting seeds in the minds of your ultimate jurors. “Voir dire is your first, best opportunity to begin advocating on behalf of your client,” some lawyers say. “It is essential to begin gaining a psychological foothold from the minute the jurors begin to care about the case in order to obtain an early advantage.” Lawyers who advocate this approach site what they refer to as “the rule of primacy,” which is premised upon the idea that first impressions become permanent and if a juror begins to favor one side early in the case, that bias will influence how he or she accepts the rest of the presentation, for people tend to look for ways to validate beliefs once those beliefs exist.
This view is buttressed by a number of jury studies, including one performed in the 1980s by the University of Illinois, indicating that for more than 80% of jurors surveyed after trial, jurors who formed a leaning for one particular side by the end of the opening statement ultimately rendered a verdict in favor of that side, or at least voted in favor of that party at the commencement of deliberations.
From the foregoing, it should be clear that two competing interests in jury selection are detection and advocacy. While these interests differ, it is possible to advance both in a skillfully conducted voir dire. With more than 90 jury verdicts as lead counsel, and another 35 or so as second chair, this author’s approach has evolved steadily over the years in the direction of favoring detection over advocacy.
The reason for this is simple. Courts usually impose time limits on voir dire. In a civil case, it is not unusual to be limited to 30 minutes of questioning to select a jury of six or even eight members. If the venire consists of 30 people, this would provide an average of only 60 seconds to question each potential juror. By focusing questions upon those potential jurors who are, based upon jury number or seating chart protocols, more likely to serve on the jury unless they are stricken, it may be possible to devote as much as five minutes of dialogue to a particular juror. Under time limitations such as these, there is a lot of work to be done in detecting bias and learning other facts about your potential jury.
Thus, while it sounds great to say, “voir dire is your first best chance to begin advocating for your client,” it is simply more accurate to recognize that voir dire is your only chance to identify, before it is too late, those potential jurors on which to expend your limited peremptory challenges and who should be challenged for cause. If a “human bomb” (meaning a person whose belief systems, hard-wired reactions or emotional idiosyncrasies make them impossible to win over in light of the details of your case) slips beneath your radar, nothing else you do is likely to matter in terms of the outcome of the case. It therefore makes little sense to spend valuable time giving an interactive opening statement. There is a designated time for giving opening statements, and voir dire is not that time.
This is not to say that there is no point in advocating your client’s case during voir dire, but the manner in which that is done must take a backseat to a mission of higher priority, which is to learn about the jurors. That knowledge is not only used for the purposes of determining how to exercise peremptory challenges, but also to inform how you advance and develop your themes during the trial itself.
The purpose of voir dire is to untangle the basic mystery: who is that man or woman over there? The purpose of voir dire is to learn a great deal about a group of individuals in a very short period of time. It is possible to build a rapport with potential jurors during this process; indeed, it is practically impossible to skillfully question potential jurors without doing so. If an attorney’s purpose and focus are clear to him or her in advance, the details of execution can be adjusted spontaneously and extemporaneously as things unfold during the process. This is true of all phases of trial, but perhaps nowhere is it more true than in jury selection.
In addition to knowing which jurors to strike, the information gleaned during voir dire allows you to navigate the complex network of belief systems and reactive thought processes of those who ultimately sit on the jury. It is possible to begin speaking a common language with particular jurors, to learn how to frame the case in light of their individual values, and to begin to understand the personal hidden standards jurors bring to bear in deciding the case.
What are the rules?
It is surprising how many lawyers conduct voir dire without knowing even the basic rules applicable to jury selection and jury service. Lawyers often have a difficult time determining what questions to ask because they are afraid they will violate an unknown stricture and draw criticism from the bench, the humiliation of which in the earliest moments of a trial could be both unbearable and, to the uninitiated, important to the outcome of the case.
The simple truth is that the questions to ask in voir dire are those questions that will make it possible for you to learn how the hearts and minds of your jurors operate, at least at an individual level (knowing that groups digest information differently than individuals — witness mob psychology) without violating specific prohibitions. It is more important to know what to ask them than to know what you should not ask, for it is unlikely that an attorney will experience a severe sanction in response to an improper question if it is asked in good faith. Most attorneys are aware of the inappropriate nature of questions seeking to elicit promises from jurors concerning how they will decide the case if certain evidence is presented. Further, most courts will not permit an attorney to question a potential juror regarding religion or religious belief, political affiliation or how a juror voted in a previous case if he or she has prior jury experience. Some familiarity with the formal dictates pertaining to jury selection is useful. For example, Fed.R.Civ.P. 47 specifies as follows:
(a) Examining Jurors. The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.
(b) Peremptory Challenges. The court must allow the number of peremptory challenges provided by 28 U.S.C. §1870.
(c) Excusing a Juror. During trial or deliberation, the court may excuse a juror for good cause.
Provisions for qualifying, drawing, and challenging of jurors are found in Title 28 of the United States Code, §§ 411 through 424. Case law provides many examples of how appellate courts view a trial court’s exercise of discretion in supervising the conduct of voir dire. Most state courts apply rules or statutes of their own to govern the process. Many federal judges have adopted individual or district-wide practice standards that address appropriate means to question potential jurors. While this is not particularly voluminous information, knowing and understanding these guidelines before selecting a jury reduces stress by removing mystery from the process. In addition, there are a number of truly valuable guides that contain compilations of applicable law, and principles guiding effective examination of potential jurors. This author’s favorite treatise on jury selection is Blue’s Guide to Jury Selection by Lisa Blue, Ph.D. and Robert Hirschhorn (West, 2014).
An equally well-known rule, which is not universally applied but followed by some courts, is that it is inappropriate to ask a question of a specific individual that could be posed to the entire group. For the simple sake of time efficiency, there are in fact some questions that are better put to an entire group as a whole, but for the most part it is typically difficult (particularly in the early moments of examination of the venire) to flush out meaningful information with questions posed to the room at large. Indeed, many lawyers talk about how awkward it feels to stand at the podium posing question after question to the group as a whole, only to be met by row after row of blank stares while the clock ticks away and valuable moments of opportunity our lost.
Your first job in jury selection is, therefore, to get the jurors talking.
Strategies for Getting Reticent Jurors Talking
Put yourself in the shoes of a potential juror . . . .
You rise from bed early, have your coffee and read the paper, realizing that this is your day to report for jury duty. You may resent having your life interrupted, or you may be excited to get away from work for a day or two. But what if it takes longer? What if you are made to sit on a jury for several weeks? If you own a small business, this could produce a hardship. If you are a primary caregiver for a disabled person, the same is true. What if the case is boring? Sitting, hour after hour, day after day, adrift in a sea of legal terminology and gamesmanship perpetrated by lawyers who think they are smarter and more entertaining than they really are is, in the minds of most, an unbearable fate.
Most laymen associate the law with an unintelligible language and complicated procedures that are designed to be confusing, crammed with illogical loopholes by which dishonest people can escape justice. This cynicism often hangs like a cloud over the group once they assemble in the court room.
But, still, it might be interesting. After all, you loved The Judge, The Rainmaker, The Firm and — remember this one? — Judgment At Nuremberg. Law and Order was interesting, and so were L.A. Law, Perry Mason, Matlock, Boston Legal and People’s Court. So maybe it won’t be so bad after all. It might be a nice break from another day on the rock pile.
You drive to court, trying to follow the turn-by-turn directions from your phone. You look for a place to park, wondering if you should have brought lunch with you. Upon reaching the courthouse door, you find yourself in a long line. You advance slowly as each person entering the building is ordered to empty their pockets, take electronic devices from their bags, remove their shoes and belts, and walk through the metal detector. By the time you are inside the building, you have been herded through a virtual obstacle course. Some of the people in line are hauling boxes and boxes of exhibits and equipment that must through the scanners. They are dressed in suits nicer than the one you wear to church. They look angry, frightened and frazzled. Others in the line are wearing extreme clothing, such as jeans cut off just below the knee to show off tattoos on their calf muscles and wife-beater T-shirts that show off their underarm hair more than their flaccid muscles. Their piercings, tattoos, strange hair and flagrantly hostile attitudes identify them as criminal defendants or witnesses to crime, or so you judge. Whether they are gang-bangers or legal eagles, most of these people are not your type.
You find your way to the jury commissioner’s office, where you sign in and show your ID. Then you are asked to fill out a questionnaire asking about your views on law, demanding that you disclose whether you or your friends or family have criminal or civil litigation histories, whether you have any health concerns and other personal questions. The depth and intimate nature of the questions awaken you to the reality that you are about to come under a magnifying glass. By the time you are finished filling out the form, your mind is spinning. “Why do they need to know all of this?” you ask yourself. A tangle of quivering nerves begins to wind its way around your stomach.
And then, as the excitement builds, you are left to sit in a chair for a couple of hours with no word on what is going on. You become more and more bored and impatient. You mingle with strangers or you get lost in your smartphone. You pace or you knit or you bite your nails or you just stare at the clock. An old man spills some coffee on your sleeve; he grunts, but he doesn’t apologize. A woman at the counter starts wailing in a language you don’t understand, pointing at her purse, which you find yourself hoping does not contain an explosive device. A baby begins to cry, and its impossibly young mother curses it as she takes it outside. Will she breast feed it in public? How could she have been summoned to jury duty with a baby? Will the baby get her out of this?
After a long while, the lights are dimmed and a video is played on wall-mounted television monitors in which a man in a black robe enlightens all viewers regarding aspects of the jury system that you neither knew nor cared about. Are you supposed to be remembering the details of this film? Will they matter later?
Eventually you are called by name, along with many others, who are sent to a particular courtroom. After some more herding you find yourself sitting on hard wooden benches, shoulder to shoulder, in a crowd of strangers. The experience reminds you of attending a funeral for a friend you hadn’t seen in decades, whose mourners (acquaintances and family members, you assumed) were total strangers to you.
You look at the tables on the other side of the railing. Men and women in formal attire, whom you assume are the parties and their lawyers, sit at their respective tables. Some are calm, while others fidget. One turns and stares pointedly at the crowd you are a part of, a wooden smile — or is it a smirk? — pasted on his face. Two women pass notes and whisper, and one of them points at you. Or was she pointing at the lady next to you, the one with the Mohawk and the steel rod through her cheek? A few others fiddle with computer cables and office supplies or pore over legal papers.
They must be really amped up, you think. This is game day for them. You wonder what it is all about. Do any of those people look guilty? None of them are in overalls or wearing handcuffs. You realize that there are no armed persons in the room; no guards, bailiffs or sheriffs’ deputies. What if someone goes berserk? Who will protect everyone?
You sit. Then you sit some more.
