As a reminder of the purpose of this exercise, I have interviewed several lawyers with the same 8 questions about their theories and methods in approaching the most effective ways to voir dire a jury. Part 1 addresses goals, tactics, and effectiveness of a voir dire. This is Part 2, dealing with voir dire mistakes, methods, and advice. Part 3 is a non-lawyer’s perspective from a jury panel.
I have agreed to keep the identities of each of these litigators anonymous, but I still want to introduce you to the lawyers by way of their general practice type and jurisdiction: L1 has a civil defense practice in Alabama; L2 is a criminal prosecutor in Oregon; L3 has a general litigation practice in Pennsylvania; and L4 practices in commercial litigation and debt collection in Virginia.
How to Voir Dire a Jury: Questions on Mistakes, Methods, & Advice
Identify a common mistake you see in voir dire.
L1: Not listening to the responses. Too many attorneys get tied down to their questions and don’t listen to the responses they receive and miss some good follow-up opportunities.
L2: Acting like a robot.
L3: I’m making the mistakes, not seeing them. ?
L4: Exercising all your challenges early in the process could leave you with a nightmare of a juror.
What makes for an ineffective voir dire?
L1: Failing to connect and just going down your list of questions.
L2: Acting like a robot.
L3: Being too aggressive with pre-conditioning; getting argumentative right out the gate makes them dislike you and I’ve seen it hurt clients.
L4: Ineffective voir dire fails to uncover the prejudices of your potential jury. Not asking questions related to your issues.
What methods do you use to clue the jurors in on your theme or theory of your case during voir dire?
L1: I’ll ask questions that relate to my theme. If it’s a car wreck and you have some questionable eye witnesses, something like, “How many of you have ever thought you saw something but when you got closer to it, you were mistaken?” or if you client is accused of doing something wrong, “How many of you were every blamed as a child for taking a cookie out of the cookie jar, but you didn’t do it?”
L2: I just sort of ask them questions about the area. Like what does a drunk person look like? How do you know?
L3: Depends on the judge; some are very strict about staying within the boundaries. I try to present a statement of the case that is objective on its face but frames the issue in our theme/client’s favor. It’s not easy and I don’t always succeed.
L4: Repetition is the most important aspect of establishing a theme. Focusing on key issues related to the case at hand. EG; Personal injury case, focusing on issues related to uninsured motorists or something.
What is the single best piece of advice you have to offer about voir diring a jury panel?
L1: Think outside of the box with your questions and listen to their responses.
L2: Ask some easy relatable questions to get them going.
L3: Learn from the pros, watch as many of them as you can and take every opportunity to do voir dire that you can.
L4: Best advice I can offer is to be flexible, thorough, and don’t waste your challenges early.
Please feel free to comment with suggestions on voir dire methods, mistakes, and/or advice. And don’t forget to come back Thursday for the non-lawyer’s perspective.
If you enjoyed this article, you can find more content like it in my new book Building a Better Law Practice.
Buy the book at ShopABA.org, but be sure to subscribe to the blog for your 20% discount.
Photo by Mordy Steinfeld.