SUMMARY OF TALK AT ITLA
FRUGAL VOIR DIRE IN 30 MINUTES OR LESS
I will look, your Honor, and endeavor to find a precedent, if you require it; though it would seem to be a pity that the Court should lose the honor of being the first to establish so just a rule. Rufus Choate (trial lawyer, 1799-1859)
I. ESSENTIALS
-- Understanding the complexities of voir dire - PowerPoint slide
-- Test drive your case with objective feedback - develop a case theme(s)
-- Two people for voir dire
-- Voir dire is your opening statement
-- The 80/20 rule -Process vs Product
II. GOALS IN TIME LIMITED VOIR DIRE
#1 Identify and disqualify the bad juror
Decide on the values and beliefs you do not want a juror to have. This can only be accomplished after dealing with your case theme. Get jurors to do most of the talking by asking opened-ended questions. Don't try to rehabilitate a bad juror. Since you are not looking for "12 fair and unbiased jurors," don't ask questions about "fairness" or "impartiality," until or unless you are pursuing a challenge for cause.
Lead bad members to open up, tell the truth, and commit them to language that makes the judge want to send them home. When a juror gives an answer that could be a challenge for cause, thank the juror for his honesty and say, "(name), is it okay with you if we visit (talk) some more about this later?" This brings temporary closure to the issue, so you can go on to other jurors. On the other hand, if what you find is a good juror for you, ask him "neutralizing" questions to allow the judge to keep him over any objection for cause.
#2 Get jurors to care about and identify with your client
Uncaring jurors are unpredictable. Uncaring jurors will punish your client with their verdict. Give the venire specific reasons why they should "care" about your client. Five simple words should and must be used,"this is an important case," because... Ask for JUSTICE and RIGHTING A WRONG and then use ingenuity to communicate your case theme. Be on the lookout for any on the venire who are the similar age and sex as your Plaintiff as they should be given preference. By selecting similar-type jurors, this will facilitate identification.
#3 Educate the jurors on a key point or two
In order for jurors to "care" about your case, you must educate them. Be honest and direct about your case facts, theme and outline of your case. For example, if your client (plaintiff) had four beers before the injury, ask jurors about life experiences with alcohol, e.g., "how many of you think anyone who has four beers should be punished forever by holding them responsible for anything and everything that happens for the rest of the day or night?" Tie the facts into your theme whenever appropriate.
III. STEREOTYPE
If you must rely on basic stereotype information, occupation appears to be one of the most important pieces of information that might tip you off to a person's values and lifestyle because of the vast amount of time people spend at their jobs. Age and then race are also important stereotyping variables.
IV. TIPS FOR PERSUADING THE JUDGE TO ALLOW YOU
ADDITIONAL TIME
-- Some judges who do not allow attorney-conducted voir dire have never been asked.
-- Affidavits from social scientists and jury consultants provide solid support for attorney voir dire.
-- Submit a Memoranda with argument of why you should be allowed more time selecting the jury.
-- Submit several questions you want the judge to consider. Judges often allow at least a few of the submitted questions.
-- Take advantage of a Supplemental Juror Questionnaire, if justified.
V. SIX QUICK WAYS TO SHARPEN YOUR RAPPORT
Try these immediate ways to begin building rapport with jurors:
1. Take a genuine interest in getting to know what's important to them. Start to understand them rather than expecting them to first understand you.
2. Pick up on the key words, favorite phrases, and manner of speaking that a juror uses and build these subtly into your own conversation.
3. Notice how someone likes to handle information. Do they like a lot of details or just the big picture? As you speak, feed back information in this same portion size. This is called "chunking."
4. Look out for the juror's intention - their underlying aim - rather than what they do or say. They may not always say it right, but expect their heart to lie in the right place.
5. Adopt similar body language, gestures, voice tone, and speed. Momentarily adopting something in the other person's demeanor, like head or body posture, voice speed, etc., forms a basis for better communication.
6. Respect the other person's time and lifestyle.
7. Be direct during voir dire:
"How do you feel about a lawsuit against a manufacturer who has not violated any regulations, standards or codes?"
"My brother says, no code violation means no lawsuit. My father says, the manufacturer has a responsibility to make the product as safe as possible regardless of the codes. Based on this information alone, who tends to lean a little more toward my brother? Who tends to lean a little more toward my father?"
"As part of this trial, we each have a job to do. My job is to bring you evidence so you can do your job to make a decision based on the evidence. Our time now isn't about trying to win the case but is about the attitudes, beliefs and ideas you bring with you into the courtroom..."
One of the quickest ways to establish connections early in voir dire is to ask easy questions of the whole venire which they can answer affirmatively. For example: "Before we get started on the individual questions and your answers, there are a couple questions for everyone. By show of hands if you would, please, 'If you are sworn onto the jury panel for this case, are you able to give both sides your complete attention over the next few days? If you are on this jury, could you do your job?' [Wait until all hands go up. Identify any reluctant or confused panelists.] Great, so we know that if you are seated on this jury, every person here will do their best to give both sides for a fair trial."
Verbally, identifying jurors with predisposition to your case must be accomplished in voir dire by asking questions that provoke specific juror reactions:
"How many of you feel like your doctors spend too much time with you?"
"How many of you think seat belts are just accessories, like car jewelry?"
"How many of you think contracts are meant to be broken?"
Refer to the "Drunk Driver" as an "Experienced Drinker."
VI. FINAL ANALYSIS
Have I pre-tried my case them? Use outside objective feedback. This is the basis for your voir dire.
Have I used demonstrative evidence including jury instructions effectively?
Have I shown empathy to a juror's situation, e.g., "will taking four days away from your teaching position and family be an undue hardship on you or them or your students?"
Have I made the jurors feel good about their answers, e.g., thanked them for their honesty and appreciated them for being your audience?
Did I communicate a genuine interest in what the jurors had to say, e.g., used mirroring, momentarily adopting something in the other person's demeanor, like head or body leaning, arrangements of limbs, voice tone, pace or volume for better connections) and paraphrasing?
Did I smile and act relaxed, e.g., did I make and review a video tape of my opening?
Did I listen between the lines for the real meaning of jurors' responses, e.g., can I quickly summarize what they just said in one sentence?
Did I get jurors talking while I listened, e.g., asked open ended questions such as, "tell me more about that."
Did I pay attention to important body language cues and differences between when the judge was talking to them, when the defense attorney was talking to them and while I was talking to them?
Did I talk with them in terms of their interests?
Did I make the jurors feel important?
Have I identified jurors receptive to my case?
Did my questions captivate attention and evoke feelings that something horrible happened to my client caused by something that the defendant did?
Did my questions weave in the major case theme?
Have I framed the issues (theme) the way I want?
Have I given the jurors a basis for identifying with my client and believing that this kind of thing could happen to them? When all else fails, select jurors of like sex and age as the plaintiff.
Have I carefully chosen words and phrases to convey the impact of what occurred? Are my questions distilled to the most efficient wording and do they communicate the essence of the theme?