At long last, there is a loud crack and Her Honor The Judge enters the room. Everyone stands. This is a big new development! Something is going to happen now.
The judge takes a seat and immediately starts droning on in a bored, mechanical way about the requirements of jury duty. She mentions something about this being a two-week trial. As she mutters about speaking English, not having felony convictions and so on, your mind wanders . . .
Two weeks? Your husband will be furious! And what will your boss think?
Will you be picked to sit on the jury?
What will the lawyers be looking for in a potential juror?
Fourteen people are called to come forward and sit in the jury box. Yours was the sixth name called. Your heart rate picks up a bit. You suddenly realize that you are very thirsty, and you envy the heavyset lady who is called to sit next to you for bringing a huge water bottle. Or is it something stronger? She smells like vodka, sitting next to you. She is sweating.
The judge points to a poster with a list of topics on it, ranging from your name and occupation to your hobbies and whether you have friends in law enforcement. You listen as others rattle down the list, giving names, job titles, and fragments of anecdotal experience by which some lawyer is bound to either latch onto them or kick them out of the room. The girl with the newborn baby is nowhere to be seen.
By the time you have been in this building for about three hours, an attorney walks to the podium and starts his or her voir dire examination. You are completely unsure of what to say and would rather not be asked to talk. You have always feared speaking in public, and you know from television that you probably will be asked personal questions in front of all these people.
You realize that you are a potential juror and it the lawyer’s job to make you talk. But you’ll say as little as possible and keep your head down. Hopefully they won’t find out about what happened three years ago with your boss or the baby. Hopefully they won’t find out about your feelings about men. It is really none of their business, after all. It’s not like you asked to be here. What right would these people have to pry into your life?
If you try to conduct voir dire without realizing that this is how most of your potential jurors’ mornings have unfolded, you are doing yourself a disservice.
Building a rapport of the kind that leads to important revelations, confessions, feelings and observations being freely shared takes several different ingredients, but deciding which are the most important leads to a three-way tie: The jurors must like you, they must feel that there is some common ground shared by them and you, and they must be able to exchange information with you in a way that is neither painful nor humiliating nor likely to get them in trouble. We may generally divide these under the simple labels of affinity (meaning that you and the juror can comfortably tolerate being in a room together, and with luck, that the juror likes you and is interested in what you have to say), reality (meaning that you and the juror live in the same world, at least to a degree, and have some common experience and common beliefs and values) and communication, meaning that information flows between you without obstructions such as lingo, language, hearing, irritation, distraction, prejudice or other non-optimum factors getting in the way. A good example of such a barrier arises when a juror feels that you are not really listening to him or her when they actually say something that is important to them, which comes from the simple and common mistake of failing to acknowledge their statements. When jurors are willing to share, they must be rewarded.
First, however, it is often necessary to break the ice, meaning that it is necessary to ease jurors out of their catatonic comfort zone. Of course, there is a difference between breaking the ice and shattering it all at once. The former is usually better.
Much of what is advanced here is derived from the experience of picking more than 100 juries as well as having been summoned for jury duty and experiencing voir dire from inside the jury box. In one particular trial in Casper, Wyoming, after watching an attorney struggle for the better part of an hour trying to illicit signs of life from a particularly dormant gathering of souls, when it was this author’s turn to step up to the podium, I decided to try an experiment.
“Good morning, ladies and gentlemen. Here is my first question: who here thinks my client can get a fair trial in this case?” All this question elicited were blank stares from 30 slack-jawed spectators who hadn’t had enough coffee to get their brains working that morning. As my opponent had demonstrated, it was a “hard room,” as comedians like to say.
I looked around the room, letting the absurdity of the situation soak in. “Hmmm,” I muttered. “Not one person in this room thinks my client can get a fair trial. Not good.” A few jurors chuckled, while others gaped in surprise at such an unconventional approach.
“Here’s the thing,” I explained. “This process is called voir dire, which is a French phrase for ‘speak the truth.’” I pronounced it vore dyre (rhyming with “for tire” as the accurate pronunciation of the term, which sounds like the sound vwa deeah coming from deep in the throat of someone in dire need of the Heimlich maneuver. In small towns in Wyoming, it is better not to be too cosmopolitan, which for me is not generally a problem.
“I know what it is like to be sitting where you are now,” I said with a friendly laugh. “It just takes so much energy to raise your hand, and if you do so, it might be taken as a confession that you actually showed up for jury duty. You might get stuck here.” A few more smiles and polite chuckles came my way, as the room warmed to contextually relevant humor that dissipated the stress which I had intentionally created so that it could be released.
Then I decided to start prying people out of their shells one at a time. I chose one of the few potential jurors who had been at least somewhat vocal when answering my opponent’s questions. “Mr. Thurmond,” I said glancing from my pad to the prospective juror, who looked up at me expectantly. “How do you feel this morning?”
“I feel fine,” he replied.
“Do you feel like serving on this jury?” More chuckles. The group was beginning to warm up just ever so slightly. Even Mr. Thurmond smiled.
“Do I have a choice?” he asked.
“That is for his honor to decide,” I replied. “But if you did have a choice, would you stick around for this and help us solve this problem? Or would you rather be at work or doing something else?”
“Well, to be perfectly honest, I would really rather not — but I know it’s my civic duty, so I’ll do what I have to.” Satisfied with that answer, Mr. Thurmond folded his arms and settled into his seat a bit.
“Speaking for the Defendant, which is what I’m here to do, you are not the only one who would rather be somewhere else. But let me ask you this,” I added quickly, to glide past any objection that would eventually arise if I let a pregnant silence linger. “Do you believe that the right to a trial by a jury of one’s peers is important?”
“Excuse me?” Here we see triggered a fascinating aspect of legal interrogation, which arises in depositions, on the stand and during voir dire. When the questioning elevates from the mundane to the arcane many people are slow to make the transition. To help them catch up with any evolving train of thought it is necessary to begin with a series of softball (easy) questions that leaves little room for uncooperative responses. Later, I will want this juror and all of the rest to speak with me candidly, but we need to develop momentum before I can expect that to happen. For a short time, my only real goal is to pull him into a conversation more sophisticated than comedic and to set the tone for such discussions with the rest of the potential jurors. This is why I commenced my individualized questioning with a juror I knew to be at least somewhat vocal.
“Well, Mr. Thurmond, what I mean to ask is this: in this country, unlike most others, a party to a civil case — which is a case about money rather than crime or criminal punishment — each party has a right to have the case decided by a jury consisting of ordinary, normal people who are typically members of the community in which the party lives. Very few countries guarantee that right to the everyday man or woman. Did you know that?”
“No,” Mr. Thurmond replied candidly. “I never knew that.”
“Well, it turns out that in the United States, as well as in this state specifically, the right to trial by a jury in a civil case is actually a constitutional guarantee.” After a short pause, I asked, “What do you think of that? Do you think it’s a good idea?”
“Well, I never gave it any thought,” Thurmond answered.
“To be honest, Mr. Thurmond, neither have most people. You are not alone. In fact, very few people give this question any thought at all until they receive a jury summons. But in truth, what I am really asking you is whether you have any particular feelings about the process in which you have found yourself this morning. It was kind of a hassle just getting this far, wasn’t it? Did you have to fill out questionnaires and sit around for a long time?”
“You got that right,” Mr. Thurmond said with a smile and a nod.
“So, how about it? Would it be okay if we asked you to hear the evidence in this case and be part of the process?” Note that I am not asking this juror for a promise of the kind for which a judge would admonish me. Instead, I am simply building an agreement with this juror (and by associational psychology, with a few others as well) that he is willing to tolerate being pressed into service as a juror and to answer my questions.
“Does it make sense to you that each party would have a chance to question all potential jurors before the decision is made as to who will sit on the panel?” This is a “turning point” question. The natural tendency to remain disengaged with which nearly all prospective jurors enter the courtroom on the first day militates in favor of remaining detached in every possible way, and to avoid making any commitments about involvement, let alone personal revelations.
“Well, sure,” Mr. Thurmond conceded. “I guess.”
“So then is it okay if I ask you some personal questions? Not to pry, you understand, but simply to help all of us. In fact, you have a right to be heard before someone decides that you should sit on a jury, so this is for your sake as well as everyone else’s. Does that make sense?”
“Yes. It does.” With this definitive and affirmative confirmation, it is now safe to move ahead. Awkward and tenuous as it was, the dialogue leading up to this point was imperative in the adoption of the unwritten rules I need this group to adopt so that I can succeed in my jury selection mission, which is to get these people speaking honestly about delicate issues that may be so emotionally charged as to render a person unable to fairly hear and decide the case.
“Thank you, Mr. Thurmond. So, let me ask you this: . . .” And I started down a list of hot-button issues and ancillary questions on issues from world politics to movies and books to family interests to beliefs about how to find the truth in the face of conflicting evidence. Getting as much as I could as quickly as I could, I then moved on to the next juror. And the next, and the next, before my time was up. By the end of my voir dire, I had an animated group discussion underway, and the information coming from the group went from a trickle to a torrent.
The key to getting jurors talking is to work on them one at a time, on a gradient, slowly building rapport, using charm and slowly growing doses of controversy, to stimulate candid responses.
Many attorneys are blinded by a primordial desire to pull out into the lead in a popularity contest on the first morning of trial. They work hard to say or do nothing that will illicit a negative response of any kind. They think that if an attorney says something in response to which one or more prospective jurors express this agreement, that attorney will lose ground that can never be regained. Such attorneys believe that if everyone likes and agrees with everything they say before they even given opening statement, the trial is off to a good start. Satisfying as this may be in the short term, for it always feels safer to fit in rather than stand out, it is not a particularly effective tactic to use in a case that has any holes, weaknesses or aspects that are likely to trigger what I call the “rejection response.”
Like most aspects of voir dire, the truth is counterintuitive. Finding out exactly what triggers the rejection response is crucial, but the key is to make that discovery before you exercise your peremptory challenges rather than during or after the trial itself.
Another example: at the commencement of the trial involving the allegedly wrongful discharge of an executive based upon her religious beliefs (she was a practicing Buddhist), I asked the potential jurors as a group how they felt about the practice of reciting the Pledge of Allegiance in school, at sporting events, or other public gatherings. Of course the majority of those who responded were patriotically in favor of the flag, the Pledge of Allegiance, truth justice and the American way. Fine.
