Most articles about voir dire discuss what you should do during this process (build rapport, identify bias, prime your themes, etc.) but you do not often read about what not to do. As you read this, you will wonder, “What skilled lawyer would make such a mistake?” But that is exactly what it is—a mistake.
No one intentionally sets out to do the wrong things in voir dire. It is a stressful situation; it is the first time you have an opportunity to address the jurors directly, but you also have many goals to accomplish in a short period of time. Some questions are crafted as a result of jurors’ responses to your scripted questions; sometimes you are thinking on the fly and sometimes things just do not come out right. Or you have a goal in mind, such as trying to close a juror down on cause, and you forget how you are coming across when doing so.
The lessons below were gathered in real trials with opposing counsel who meant well but whose voir dire delivery backfired.
Tip #1: Don’t Offend Your Jurors
This seems like an obvious mistake to avoid, but it is the easiest mistake to make when you are not watching your words. Sometimes the most common expression can inadvertently insult the jurors.
For instance, as an introduction to a voir dire question posed to the panel of prospective jurors, opposing counsel was describing how his expert was more credible than the defense’s expert by the use of a common expression: “Those who can, do; those who can’t, teach.” At this point, it didn’t matter what his question was or what the point of the question was; his audience of hard-working jurors heard that comment. There were several teachers and substitute teachers on the panel—not to mention jurors who had family members in the teaching profession. This was a poor choice of words, and a good way to alienate a significant number of jurors on his panel with one simple phrase at the very beginning of trial.
Tip #2: Avoid Calling a Juror’s Integrity into Question
Another way counsel can offend a juror is to question the veracity of a juror’s response. In a separate instance, counsel framed a question on the fly (in an attempt to close a juror out on cause) and caused all 65 jurors as well as the attorneys and female judge to gasp. It turns out the juror with whom counsel was speaking was a young male who knew one of the other jurors on the panel; he went to school with her son. In the attorney’s attempt to secure a response that would rise to the level of a cause challenge, he did two things horribly wrong: he called the male juror’s integrity into question, and he offended the mother.
On his third attempt to secure a response to support a cause challenge, the attorney asked the male juror if he would feel he might have difficulty expressing his opinions with an authority figure like his fellow student’s mother if she were on the jury. The male juror replied, “Not at all. I make my own decisions.” Counsel responded with his first mistake, saying, “Really? You were just a kid a few years ago.” Not skipping a beat, he continued into mistake number two with “…and besides, she is so much older than you.” The entire room gasped with utter surprise at what he had said. The female juror was surprisingly a good sport about the age comment, but the impression was made.
In this instance, the attorney broke a cardinal rule—never comment on a woman’s age or weight—but this is what happens when you aren’t paying attention and begin crafting questions on the fly. It is wise to make a list of the things people find offensive or embarrassing if they are discussed in public and put those topics on the “do not mention/discuss list.” Furthermore, it is a prudent strategy to practice voir dire, whether by assembling an informal panel of staff members or conducting a voir dire focus group. Practice makes perfect.
Tip #3: Skip Cross Examination of Your Jurors
While they may not know what to call it, jurors know when you are trying to remove a juror for cause. You made a first pass, then a second, but the juror just did not give you enough. So, you give it a third and fourth try. At this point, it is clear to everyone in the courtroom—the venire and especially the juror that you are talking to—that you do not want them on the panel.
Though you are in a frustrating position, remember that you may be sacrificing opportunities to build positive rapport with the juror and the rest of the panel, especially if you do not successfully strike this individual from the jury. Know your limits and know when to stop.
Contact the IMS team to learn how our jury consulting services can help position your case for success before trial.
