Voir Dire Is Hard (A Recent Trial Experience)
The plaintiff goes first
Counsel for plaintiff gets to voir dire the jury first. He has the opportunity to charm them and impress upon them his theory of the case. He gets to ask questions that evoke their sympathy. They can commiserate with the plaintiff because they too have had chronic back problems. Of course, the jury may not be empathetic about the plaintiff’s back problem. In this instance, several jurors suffered from back pain, but they weren’t taking opioid pain medication and they weren’t considering undergoing surgery. These jurors were just going about their lives dealing with their issues.
The accident that was the subject of this case occurred when a woman pulled out in front of the plaintiff while he was driving his motorcycle. He struck the side of her vehicle and cartwheeled over the top until he eventually collided with the pavement. There were several jurors in the panel who rode motorcycles and were sympathetic with the plight of drivers not seeing or even looking for motorcycles.
As plaintiff’s counsel continued to voir dire the jury, he had to take one issue head-on, or it might appear he was hiding from it: he worked for a giant tv-advertising, billboard-placing plaintiff’s firm. How did the jury feel about that? Oh, they had strong feelings about it! Too many ads. Too much litigation. Personal injury commercials are all you see on daytime television. Those who didn’t speak up were nodding in affirmation. The lawyer knew this was coming, but the plaintiff thimself slid lower in his chair with every response.
But aside from the one old gentlemen who appeared to hate both of us and perhaps the rest of the world around him, everyone said they could and would be fair to the plaintiff.
It’s my turn to voir dire the jury
The plaintiff had already settled his claims with the lady who had pulled out in front of him. Our trial was over whether he was entitled to any underinsured motorist benefits, and if so, how much. The plaintiff may have been disadvantaged because his lawyer’s firm is seen on televisions and billboards across the state, but I was representing a big, bad, faceless, soulless insurance company. There are few disadvantages greater than that in civil litigation. No one likes paying insurance premiums and most everyone has had a bad experience with an insurance company. I started my voir dire off by introducing myself and my corporate representative. I wanted to personalize us both. I made a joke – it fell flat. Just like the last time.
My second disadvantage was that by this time, we were approaching lunch time. In fact, I eat at 11:00 almost every day, so we were already well past my lunch time. When you’re working against the clock like this, you have to be precise and direct. There’s no room for redundant questions and wasting time.
With most of the interesting and conversational topics already taken, I set into a series of questions about insurance companies, insurance claims, bad experiences with insurance companies, and biases against my client. It was dull but necessary. My questions were drawing no responses from anyone, except the older gentleman who hated all of us. The non-responsiveness was both good and bad. No one was apparently going to hold against my client the fact that it was an insurance company, but I sure wasn’t getting a chance to establish a rapport with the jury.
After I asked my questions, I sat down. Over the next thirty minutes we struck our jury and dismissed for lunch. The case settled during lunch, which was somewhat a disappointment at this point. I’d worked all weekend only to put the landing gear down after we’d barely gotten off the ground.
The next day
My partner and I sat down to debrief the case. I express that I felt during voir dire that I had exhibited as much personality as our beige office walls. She said she feels that way each and every time she has to voir dire a jury in an uninsured/underinsured motorist case. The questions are dry and largely impersonal, but it is essential that we obtain the information. It only gets a little spicy when you have an old guy who hates everyone and wants to air his lifetime of grievances.
It is hard is difficult to effectively voir dire the jury, even when you have a theme, a plan, and know your material. Speaking of material, I need better jokes. While I work on that, here are some resources for you about incorporating storytelling into your trial work, representing clients at trial, and several litigators’ perspectives on voir dire.
Photo by Shawn.