“But what about the part in the Pledge that mentions ‘one nation under God’?” I asked. “Is it a violation of the separation of church and state to require people to recite that? What if they don’t believe in God?” The result of a question like this can be like tossing a raw steak into a pack of starving dogs. Nothing brings out the worst in people more than talking about religion, but that is what I need to hear if I’m to represent a Buddhist before a group of devout southern Baptists. After all, I can’t ask, “Who here believes in hellfire and brimstone?” because that question invades the juror’s rights of religious privacy, which most courts will protect even during jury selection in a case based upon religious discrimination.
This question flushed out two prospective jurors who believed that anyone not a member of their particular branch of their particular church deserved any and all maladies God chose to send their way, including plague, pestilence, the loss of their first-born son and — you guessed it! — termination for being a heathen. No force on this planet would bring these two jurors to award damages to my client.
Of nearly equal importance, I learned that there were several other jurors who struggled with the issue of how to protect freedom of religion and freedom of speech while at the same time honoring the tenets of religious faith that Mainstream America is built upon. Jurors who struggle with contradictions are jurors who can be persuaded by evidence and well-constructed argument.
Drawing out Juror’s Attitudes, Opinions and Biases
Though it seems redundant in light of what is given above, the question deserves to be asked, when, how and why would an attorney want to draw out a prospective juror’s attitudes, opinions and biases?
Is there ever a time not to do so?
The answer to this last question is yes. There is little value in helping one’s opponent to identify the juror biases and prejudices that will operate in your favor. If there is a potential “human bomb” that will hurt the other side and your opponent fails to detect and strike that juror, your chances of success increase dramatically.
For this reason, the biases you care about are the ones that can hurt you or that you’ll have to navigate around in order to win. The biases that help you are best left hidden. Thus there is a polarity to how one goes about the process of drawing out juror’s attitudes, opinions and biases.
Trial lawyers like to talk about potential juror’s “baggage,” meaning the aggregate effect of a person’s life experience and how it will skew or distort the manner in which they perceive information and respond to it. There are two kinds of baggage: the kind that people are aware they have and the kind that they do not know about. Both are important, but it may surprise you to learn that the baggage people do not know they have is actually more important to you than the baggage they know about. With a little explanation and a few thought experiments, the reasons for this become clear.
Trial lawyers do well when they understand the mechanics of human sympathy, bias and prejudice. Understanding the theory of jury selection is often easier if extreme examples are used for the sake of underscoring principles, so we tend to discuss the simpler, more obvious extremes in human belief systems. Racial bias is usually the first to come to mind, followed by political ideology, gender-based stereotypes, religious beliefs, military or industrial indoctrination and a nearly unlimited ocean of subconscious reactions to associative thought processes.
It is possible to ask targeted questions that are designed to evoke candid responses and to tailor those questions in such a fashion as to seek out beliefs that operate against your case rather than against your opponent’s case. A simple example would be asking, when representing a defendant in an action, whether any person (including their family and close friends) have ever brought suit or made a claim for compensation of any kind. Ask whether they have ever been injured, whether they have ever made a workers compensation claim, whether they have ever been denied medical care, whether they have ever wanted to sue someone.
But don’t ask if they’ve ever been sued. If they have, that may make them much more likely to identify with your defendant client and it is typically (though subject to many exceptions) better if that fact does not come out. You have to know if they’ve ever been a plaintiff, but you can get by without knowing if they’ve ever been sued.
A tough judgment call, but in this extremely simple example, one that is not that hard to make. Of course, other indicators and indicia of bias or emotional makeup might lead to a departure from this strategy, for nothing in voir dire is cast in stone. There are few absolute rules, and good judgment and instinct are your best assets.
Overcoming Challenges in Judge-Conducted Voir Dire
Until recently, most federal courts did not permit attorneys to conduct voir dire. A lawyer had to make decisions based upon purely neutral questioning. There was no ability to deliberately evoke responses on tough issues, and the questions judges posed were typically so plain vanilla that they created little in the way of useful responses from jurors, who are much more guarded when responding to a judge who questions them from the bench than they would have been answering questions put to them by affable lawyers from the much lower, closer podium.
Judges err in favor of keeping questionable jurors on the panel so that one must utilize peremptory challenges to strike them. Judges rarely develop their own challenges for cause. This is because they like to keep the process moving at a specific pace and do not want to appear biased in favor of the party they would be assisting if they developed and executed a dismissal for cause sua sponte.
While court-conducted voir dire serves the purpose of eliciting valuable basic information from prospective jurors, it rarely draws the deeper fabric of a juror’s personality into the light.
Federal courts that permit no attorney-conducted voir dire universally permit counsel to submit proposed voir dire questions. They ruthlessly cull out argumentative or superficially polarizing questions, so it becomes necessary for attorneys in such cases to be adept at the art of asking factual questions that are non-objectionable but which tend to reveal hints about a person’s position on the sociopolitical spectrum. Examples of such questions are:
- Are any of you members of a labor union?
- Do any of you own a firearm?
- Do any of you have bumper stickers on your cars? If so, what do they say?
- Do any of you belong to neighborhood watch programs?
- Do any of you actively serve on your neighborhood associations?
- Do any of you hold advanced degrees?
- Are you or any members of your family present or past members of the armed services?
- Have any of you volunteered to donate blood?
- Do any of you forbid your children from watching any popular television shows?
- Do any of you have experience with the Equal Employment Opportunities Commission?
- Do any of you have experience in drafting or interpreting written contracts?
- Do any of you have experience in health care or medicine?
- Have any of you had significant or important experiences with financial institutions, insurance companies, banks or credit unions?
- Have any of you been turned down for a loan?
- Do any of you have experience running a business?
- Do any of you have experience in politics, as a candidate or working on a campaign? (This is a notable exception to the general rule prohibiting inquiry into a juror’s political affiliation).
- Are any of you active in the stock market?
- Do any of you believe that it is unpatriotic to purchase a foreign-made car?
- Are any of you particularly skilled with computers?
- Do any of you have experience operating heavy machinery?
- Have any of you been hospitalized for more than a week?
- Have any of you been a victim of crime?
- Have any of you been fired from a job or employment?
The list goes on and on. There are many books and articles filled with such questions, so it is not necessary for this article to list them all.
This author once met a lawyer who specialized in defending asbestos claims, in which laborers (typically blue-collar workers from mills, plants, mines and shipyards, etc.) develop a host of life-shortening, agonizing diseases such as silicosis, mesothelioma, cancer, asthma, bronchiolitis and other diseases. That lawyer admitted that she was routinely “thrown to the wolves,” in that her corporate clients preferred to try, rather than settle, such cases. She had developed a strategy that was based on bringing jurors to understand that money would do nothing to change the situation, for asbestos has been rendered all but illegal in a nearly all applications, the companies that put it into the stream of commerce are mostly bankrupt, and the plaintiff is already deceased or soon will be. (These cases are different from other kinds of catastrophic injury cases because the life care plans for such plaintiffs, which project future medical care costs against a rampant level of medical inflation, are typically much lower than they would be in a case involving brain damage or paralysis of a younger person.)
Her strategy was to put the jurors in a state of mind in which the tragedy suffered by the plaintiff became blasé, part of history, old news, not worthy of drastic intervention or a big verdict.
“Mr. Smith,” she would ask, “what do you most want to be remembered for after you pass away?” Jurors would be stimulated in the direction of noble acceptance of death by such questions. All of us pass, and what matters is how we live our lives, rather than whether a company was forced to give money to our heirs. From such a platform, she would then go on to dignify both the plaintiff and the defendant corporation. She would talk about how corporations create jobs, and jobs are sometimes hazardous, especially when the risks of certain materials are not fully understood.
“Do any of you smoke?” She would ask. When a juror raised a hand, she would sympathize, promising occasional breaks for the purpose of grabbing a nicotine fix, and then she would ask whether the fact that smoking invariably shortens life stands in the way of that juror lighting up. If she could get another juror to display disdain for the smoker, she would then ask, in the most innocent manner, whether any of the jurors would be bothered by the fact that the plaintiff, who died of lung cancer, smoked for most of his life.
“Would you think that a person who did that is less likely to have been harmed by insulation than tar and nicotine entering the lungs several times per day at a temperature of nearly 350 degrees?” She did not ask, “Do you think a smoker is less entitled to justice?” but the effect of the question was the same.
She would often then exercise a peremptory challenge on the smoker, depending upon how he answered other questions, for she had labored successfully to create the doctrine of “he who smokes dies, and it is not my client’s fault. “We make brake pads, not cigarettes, she would say in closing argument. “Brake pads save lives. Cigarettes don’t. Mr. Devereaux and his wife knew that, but they smoked anyway. We wish they hadn’t.”
Trials are based upon polarization of jurors in the face of dichotomies. Dichotomies are opposites, such as black and white, good and evil, smooth and rough, and so on. Good and evil, responsible and irresponsible, fair and unfair — these are the typical dichotomies that lie at the core of a well-designed trial presentation. One of the most powerful tools a trial lawyer has is the ability to re-craft the issues in a favorable way. Instead of litigating whether asbestos is dangerous, this lawyer litigated whether cigarettes are dangerous and whether anyone should be rewarded for smoking, or at a higher and more subtle level, whether they should be given special treatment merely for being mortal.
A man who hates his fellow man for having darker skin may or may not be ashamed of that prejudice. Some neo-Nazi skinheads go to great lengths to advertise their shockingly abhorrent beliefs. Others have learned to keep such sentiments secret. Outright racial hatred, however, is such a dramatic and obvious example that its utility begins to break down, for spotting it is easier than detecting other, equally harmful but more insidious attitudes.
Some people will go so far in defending an extreme belief that they will polarize others against them. This author once listened patiently while a juror explained, in a weak and unconvincing manner, how good, benevolent and kind members of the police are as a rule. At first, because my opponent’s star witness was a policeman, I was inclined to try to shut that juror up and move on, but as he kept at it I observed that several other jurors were frowning. They were being driven away from this man’s belief system by the extreme and somewhat illogical way he advanced it. That case turned out well for my client, even though the policeman did a good job on the stand. During the trial, as the officer testified, I saw the same frown on the same faces that I had seen earlier. On cross-examination, I pointed out a few simple flaws in his accident reconstruction and the scantiness of the information contained in his notes. I did not eliminate him as a credible witness, but I gave the jurors who were already biased against police something on which to hang their hats, so to speak.
Getting Truthful Answers to Tough Questions and Spotting When a Juror is Lying
Once a lawyer has gained some jury experience, it becomes clear that placing a person under oath is not an effective truth serum. A person inclined or motivated to lie will do so whether under oath or not; the penalty for perjury is not an effective deterrent. In a major metropolitan area, dozens of cases are tried to verdict every week, and then each one of those cases, someone wasn’t telling the truth. Yet, how often does one hear about the witness being prosecuted for perjury? The plaintiff’s wife says the light was green and 11 other people say it was red. Does the wife go to jail? Of course not. A plaintiff denies having pre-existing injuries, but is forced to admit when confronted with earlier medical records that this is not so. The plaintiff may lose his case, but it is extremely unlikely he will be prosecuted for perjury. Prosecutors have neither the interest nor the resources to prosecute that crime in volume. It is difficult at times to tell when someone is lying as opposed to simply being mistaken.
