Some cases end after jury selection – you’ve either set yourself up to win or lose the trial. But the result normally does not revolve around how well you were able to sneak in your agenda. Jurors learned long ago to be wary of attorneys using voir dire to tell jurors about their case. Instead, voir dire is an opportunity for you to build rapport with the jurors so that when you do get to the evidence, jurors trust you and your story. Trust is not easily built if you hide behind a podium staring at your notes instead of engaging with the jurors. Part of the art of voir dire is the same thing as the art of conversation. Pay attention and show a genuine interest. Let a paralegal, secretary, or consultant take notes.
The process of de-selecting jurors is complicated by the fact that jurors often give answers that are inaccurate either because (1) they are trying to be politically correct, (2) they haven’t thought long enough about the question to give an honest answer, or (3) they are stealth jurors who lie to get onto a jury. To deal with issues 1 and 2, you need to know how to ask questions in a manner that give jurors permission to answer truthfully. To do this, you need to lower the barriers to a “bad” answer. For example, give jurors a choice of two viewpoints and ask which one they are a little bit closer to:
Some folks, like my grandmother, for example, feel that money should not be included in a verdict for pain and suffering because money cannot make the pain go away. Others think it’s okay. Which are you a little closer to?
This allows jurors to feel comfortable opening up and giving an answer that they otherwise may feel you do not want to hear. Another similar line of questioning is to ask what problems jurors would have with something:
Mr. X, assuming we prove our case to you to a degree of more likely right than wrong, what problems, even little ones, would you have in including money for pain and suffering in your verdict?
The next artful skill is in following up. This conversation skill is simple, but not easy. Allow jurors to expand on their answers by asking them, “tell me more about that” 2-3 times per question. Often jurors do not know their true answers until they are asked to really think about it. You should get your true response by the second or third follow up. The reason this is hard is because it is very tempting to ask leading follow ups, such as “how did that make you feel?” or “why?” These may seem like open questions, but they still lead a juror down a certain path. Had you simply asked for them to tell you more, they may have chosen to go off on a different tangent which was important to them.
This leaves the third category of jurors, the stealth jurors who answer in a way so as to get themselves on the jury. Explaining in full how to detect these jurors will be the subject of another post, but in simplistic terms, look for inconsistencies in answers, tone of voice, and body language as they answer your questions and as they listen to other jurors answer questions.