cartoon of lawyer showing up to jury selection unprepared

“Showing Up” for Voir Dire is Not Enough

Carolyn Koch

What does voir dire preparation mean?

In my experience, good lawyers prepare for everything except jury selection. When it comes to jury selection, they think about it, talk to friends and colleagues, rely on stereotypes about who they think they want (educated people, touchy-feely types, business executives, etc.), and then just wing it when they get to court. After many years in this business, it still shocks me that some attorneys prepare for jury selection, even in big cases, by just showing up.

For example, I read the transcript of a jury selection in a case where a city transit company’s bus driver ran over a pedestrian. The case had been all over the news, but the defense lawyer didn’t ask jurors a single question about their possible biases against the bus company. He did no voir dire at all. After the plaintiff asked a few questions, the defense lawyer said,

“I don’t have nearly as many questions. That is more questions than I could ever think to have. Most of the things I was going to ask you have been asked. So let me ask you this. Will each of you listen to the entire case? Can I get that commitment from you?”

That lawyer was so unprepared that he was willing to tell the jury that he was happy to rely on his opponent’s voir dire! The defense lawyer did not give jurors any opportunity to admit any biases at all.

  • He didn’t explore whether jurors might want to punish the bus company in a case where punitive damages are not allowed.
  • He didn’t explore any personal bad experiences with buses or bus drivers, or whether jurors though anything negative about the bus company because it had admitted fault, but was still in court to argue money damages.
  • He didn’t even explore whether jurors would be overwhelmed with a very sympathetic plaintiff who had survived being run over by a bus!

He couldn’t think up any questions on his own because he had obviously done nothing to prepare for jury selection.

A better approach for questioning jurors

Proper preparation requires a systematic approach. First, analyze your case.  What are the greatest strengths of your case? What are the weaknesses? What are the general biases that can hurt you? What are the specific experiences that can hurt you?

Second, devise questions, in advance, that cover both general and specific biases.  For instance, when it comes to general biases, plaintiffs in personal injury cases would question jurors about frivolous cases, pain and suffering, caps on verdicts and tort reform. Defendants would do the opposite and delve into sympathy, rooting for the little guy, biases against corporations, etc. When it comes to specific biases, instead of feeble attempts to pre-test your case, identify the many different ways a juror’s life experience might influence his or her reaction to your case.

Third, write your questions down and test them. The biggest revelation I have ever had about jury selection is the simplest: If you write down your questions and test them out well in advance of voir dire, and then actually use your pre-tested and scripted questions in the courtroom, everything (and I mean everything) will fall into place:

You will develop rapport with jurors; they will respect your skill; you will truly learn about people. Blinding stereotypes will crumble. You will be more sensitive to your case weaknesses; you will get more honest answers; and you will know how to tailor your case so that it resonates with the complex individuals who have the power to alter your client’s fate. You will succeed far more often in making challenges for cause, and your premptory challenges will go a whole lot farther.

–excerpt from Effective Voir Dire, Chapter 1, “Debunking the Myths”.

Give jurors questions they can answer: Some examples

Are you a personal injury lawyer asking jurors, “do you think there are too many lawsuits?” While on point, that question is too broad and non-specific. To expose biased jurors, you need to do more. For example, the following series of questions would give you a sense of whether a juror can see merit in a legitimate case: 

  • Have you ever been sued? 
  • Have you ever known anyone – people at work, or acquaintances – who have filed lawsuits just as a way to make some money? 
  • Have you recently read or heard of a lawsuit that you thought was a waste of time?
  • Have you recently read or heard of a lawsuit that you thought was legitimate or important or needed to be brought?

Follow up is key. If you ask the question, you have to ask the follow up. Who sued you? What was that experience like? How will that impact you here? 

A final thought: Are you the best lawyer for the job?

I worked with a great lawyer who was terrific at every aspect of the trial except jury selection. Why? Because his charisma and intellect overpowered people. When he spoke to jurors, we learned nothing except their ability to nod their heads. When his associate asked the questions, we got a clear view of who jurors were and what they believed. This division of labor worked far better for the experienced lawyer. With his quick sense of people and deep grasp of his own case, he was able to quickly evaluate jurors’ responses.

It’s your case. You have to be able to make tough decisions about jurors. If they clam up in your presence, let someone else question them.