There is a certain kind of sociopath who can tell a lie with utter conviction, for such persons lack the social programming that allows them to tell right from wrong. Further, high-level covert operatives and members of the special forces a routinely trained to lie convincingly. To them, lying is neither immoral nor dishonest if done for the sake of national security or survival in hostile territory.
Most people, on the other hand, experience a certain degree of stress when they lie. Whether motivated by natural inhibition, fear of being caught or a guilty conscience, most of us experience physiological reactions to telling lies, and some of these are visible to a careful observer. Typical physical responses include speaking in a deeper, more guttural voice and have some difficulty swallowing and generating saliva (this phenomenon has been dubbed “liar’s phlegm”), signs of shortness of breath, inability to hold eye contact, blushing (and particularly reddening of the ears, throat and cheeks) dilation of pupils, fixed gaze (sometimes referred to as a “thousand-yard stare”), unnatural gesturing and over-the-top mannerisms that dissipate nervous energy.
The famous fiction writer Jeffrey Dever publishes a series about a fictional police interrogator named Katherine Dance who is trained in the art of “kinesics,” which is the art of gauging truthfulness through observation of unconscious physical manifestations and careful listening to detect inconsistencies. The series is entertaining because the hero, possessed as she is with an abnormal ability to detect lies, possesses an enviable capability that all of us wish we had.
Interestingly, the ability to detect deception is not difficult to learn. It is, however, inherently unreliable, because many of the physiological manifestations of dissembly or concealment of the truth can be caused by other fears or sources of stress. A person confessing to an embarrassing truth will blush, look away and employ unusual or uncharacteristic speech patterns and mannerisms. For this reason, the special forces teach operatives to conceal their lies in admissions and confessions of benign but embarrassing items that make the telltale signs of untruthfulness appear natural, thus diffusing suspicion.
It is unlikely that an attorney will become so skilled in detecting untruthful answers from potential jurors if those persons are skilled liars because the attorney has no baseline behavior patterns to use as a basis of comparison.
With a mixture of close observation, trust in instinct and common sense, however, it is often possible to spot concealment or untruthfulness in most people.
The unusual situation is that of the prospective juror who lies to get onto the jury. Most lies are told to avoid humiliation or embarrassment, for the sake of self-aggrandizement, to avoid punishment, or to escape responsibility. While these goals are less malignant and less dangerous to a trial lawyer and those of a dishonest potential juror who is lying to get on to a jury (invariably a very dangerous proposition for the trial lawyer who is being lied to) lies told to protect biases and prejudices the potential juror knows are scorned by society must be detected. Reverting once again to our overly simplistic example of strong racial bias, a juror who professes to believe in equal rights regardless of skin color but who in fact harbors sympathy for the Ku Klux Klan is a juror that must be detected and ejected by an attorney representing an African-American. A juror who lies and conceals the fact that she is illiterate would not be appropriate to serve on a jury in a complex commercial case involving a substantial amount of documentary evidence. A juror who has filed a string of lawsuits in the past but who claims to sympathize with the interests of tort reform is a person who must be stricken from the panel by the defense attorney in a personal injury case.
Past experiences that are embarrassing enough to conceal tend to be emotionally charged, making them perfect sources of skewed perception. A woman who was molested by her doctor as a young girl may be too ashamed to speak of that experience in a court room full of strangers, but if she despises physicians on the whole as a result of her past experience, she would not be an appropriate juror, at least from the standpoint of the defense, in a medical malpractice action or a claim involving the assertion that a physician (or any other person in a position of trust) took inappropriate physical liberties with the patient.
Once again, close observation and inspection are the trial attorney’s best tools. The physical indicators of dishonesty are usually relatively easy to spot if the trial attorney is alert and attentive to subtle cues.
Some questions have a greater tendency than others to elicit untruthful responses. Asking a person whether or not they have ever mowed a lawn is likely to lead to a truthful response even from a sociopath or an antisocial personality. Asking a basically honest man whether he has ever cheated on his wife is a different matter. If he has done so, he is not likely to confess to the same in a court room full of strangers, particularly if he is confident that there is no way to verify the truthfulness of his responses. Of course, if a man is willing to cheat on his wife, lying about it seems like a smaller, less consequential sin.
Another interesting example arises if you ask a juror whether or not they have ever used illegal drugs or have been physically dependent upon any drug. While societal values appear to be in a state of flux, as evidenced by the gradual legalization of marijuana and the decriminalization of other drug offenses in any states, the stigma of drug use and drug addiction (including alcoholism) are common motives to lie. Discovering drug abuse and addiction in a potential juror’s life or history is likely to prove to be vitally important in most kinds of trials.
There are many reasons this is so.
Persons go through life concealing a drug problem live in a constant state of fear of detection, and they become unable to appreciate the inherent importance of truth. They tend to be unwilling to judge the credibility of others (even though an instruction on a juror’s duty to judge the credibility of witnesses his nearly universal in civil litigation), and may tend to side with witnesses who are obviously prevaricating, as an unconscious sympathetic wavelength of understanding tends to develop as a psychological link between a chronically dishonest drug user and the evidently dishonest witness.
People of similar ethical levels (or unethical levels, as the case may be) tend to resonate with one another. Individuals who see the world as you do tend to be more real to you. Furthermore, for people who live in a constantly dishonest mode, a justification mechanism tends to run unremittingly in the back of their minds. “Everybody lies,” they tell themselves. In order to make that true and acceptable, they tend to accept lies from other people even though they know better, for that is the structure of the fabric of the world in which they have chosen to live.
Returning again to biases pertaining to police officers, it has been said that the police are the interconnecting link between the honest, law-abiding citizen and the criminal, and so they carry a plague. Focusing day in and day out on the criminal side of human behavior, police officers are sometimes unable to avoid resonating with, and eventually emulating the behavior of the criminals who occupy center stage in the policeman’s professional life.
Is this true? I believe that it is, at least to an extent, and while I may not be correct, this is an example of a belief system that could influence how I would judge the credibility of a testifying police officer if I were a juror. This principle is likely to be true part of the time but not all of the time, yet if I were to fail to recognize that fact and instead treat the concept as a universal truth, I would tend to operate on the basis of a bias that could lead me to inappropriate conclusions and findings. Were that the case, it would then be incumbent upon you, as a trial lawyer, to spot and understand those mental mechanics during voir dire and take appropriate action before allowing me to sit on your jury. At the very least, it would be necessary for you to identify my belief system and tailor your presentation around it, at least to some degree, unless I were stricken as a potential juror.
From this we see that learning how the minds of your sitting jurors work is nearly as important as identifying the jurors who must be stricken for you to have a fighting chance at success.
Rehabilitating Potential Jurors that Might be Helpful to Your Client
Some judges operate on the basis of soundbites. Others look for deeper truths. When a prospective juror admits to possessing a bias, fixed opinion or controversial viewpoint, or even admits that he or she is likely to have difficulty being fair in light of the specific facts of a given case, grounds for a challenge for cause become evident in the record. Rulings on challenges for cause are typically viewed by appellate courts against an abuse of discretion standard (though there are some notable exceptions to this rule, such as when an attorney evidences an objective pattern of racial profiling in the use of peremptory challenges, which is impermissible and can serve as independent grounds for reversal without review of the trial court’s analysis).
If a juror has made an admission to a bias or prejudice that operates in your favor, it may be tactically advantageous to resist a challenge for cause, if for no other reason than to force your opponent to expend one of his challenges for cause. Doing so could prevent your opponent from being able to strike yet another juror who may be equally favorable to your side without having confessed to a bias or belief that would support a challenge for cause.
Is it your obligation as an officer of the court to concede to the dismissal of any juror who may be biased, regardless of whether it is tactically in your client’s best interest? Discussion of that question will typically earn you an hour of ethics credit at a CLE, but it will probably not be worth your time and attention in the heat of battle. The adversarial system requires you to fight for your client as an advocate. It is the job of the court — rather than yourself — to determine whether or not a prospective juror’s attitudes, beliefs and biases (which all of us possess to a greater or lesser extent) is grounds for disqualification from jury service. Americans enjoy not only the right to a jury trial, but the right to sit on a jury if they are so qualified.
While there are circumstances extreme enough to cause me to concede to the dismissal of a potential juror who would likely be favorable to my client’s side of the case, in most circumstances the decision will be purely tactical. I may stipulate to the excusing of a juror for simply mathematical reasons. I may also stipulate in order to appear reasonable if I believe that dismissal is inevitable. Lawyers are always trying to maintain credibility in the eyes of jurors, and I am no exception, but I am at least honest enough to admit that sometimes my tactics and artifices are less than noble in their origins. Candor of this kind is essential if one is to teach effective litigation tactics.
Deliberately facilitating a miscarriage of justice is inconsistent with the duty of candor owed by an officer of the court. As serious as that sounds, failing to fight your hardest in the advocacy of your client’s cause may rise to the level of malpractice. A trial lawyer’s only real tool to skillfully walk the tight rope between these sometimes opposing principles is to be fundamentally honest and possessed of good judgment. When it comes to jury selection, however, it is usually better to trust in the judgment of the court and to continue to wear your hat as an advocate, rather than to abandon your post and usurp the function of the judge.
In the American system of justice, each participant plays a vitally important role and these roles differ. If a juror feels compelled to advocate for a particular side on some basis other than the evidence and the law, bad things will happen. It is not for the juror to try to assume the role of lawyer or judge. Similarly, the trial lawyer must be an advocate, rather than judge or juror, for the system to operate as it has been designed. The duty lawyers owe the court is higher, at least in the eyes of many scholars, than the duty owed to the client, and the duty owed to the client is sacrosanct. How does one resolve such a philosophical dilemma?
It is often easy to reconcile conflicts in these duties by recognizing that the duty owed to the court is often exactly the same as the duty owed to the client: to act effectively, ethically and honestly while fighting as hard as possible for your client. That is your job. So make the other side use his peremptory challenges by fighting to rehabilitate a juror who is favorable to your side but who is in danger of being challenged for cause.
The best way to do this is to question the juror in a fashion to elicit a promise that the juror will be fair and impartial. Get the juror to agree that he or she can set aside any biases or pre-existing beliefs and follow the law as it is given by the court, while diligently weighing the evidence. Get the juror to admit that there are two sides to every story, and that there may be more than one way to view the evidence as a general proposition. Get the juror to promise that he or she will be attentive and set aside past experiences, realizing that this case is different from any experiences they have had in the past. Get the juror to agree that every situation is different and that it is his or her job to be fair and impartial, and to promise that they will do so. Finally, get the juror to admit that he or she is confident that they can set aside their biases or opinions derived from past experience. If these things do not work, it is unlikely that any other tactics will, but be aware that it may be in your best interest not to be seen fighting too hard on this point, for it can carry the appearance of slick gamesmanship and shifty maneuvering; these are things to which jurors tend not to respond well.
Setting Unfavorable Jurors up for a Cause Challenge
Most people are unwilling to admit that they are unable to be fair in a given situation, but if you obtain a clear, unequivocal statement from a juror that because of some belief or life experience your client will be coming into court as an underdog, there is a good chance the court will strike that juror for cause.
Obtaining such admissions is done on a gradient, in a stepwise fashion, with each question building on the last. This is a time when leading questions are not a bad idea, but be careful not to overuse them, for it could appear to the court that you are putting words in the juror’s mouth, so to speak.
Start with questions about specific past experiences, and move from there to how a juror was adversely affected by specific events. Once that has been developed through a series of gradually more poignant questions and answers, move to questions of how the juror felt afterward. Timing can be delicate during such an examination, for when a person reaches a form of reverie (re-experiencing a memory as though it were taking place in present time), they are susceptible to penetrating questions asked without preamble.
In the defense of a claim of sexual assault on a patient by a psychotherapist, an examination very close to the one scripted below took place after a potential juror admitted that he had had bad experiences with doctors in the past. The juror admitted that his sister had been physically handled in an inappropriate manner by a family practitioner when she was twelve. It would have been easy to challenge that juror for cause, but doing so prematurely would open the door for an easy rehabilitation (using the above techniques) by my opponent.
“And so how did you feel about doctors after he did that to your sister?” I asked.
“I hated them.”
“Do you still feel that way, if only a little bit?”
“Yes, I suppose I do,” the juror conceded.
“You love your sister very much?”
“Of course.” The juror’s eyes became misty. This was clearly emotionally charged subject matter.
“And what he did to her was . . . well it was just wrong, wasn’t it?”
“Did it affect her in a negative way?”
“Are you kidding me?” the juror responded. “She had nightmares after that. She stopped eating for a while.” Now we have new, compelling facts in the record that make rehabilitation of this juror less and less likely. We are peeling away the skin of an onion and getting to the raw truth, which requires an ability to discuss uncomfortable subject matter with strangers in a public setting. Skills such as this are part of why people hate lawyers . . .
“And you felt that he misused and abused a position of trust as a doctor?”
“He made her a victim.”
“He did.” By now the juror’s lips are clamped shut and he is wringing his hands.
“And doctors should not do such things.”
“No. No, they shouldn’t.”
“But he did.”
“Yes,” the man is whispering now.
“And did that horrible injustice leave a stain on the lens through which you see life?”
“Say again?” Though the juror understood the question, the unusual wording broke my cadence, which was intentional, for it cemented his view of that situation by yanking him back into the present.
“Your life was forever changed?”
“Yes, it was.” Firmly stated, with no equivocation or doubt.
“And here you sit, with those memories and feelings, which are still raw, isn’t that so?”
“It is. Yes. That is true.”
“Your Honor, may I approach the bench?”
The Court: “No need, Mr. Godfrey. Mr. Smith, is there any objection to the dismissal of Mr. Jones?”
Knowing When to Consent to a Challenge for Cause
Carrying forward from the scenario developed above, Mr. Jones should know better than to even try to rehabilitate that juror. There is no chance of success and he is likely to suffer a loss of credibility in the eyes of the other jurors if he even makes the attempt. He has to let this one go. Even if he were to succeed, that could be the basis for reversible error, and if he thinks he has a good case, “injecting error” is not in his best interest.
Therefore, as described above, the three primary instances when it would make sense to consent to a challenge for cause are (a) when something about that juror is unusual and renders him or her so unpredictable that your client, as far as you can tell, might very well be better off without that person on the jury; (b) when your credibility would be ill-served by your resistance to such a challenge; or (c) when the record is so clearly made that keeping the juror on the panel has the effect of introducing error in a case you believe you have a reasonable possibility of winning.
Strategies for Preserving Your Peremptory Challenges
The provided above demonstrate how it is possible to develop and amplify upon concessions made by potential jurors with respect to their bias, partiality, interest in the outcome of the proceedings (directly or indirectly) or other bases by which they are unable to serve fairly and impartially. The key to this aspect of voir dire is to remember that regardless of how palpable a courtroom atmosphere or feeling may be, unless the words appear in the cold record to establish an objective basis for the dismissal of a prospective juror, appellate courts will labor to sustain the ruling of the trial court.
Therefore, it is essential to elicit explicit, specific and wherever possible objective testimony concerning facts and circumstances leading to fixed opinions, biases and prejudices a juror may have. It is one thing to capture a remark from a juror to the effect that the juror generally does not like lawyers, lawsuits, doctors or other groups of people. It is quite another thing to obtain testimony from a prospective juror regarding facts, circumstances or other historical events that are clearly and obviously related to major issues in your case or your client or witnesses. When those events and historical developments have been clearly described by the prospective juror on the record, that person’s comments with respect to their personal “leanings” carry far more weight.
Historical facts are objective; feelings and opinions are subjective. In order to obtain reversal of an adverse verdict based upon a trial court’s refusal to dismiss a biased juror, purely subjective statements of opinion, bias, belief or prejudice must be extremely explicit and unwavering. Appellate courts are reluctant to overturn a verdict merely because a prospective juror expressed some feelings in the jury selection process that might or might not evidence a true inability to be fair.
When in doubt, it is this author’s advice to obtain more, rather than less, testimony from a prospective juror on troubling issues.
Preserving the Record for Appeal
In order to have an optimum opportunity to make the record on appeal, it is often a wise idea to seek leave of the court to make the record in chambers. When a juror raises personal issues that could result in disqualification, it is likely that that person will be more willing to candidly and openly discuss the circumstances leading to his or her belief system if they are not speaking in front of crowd of strangers. Furthermore, although some judges become irritated with irregularities and proceedings that consume time during the trial day, most judges will treat proceedings in chambers to explore the specific biases of a particular juror as extraordinary departures from standard voir dire, such that these proceedings will typically not count against your time limit.
Requesting an opportunity to make an oral record other than through testimony of the juror can also be a valuable means by which to supplement your appellate record with respect to a challenge for cause. The fact that a demonstrable bias on some issue is obvious to you does not mean that it will be obvious to the trial court, or, more importantly, to the appellate court on the basis of the cold record. Therefore, explaining to the trial court on the record why the demonstrable biases and attitudes of that juror render him or her unfit for service on that particular case amplifies and emphasizes that bit of the record, and further demonstrates that the trial court was given every opportunity to correct the record, which is a requirement actively sought by appellate courts. Appellate courts are notoriously reluctant to overturn trial judges on generally discretionary rulings unless it is clear that the trial court was given notice of the error and an opportunity to correct the same.
Another aspect of preserving the appellate record that is relevant to keep in mind during jury selection arises in the context of courtroom irregularities other than what the prospective jurors say about their own attitudes. For example, objections to the manner in which your opponent conducts his questioning of prospective jurors should be made as they arise. While statistically less likely to service grounds for appeal, the record should detail such developments as overly emotional or argumentative questioning by counsel, impermissible references to specific evidence, details or factual matter (particularly if previously excluded in response to a motion in limine), or behavior on the part of prospective jurors that evidence is improper contact with opposing counsel, a party to the case, or impermissible access to external information.
One example of such a record derived from this author’s experience pertains to a juror who was seen chatting in a smoking area outside the back door to a courthouse. Opposing counsel and the prospective juror were each smoking cigarettes in this relatively small, confined patio area. Because this was the only place to smoke within two or three blocks of the courthouse, it would be easy to imagine the contact occurring innocently, but it was nevertheless improper. Attorneys and potential jurors or sitting jurors should never be in direct communication outside the protective and controlled environment of the courtroom; all communications with prospective jurors or sitting jurors must be on the record.
Having observed and ex parte, off-the-record conversation between this prospective juror and opposing counsel, upon returning to the courtroom at the end of a recess, I informed the court’s bailiff that I needed to make a record outside the presence of the prospective jurors so that the Judge would be aware of that before bringing the venire into the courtroom. When court was in session, outside the presence of the prospective jurors, I pointed out that I had seen opposing counsel in casual conversation with a prospective juror in the smoking area. The court asked opposing counsel if this were true, and he admitted that it was, but adamantly denied discussing anything about the case.
It was not incumbent upon me to highlight the appearance of irregularity and impropriety where there was no demonstrable harm done.
“Your Honor, I’m not accusing my opponent of intentional misconduct. It is true that he should have known better than to have any direct personal contact with a prospective juror, whether over a cigarette, a cup of coffee or a steak dinner. I realize that in light of the physical constraints associated with smoking near the courthouse, that smoking pad is a natural funnel where people naturally tend to strike up conversations with total strangers. But counsel should know better.”
In response to this, the court asked my opponent if he agreed with my remarks.
“I was there first, Your Honor, that juror joined me unexpectedly, and I left very quickly thereafter.”
So innocent, so inadvertent. Nothing wrong with that, is there? He did nothing wrong, did he? At a moment such as this, you have a second or two to preserve the record, or the Court may very easily dismiss the entire issue and simply bring in the prospective jurors.
“Your Honor, let me be clear. I’m not accusing counsel of seeking out ex parte contact with potential jurors. I’m complaining about the fact that a conversation was had. It may have been short, and it may have been harmless. But those possibilities do not cure the problem. The problem is that the juror is tainted. We don’t know what was said, but we do know that rather than hightailing it out of there when the juror arrived, counsel chose to finish his cigarette and start up a conversation while doing so. Or the juror did, and counsel obliged. Either way, innocent or not, it just doesn’t look right.”
The Court: “What is it you want me to do, Mr. Godfrey?”
“Dismiss that juror, Judge, and warn the rest not to speak privately with the attorneys for either side.”
Now the court has a conundrum. If he lets it slide, I have a basis of appeal unless counsel strikes that juror himself. I shouldn’t have to expend a peremptory challenge on this issue, and I can’t let the juror stay on the panel. Things just looked too friendly when they were chatting and smoking together. I have no way to know what kind of psychological seed was planted in that juror’s mind by the experience.
On the other hand, if the judge dismisses the juror, and tells the rest of the panel why he is doing so, then he casts opposing counsel in a potentially unfavorable light.
The judge is clearly aware of these implications, as many seconds pass before he speaks.
“Here’s what I’m going to do,” the judge says. “I’m going to interview the juror in chambers and find out what was said.”
As soon as he says this, he realizes that the interview will further skew the impartiality of the juror, because it emphasizes, rather than discharges, the abnormality of the event. Keeping in mind that preserving the record is my top priority at this point, I chime in.
“Do you think that doing so will make the situation even more focal in the eyes of that juror, your Honor. If we leave him on the jury, he’ll be tainted even in his own mind, because the event having come to your attention will make him feel as though he did something wrong. Which he did not.”
“Alright, Mr. Godfrey, you’ve made your point.”
At that point, the court brought the venire in, and addressed the panel.
“Ladies and gentlemen, something has come to my attention during the recess that requires an adjustment on the Court’s part. One of the jurors was evidently caught up in an inadvertent situation that is nobody’s fault, but these things happen from time to time. Mr. Lewis and juror number three, Mr. Romano, encountered one another in the designated smoking area behind the courthouse, and traded a few words off the record and outside the hearing of the Court or opposing counsel. That was an innocent encounter, I’m certain. However, we take the process of seeking neutral and impartial jurors so seriously in our system of justice, as a safeguard for the fairness of the process, that we follow certain rules very stringently. Therefore, while it pains me greatly to do so, I’m going to dismiss Mr. Romano. . . .”
The point of this example is that the preservation of the record on delicate and occasionally ambiguous developments is a task that requires surgical precision and, occasionally, persistence. Courts generally like to keep cases moving, by keeping things simple. The eruption of irregularities are disruptive to an orderly flow. The two times when a lawyer’s ability to extemporaneously and rapidly formulate significant and effective legal argument for purposes of the appellate record are most severely tested are in the course of live testimony and during jury selection.
Preserving your appellate record during jury selection is in many ways more challenging, because it is not governed by a clearly understood and well-documented set of rules (such as the Rules of Evidence, which are the wellspring from which most evidentiary objections and responses are made). Using words and phrases such as “tainted,” “appearance of impropriety,” “impermissible conduct,” are fine, and generally necessary to make a clear record, but do not forget to specify the relief you seek. Move to strike the juror. If there is a problem that comes up in jury selection with a particular candidate, in the absence of a motion to excuse that panel member, there is very little that will matter later on appeal. If the objection pertains only to the manner in which opposing counsel is conducting voir dire, then an objection alone may be sufficient.
Expert Use of Technology During Voir Dire
There are four general areas in which technology can be used in jury selection:
- Tracking information pertaining to jurors in order to facilitate decision-making with respect to the exercise of peremptory challenges (replacement for, or supplement to the use of paper grids and notes);
- Spontaneous research of personal information pertaining to potential jurors on the Internet (social media, databases and other Internet background);
- Visual aids (photos, diagrams, PowerPoint outlines);
- Experimental technologies for detecting emotional responses and truthfulness with bio-telemetry.
Jury selection utilities and apps.
I have been practicing as a trial attorney for nearly 30 years, so much of my trial experience was obtained before there was any such thing as an iPad. Having selected more than 100 juries (including the more than 90 trials in which I served as lead counsel), I developed a familiar, comfortable ritual of note-taking specifically designed for jury selection. Like most attorneys, I used an over-sized seating grid that I made myself from three sheets of notebook paper taped together in the back, together with two different colors of sticky note paper, colored pens and a separate notepad. I also developed a fairly elaborate library of easily drawn, easily recognized symbols that I could rapidly jot into specific points within the box for a particular juror.
Recently, though it took me years to develop that system, I have abandoned it. Instead, I have found two iPad apps that are far easier to use than my antiquated system. The Apple app store has more than two dozen jury selection apps. As of the time of this writing, my favorite is Jury Star, but I also like iJury. Before I used Jury Star for the first time, I practiced with it for about an hour so that it would become completely second nature and I would not have to think about how to do things on the iPad so that I could instead focus more of my attention on the jurors themselves.
Jury Star, like most of the apps for jury selection that are available on tablet computers, has a seating chart, which can be populated from a pre-existing list (assuming you obtain the names from the courtroom deputy sufficiently in advance of the arrival of the venire to type in the names), or filled in as the jurors are called into the jury box. With quick touch gestures, you can rapidly switch between the seating chart and your notes (which I keep in an app called Notability), a built-in list of board are topics which are linked to sliding colored bars to rapidly reflect juror desirability with respect to a particular topic or trait, and a number of other rapidly accessible utilities.
One of the things I like best about using an iPad to conduct voir dire is that I can receive a text message from my team members while I am at the podium. This permits them to notify me of specific urgent details they obtain from online research (discussed below) or their own thoughts and observations as I conduct my questioning. This operation requires some practice to become smooth and efficient, but the time spent in perfecting this ability is more than worthwhile.
Like all courtroom technology, practice makes perfect and backups are essential.
Live access to online profiles.
Most courts permit attorneys to access the Internet from counsel table during jury selection. Mobile Internet access is easily achieved with the use of most smart phones, provided the data plan supports that technology. Juror background is surprisingly easy to locate on the Internet, even without specialized skills, and there are jury consultants who specialize in online background checks and investigation of juror backgrounds. These consultants differ from the traditional jury consultant, who is more of a psychologist or philosopher, in the sense that these specialists obtain useful factual information.
Spokeo, Facebook, Twitter, Snapchat, Google groups, and LinkedIn are the best known social media sources, but there are literally hundreds of others. Most of those can be accessed with a simple Google search by an assistant or associate from the courtroom. The process can commence as soon as the juror’s names released by the courtroom staff.
The amount of time an attorney has possession of the names of prospective jurors before being forced to exercise peremptory challenges can vary greatly from courtroom to courtroom. In some courtrooms, juror questionnaires are collected in advance of trial and distributed to counsel as much as an hour or more before the venire files into the courtroom. This permits significant time for review of the questionnaires, identification of obvious “red flag” candidates, and online research into the backgrounds of at least some of the potential jurors. In some courtrooms, jurors are called from the general seating area into the jury box where they are questioned on the basis of their jury number, which makes it possible to form an educated guess regarding which members of a large venire are most likely to be seated by the time challenges are exercised.
It is probably a poor idea to overtly or conspicuously base questioning of potential jurors on personal details gleaned from social media or online background checks, for doing so is likely to offend or intimidate potential jurors and may be seen as an invasion of privacy (even though the information is usually made available online through some definitive effort on the part of the potential juror). Although it may seem counterintuitive, a person who goes to the length of publishing personal data on the Internet may be offended if that information is used in a way they did not expect, such as a business setting or courtroom procedure. This is an interesting nuance of human psychology. Many people forget but once personal data is placed on the Internet, it is available to everyone with a computer every minute of every day. Some people fail to consider this fact, and assume that only their close friends and family will access the information they place in a social media site or on their own blog or website.
That caveat aside, however, it is easy to envision a number of scenarios in which the use of personal data will assist in the formulation of questions as well as the determination of who to strike on a peremptory basis. For example, in the trial of a bad faith case, arising out of an insurance company’s denial of first-party benefits under a fire policy on the basis of an accusation by the insurer that the insured had committed arson, a consultant was present to rapidly research social media sites during the jury selection process. One particular potential juror, a female medical assistant in her mid-40s, had posted a number of photographs of herself pushing a wheelchair-bound friend who had been severely burned in an arson fire. Thinking that the subject of arson would have special significance to this person given her close relationship with an arson victim (which could theoretically make her side against my clients, who themselves were accused of arson), it became necessary to explore this subject without revealing that we knew these details about this potential juror. Lacking the time to gradually work into this subject, it was necessary to begin with direct, specific questions posed to this specific juror.
“Mrs. Lipton, if I may, I would like to follow-up on a response you gave earlier. I wasn’t quite sure exactly what you had said, but I managed to jot down in my notes a phrase that you used, and I would like to ask more about that. The words I wrote were, ‘the importance of helping those less fortunate than ourselves,’ or words to that effect.” In fact, the term the juror had actually used was simply “helping others,” but I wanted to move rapidly in the direction of helping victims. “Are you involved in such activities yourself, if you don’t mind my asking?”
She began to shift uncomfortably in her seat. It occurred to me that she was uncomfortable discussing her friend the arson victim, either because these are to protect that person’s privacy or because she realized from what she had heard about the case up to this point that being closely associated with an arson victim might be a significant matter in a trial involving an alleged arson. I have the definitive sense (which could easily have been the product of my own imagination) that she had intuited our research of her Facebook page.
“Oh, well… not really. I mean — well I do have — no. I don’t. I would if I had more time. Why do you ask?”
One of my favorite tricks to buy time is to reach for a cup of water, which I always keep on the shelf under the top of the podium.
“Was there ever a time in your past when you devoted your energies to helping people less fortunate than yourself?” As I said these words, I spoke in a slower, measured way, not taking my eyes away from hers for a second. I was probably making her a little bit uncomfortable, but by this time, I was operating on pure instinct.
“Well, yes. I don’t like to talk about it, though.”
“I understand. I really do. I hate to be rude and I hate to pry. I have a problem, though, because my job — in fact my sworn obligation as a lawyer — is to use this one opportunity that we are given in order to make sure that the system is well served by the correct choices we make in the jury selection process.” Translation: I need to find out whether I should strike you. This is your chance to get off the jury! “Could you maybe tell us just a little bit about it?”
“Well, okay. My best friend in college was in a house that caught fire. She was very badly hurt. She had skin grafts, and she couldn’t walk for a long time. Even today, she needs to use a cane, but she very rarely goes out of doors because of her sensitivity about her scars.”
“That is terrible,” I said, taking another sip of my water. “As you know, this case is about a house fire, and an insurance company that would not pay for the damage.” For a moment, I considered asking outright whether the fire had been caused by arson, but I thought better of it. “Did your friend have any problems with any insurance company?”
This is where things took an entirely unexpected turn.
“How did you know?”
At that moment, opposing counsel jumped to his feet.
“Your Honor, may we take the rest of this up in chambers?”
The court readily agreed with that suggestion, and a few minutes later we were seated around the table connected at the short end to the edge of the judge’s desk. The prospective juror informed us that her friend had been married to a man who had once been accused of arson, and that on that basis, the insurance company had delayed payment for the house by nearly 2 years, and that her friend had been forced to hire an attorney to get the matter sorted out. At that point, counsel for the insurance company moved to strike the juror for cause.
My first reaction to this was that, while I had been trying to uncover a “human bomb,” as I have used that phrase above, the tactic had backfired because the juror could’ve been very helpful to my side of the case. Upon a moment’s reflection, however, I realized that I may have helped my client’s cause, because this juror could easily have gone against me. Within a couple of moments, I found out that this was indeed the true state of affairs. The juror told us that, even though the insurance company had eventually paid her friend’s claim, she was absolutely certain that her husband had started the fire to obtain insurance proceeds, not realizing that his wife was in the house when he did so. The husband had never been prosecuted, and the insurance claim was paid, but the juror’s friend was scarred for life by conduct of the very kind my clients were being accused of in that matter.
As you might expect, no sooner were these words uttered then my opponent withdrew his challenge for cause. I made my own. It was immediately granted, and we returned to the courtroom.
From that point on, I have always appreciated the time and opportunity to do online research of potential jurors when I have had it.
Of course, when researching the background of a particular juror online, it is important to avoid accidentally relying upon information pertaining to a different person with the same name.
It is not common for attorneys to use visual aids in jury selection. Most judges have a visceral reaction against such an idea, particularly if one party objects. The basis for such a bias against using presentational technology during jury selection is that the jury should not be shown exhibits, hear evidence or even learn much of the detail about a case until after a jury has been seeded and sworn in, and even then, the delivery of information is strictly regulated according to the procedural structure of the trial and the rules of evidence.
Recognizing that it is rare, however, the use of visual aids during jury selection is not entirely without precedent. If the parties stipulate to the procedure, it is much more likely to be permitted by the court. It is much more likely to be accepted in a complex, lengthy case involving large amounts of evidence and complicated issues.
In this author’s experience, attempting to employ the use of visual aids in voir dire is simply not worth the effort, because the distraction of doing so detracts significantly from the most important three skills an attorney must use in selecting a jury: listening carefully, watching carefully and rapidly adapting to a fluid conversational situation. Attempting to interpose the use of PowerPoint, enlarged charts or diagrams, or even an easel with a large pad on it, simply isn’t worth the distraction.
Following the structure of the discussion at the outset of this paper, it is worth pointing out that those who are proponents of the use of visual aids in jury selection typically fall into the school that favors using voir dire as a persuasive tool rather than a means of detecting “human bombs,” or hopeless-case potential jurors who can never be convinced of a particular case and must be detected and stricken during this limited window of opportunity.
In addition to these areas, covert video thermography is an experimental subject technology involving the use of infrared cameras and sophisticated software to measure changes in surface body temperature which can assist in gauging the truthfulness of juror’s responses and/or emotional responses to questioning. This technology is in its infancy, and is not typically authorized by courts. Video biometric analysis of involuntary facial muscle response has also been tested experimentally. As of the time of this writing, this author is unaware of any demonstrable success associated with use of these technologies in actual trials; for that matter, this author is further unaware of any court authorizing the use of these technologies in an actual trial.
Both of these methods have been used with demonstrable success in an experimental fashion with mock juries. Bio-telemetry (the use of galvanic skin response sensors, pulse oximetry and cardiac monitoring, optical measurement of pupillary response, and respiratory sensors) is a rapidly advancing technology. Instrumentation for bio-telemetry has yet to become readily available in a form that will operate covertly at a distance of more than a dozen feet. This author has had experience with the use of bio-telemetry in mock jury proceedings and focus group experiments which have produced surprising results, revealing emotional responses to questions, subject matter areas and evidence that opened the door to new thoughts about jury selection demographics, trial themes and presentation, and juror questioning and selection.
Advanced Jury Instruction Tips
Some key areas this author has found to be repeatedly worthwhile for exploration with a jury include inquiry regarding whether a juror, if outnumbered by all the rest of the people in the room on an issue about which the juror has an honestly held opinion, would have given in simply because of being outnumbered. This author practices on both sides of the bench, but has obtained substantial experience in defending civil cases, and in the defense of a civil case has found that it is better to reinforce the plaintiff’s obligation to convince every member of the jury in reaching a unanimous verdict. By asking questions of this type, a seed is planted, which is that you should not change your mind on a proposition merely because others disagree with you. With that particular seed planted in the minds of each and every potential juror, the likelihood of a mistrial goes up almost to the same degree that the likelihood of a plaintiff’s verdict goes down. These questions simply enhance the burden of proof in the context of a requirement that the jury verdict be reached on a unanimous basis.
Another favorite topic of routine questioning I have found to be worth remembering is the question of whether potential jurors might be influenced by their friends and family who will think of them if they enter certain kinds of verdicts. When on the plaintiff’s side, I like to ask whether jurors have friends or family who have expressed criticism of lawyers or the court system. This is notably different then asking whether a potential juror has friends or family who have brought a lawsuit or who have been injured. The key to this differences to follow up with, and discuss openly, the question of whether a potential juror will be influenced by what they think their friends and family will think of them if they find for one side or the other in any given kind of case. This last component avoids the prohibition against seeking promises from a juror about how he or she will rule in the face of certain evidence, but takes into account the fact that some jurors are simply unable to sit fairly on a personal injury case, for example, because they are surrounded by friends and family who are avid proponents of tort reform. The same principle can be applied by the defense, because there are also people who fear reprisal from siding with an insurance company, a corporation or other deep pocket. In this author’s experience, however, this other prejudice is much more rare than that associated with the adverse reaction to litigation generally that has been instilled in the population as a result of political dialogue and insurance lobbying. The details of this type of questioning are not as important as simply recognizing that social pressure is just as much of a factor that can influence a juror’s decision as his or her own innate biases, and this should be the subject of some extensive questioning at trial. Sometimes it is difficult to pry open this particular area of discussion and obtain candid responses, so more directed and focused questions are often necessary. For example, asking whether a particular prospective juror has friends or family who have voiced opinions about the jury system, lawsuit abuse or other “hot buttons” (fill them in expressly) is a good way to begin.
I also like to ask jurors if they are capable of following the law even when they do not wish to do so. The entire branch of questioning that flows from this opening inquiry splits into two broad segments. One of these is designed to discover whether jurors have a particular area of disagreement with the law as they understand it, from which it is possible to ascertain something about how they will see the case as a whole. The other branch of this line of questioning is designed more to plant the seed in the minds of the jurors that they can expect to receive jury instructions that will trouble them. In a case in which the law favors the opponent but the facts favor your client, this branch of questioning can be useful, noting that it falls more within the persuasion rather than the detection objective, as these are explained above.
Extracting Information from Potential Jurors and Planting the Seeds of Your Clients’ Themes
In order to understand the subject, it is important to realize the importance of theme in the development of a trial presentation. The word “theme” is often understood to mean only the main idea or topic of a presentation, but in the context of courtroom advocacy, takes on a more theatric meaning. In this context, the concept of theme relates more to a structure or system of belief regarding a particular subject then an abstract idea. When writing a paper, a theme could be expressed as simply as, “Only You Can Prevent Forest Fires,” but an example of a trial theme would be a value-based principle or group of ideas.
The vast library of manuals, books, articles and CLE materials describing newly-minted schools of thought for trial lawyers is growing exponentially — primarily due to the potential for commercial gain associated with the development of a hot new trial method. One particular method developed a few years ago stressed the importance of appealing to the more basic survival instincts of jurors, and was advanced in litigation of plaintiff’s personal injury cases. Ostensibly tapping into the overwriting power of the limbic system of the brain (the primordial organs at the core of the brain, also referred to as the “lizard brain,”) the primary theme of this trial method is essentially, “punish the defendant or you are at risk yourself, because the defendant is dangerous to all of us.”
More able counsel typically develop themes that are more closely tailored to the specific facts and issues of the case. Keeping in mind that the issues should be framed around the facts (though most inexperienced trial attorneys tend towards the reverse of this, at least in the early stages of their careers), it is possible to influence how a jury sees that body of evidence by controlling the lens through which they view it. That lens is the value system that has been brought to the forefront of their consciousness for use as a measuring stick. Skilled trial attorneys have a way of tapping into the deeper, more firmly rooted life experiences shared by all jurors in order to bring forth a conscious awareness of an intimately held value, which then becomes the latticework around which the vines of persuasion creep and grow during trial.
For example, in a case involving a claim the hospital had wrongfully terminated a risk manager on the basis of her age, the jury was quick to concede during voir dire that the elderly require protection from unfair stereotyping, bias and prejudice, and that for that reason, the Age Discrimination in Employment Act is a worthwhile statute. Defending the hospital, it was necessary for me to develop a theme with deeper roots that would eclipse these noble notions that otherwise might have been the foundation of a substantial verdict against the hospital. It was necessary for me to inject a new theme into the case, beginning with voir dire and caring through the opening, testimony of all witnesses, and closing argument.
There were many possible ways this could be done, and many potential themes that could have been used for this purpose. One might have been that employers who are fearful of litigation are faced with the Devil’s choice of either not hiring or living with incompetent workers indefinitely. That theme has proven to take root readily in the minds of most jurors, at least in the states in which this author practices. Another theme might have been that hospitals, unlike most businesses, must be given extraordinarily broad latitude in the selection of personnel because of the life-and-death nature of Hospital business and the dictates of public health. Yet another theme might have been that the plaintiff was a fundamentally incompetent, dishonest and dislikeable individual (which would have been difficult, but not impossible, to prove).
I chose a completely different theme than all of these, though each of them had some cameo appearance in the course of my cross examinations. The theme I chose was this: we are in danger of having every aspect of our lives controlled by thought police. I fully realize that as you read these words, you may be thinking that this was a bit amateurish or over the top — and it would have been, if not developed gradually and with a delicate hand. Anything that develops gradually at trial needs to begin early in order to be fully present by the time the trial is finished. Hence, this theme was introduced in voir dire through questions very similar to the ones that follow:
“Now, we spoke earlier about how the law is becoming more and more complex, and whether it has in fact become too complex. But what I want to ask about now is this: if the law were to take control over how people are permitted to think, what would our society be like?”
After giving the jury a few minutes just to contemplate that question without pestering anyone for an out-loud response, I posed another question, which was also intended to be more rhetorical than active. “If you could be sued or jailed for evil thoughts, would you?”
At about this point, the court asked me where I was going with this. I suspect he knew, but was troubled by the unusual nature of this questioning, which could be aimed at persuading the jury to ignore the law from the outset. As an officer of the court, this author would never openly advocate any tactic that invites jurors not to follow the law. However, there is a big difference between advocating how a jury applies the law to the facts (or how they should find the facts in light of the law). For example, if a killing was in self-defense, it is not necessary to convince a jury that murder should be legal.
“I’m simply asking whether they think illegal thoughts, Your Honor.”
“Mr. Godfrey, please approach the bench.”
This was perfect. The jury would be given a few moments to contemplate these troubling ideas, rendering their mental soil fertile for the seeds of my case. At the bench, the judge admonished me to stick to the issues of the case and I answered by stating that in voir dire, getting into the issues directly is usually not permitted. The judge sighed and simply asked me to keep my questioning on track. I promised him I would, and I meant it.
Upon returning to the podium, I asked, “When you first learned that you had been summoned to jury duty, did you expect to be asked personal questions, Mrs. Davis?” She said that she had. “Did it trouble you to think that some of the questions would pry into your mind and that you would be judged by what you think about various things? Opinions that you have?” She admitted that this was also true. “But, Mrs. Davis, as long as nothing bad can happen to you no matter what you think about something, isn’t it okay just to ask you what is in your thoughts?” She agreed that this made sense, in the context of picking the jury, but I could tell from her body language that she got the point. As long as no liability can attach for thinking improper thoughts, it is okay just to have a look into a person’s mind.
I did not begin this line of questioning until I was nearly finished with my voir dire, because these questions would naturally stifle the candid dialog that I had worked so hard to develop. This line of questioning was akin to a surgeon closing an incision once an operation is finished. Don’t stitch the patient up until you are sure you are done. Be sure to count all of your clamps and sponges before you suture.
When it came time to give my closing, I tied up this theme, harvesting all the crops I had planted in voir dire and during the examination of witnesses.
The jury instruction in an ADEA case requires the plaintiff to prove that she was terminated on the basis of her age even though she was otherwise qualified and performing in a satisfactory manner. This means that the plaintiff must prove that impermissible consideration of her age was a “substantial factor” in an adverse employment decision. The employer is given a chance to demonstrate a legitimate non-discriminatory basis for the termination, after which the the plaintiff must show that this basis was a “mere pretext.” The word “pretext” means that the reason given was not what was in the mind of the defendant when he made a business decision, and that instead he was harboring thoughts that the law has deemed evil.
The court is not instructing you to read the defendant’s mind, or even to try. Rather, what these instructions tell you is that if the plaintiff fails to prove to you what was in the defendant’s mind, the plaintiff must lose this case. The president of the hospital is going to make this easy for you by telling you exactly why he fired the plaintiff. The plaintiff will ask you to ignore what he says under oath and simply conclude that he is a liar. Then he will paint over Mr. Kennington’s reasoning with his own ideas. When we start down a path on which a person can be liable for thoughts even though his actions are perfectly legal, we enter into a Brave New World. You as a jury are a powerful, potent force in society. You can stop this from happening.
The fear of thought police is primordial, believe it or not. How we evolved to hold that fear so deeply ingrained, I do not know. But I do know this: I won that particular case, and I could see on the faces of the jurors throughout the trial that this particular trial theme utterly eclipsed the notion that older workers need to be protected from discrimination.
Strategically Addressing the Negative Points of Your Case
There are very few absolutes in this world, but one of them is this: every case has its flaws. We know this because cases that have no flaws are almost invariably settled rather than tried, at least within the domain of civil trial practice. This means that one of the most important things you can do during voir dire is to begin to handle the weak spots in your case.
Setting aside the notion that, from the standpoint of trial presentation architecture, it is surprisingly often what looks like a flaw in a case can be turned into a strength by a creative lawyer, and the obvious truism that it is better for the jury to hear about your weak points from you rather than your opponent, it is important to recognize that voir dire carries with it an opportunity to address negative points in your case in a fashion that not only turns them into old news by the time you give your opening, but also opens the door to surgically focusing your search for “unsalvageable” jurors on the issues that are most likely to trigger their dangerous reactions. In other words, in the hunt for those jurors that must be stricken because they cannot be persuaded, it is best to use your weak spots as a stalking horse.
The best way to begin this line of questioning is to start with questions that are specifically tied to the weak spots in your case, but which are designed to explore the extent to which a juror is capable of placing himself or herself in the shoes of your client under similar circumstances. This type of questioning serves both the detection and persuasion objectives described above. It opens the door for a juror’s response to an unfavorable portion of your case while at the same time testing the mechanism by which that part of the case might be successfully managed by you during trial.
Some examples of this introductory type of questioning are as follows:
If your client has an odd way about him, you can ask jurors whether any of them were ever teased when they were kids because of any of their own odd mannerisms.
If your client ran a stop sign, you can ask the jurors whether any of them have ever had someone try to take advantage of the them after they made a mistake.
If your client misread a CT scan and failed to spot a developing tumor, you can ask the jurors whether they believe that lawsuits are a cure for cancer, or if anything can cure cancer for that matter.
If your client wrongfully denied or delayed insurance benefits, you can ask the jury whether any of them have ever been late in meeting an obligation.
When jurors respond negatively, you have not only begun together priceless information that will be of immeasurable value to you when you decide who to strike, you also open the door in the minds of the remaining jurors to the idea that there can be more than one way to look at evidence.
How to Plant Favorable Perspectives (and Avoid Unfavorable)
As with everything else we have discussed thus far, examples make the abstract more concrete. Imagine a case in which a college student is sued by a police officer for injuries sustained by the officer during the arrest of the college student. Imagine further that the entire event was videotaped by a neighbor with a cell phone, and the videotape shows the defendant moving into the officer’s personal space, standing literally inches away, practically nose-to-nose with the officer before the officer decides to physically subdue the student. The weak point in that case, from the standpoint of defending the student in the personal injury claim brought by the officer, is that the videotape could be viewed as evidence that the defendant behaved in an intimidating or threatening manner, thus justifying the officer’s decision to exercise physical force, which in turn led to his receiving injuries.
How to deal with that segment of video during voir dire is a question that requires one to realize that how it will be perceived by the jury can be controlled by providing context before they even see the film, and that the significance of what they see may be significantly influenced by the context. Without going too deeply into the evidence itself, or even discussing the videotape, simple questions can “poison the well,” so to speak with respect to the plaintiff’s reliance on the video to prove that the defendant behaved in a threatening manner and thereby produced the physical altercation in which the officer was injured. Here are a few of the questions one could use for that purpose:
“Would it be fair to assume that everyone in this room has been to an outdoor party?”
“When there is music playing and everyone is speaking in a loud voice, it can be very hard to hear what people have to say, can’t it?”
“Simply to appear polite, have you ever nodded attentively while someone was speaking in a loud environment even though you could not make out most of what they were saying?”
“If you were being spoken to by a police officer, you probably would not do that, would you? If you were being spoken to by a police officer who spoke quietly in a noisy environment, would you want to get close enough to hear and obey what the officer said?”
“Might you assume that he would understand that background noise, coupled with your respectful attentiveness to what he was saying as an officer of the law, is why you are stepping closer while he is speaking?”
“Might you think it rude to simply tell him to speak up? Might you move closer so that you could hear what he was saying unless he was speaking loudly?” Note that here, by asking what they might do, we are tacitly seeking pre-approval for a given choice of conduct even if it is not the one they would use. Asking jurors what they would do can be psychologically very different from asking them what they might do. If they will admit that they might have done a certain thing, it can be very difficult for the other side to thereafter persuade those jurors that that course of action is the basis of liability.
Having asked questions of this kind, the seeds of doubt were planted from which a jury might dismiss the importance of the video showing the defendant moving closer to the police officer. Those seeds could then be watered and cultivated by cross-examination questions during the plaintiff’s case. For example, with that portion of the video frozen on the screen while the officer is being questioned, one could ask, “He never touched you, did he, officer?” then, “He never shook his fist at you, never made an obscene gesture, never punched you, never pushed you, never screamed or yelled in any way?” And finally, “We don’t hear a word you are saying on this video, officer due to all the background noise, do we officer? You weren’t speaking very loudly, were you? You were not yelling at him, either, were you?”
After this line of questioning, a virtual coup de grace comes with questioning about how police officers are trained to de-escalate situations, particularly involving the invasion of someone’s “personal bubble” or personal space. “with that training in hand, might it be that if you had just taken a few steps back, and spoke more loudly, none of this ever would have happened?”
Without the benefit of the seeds for this line of questioning being planted in voir dire, this cross-examination could still be effective. However, performing this cross-examination in front of a jury that has, days earlier, envisioned themselves stepping closer to an officer to hear him over the background noise at a party is far more likely to succeed.
Asking open-ended, abstract questions that guide a juror through events similar to those of your case, bringing him to a point where he might do what your client did, you can drastically alter how otherwise harmful evidence might be viewed. The key is to create and control the context implied into the situation by the jury before they hear the evidence.
 This line was probably coined by Norm Crosby, who said, “when you go into court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty.” Read more at http://www.brainyquote.com/quotes/authors/n/norm_crosby.html#LSjET0x8ZE4B35ei.99.
 Rejection response is a term that refers to the natural tendency of people to reject anything they do not understand. It arises when people encounter people of different races walks of life, when they hear specialized lingo and nomenclature, when encountering organizations in fields not commonly understood by the average person, and to situations that have been “painted” with scorn, such as genocide, child molestation, the other party’s political beliefs and whatever your in-laws say or do.
 By “opinions,” we mean fixed or rigidly held opinions, beliefs and “life rules” (a sort of software people create as they move through life, adding bits and pieces here and there in response to difficult or painful experiences, which rules or precepts are designed to escape domination by dominating others, to make oneself right by making others wrong, and which operate nearly automatically by force of habit) that prevent a person from rationally and logically weighing evidence and coming to a fair decision. Everyone forms opinions, conclusions, speculations and decisions on a myriad of matters every day. What a trial lawyer cares about are opinions that never change, and which are a barrier to analytical thought or fairness. Examples of fixed opinions would be the beliefs that that no matter what he does, a Muslim is evil, or that anyone who rides motorcycles is good (or bad). An example of a life rule would be that all members of the opposite sex (and especially attractive blondes) are untrustworthy. The two are practically indistinguishable, except that fixed opinions are generally taught to one by others, while life rules are invented by the person in the aftermath of unfortunate or painful experience.
 Many lawyers, this author included, prefer to stray from the podium and occupy the space just in front of the jury rail. There are many reasons for this, but the simplest is that it is easier to build rapport at close range, speaking in a lower tone of voice, with one hand in a pocket and the other gesturing casually or waiving a pencil or pointer, than it is when orating (speaking to a crowd rather than to people as individuals) from behind the podium. The simple mechanics of jury selection, however, usually make it necessary for a lawyer conducting voir dire to spend most of his or her time at the podium so that he or she can have notes and seating charts at hand.
 As used here, the term “technology” refers to electronic technology. The term also refers to general know-how or specialized methods and practices.