Today, I am at a seminar co-sponsored by the Kentucky Justice Association and the Kentucky Defense Counsel on Trial Strategies and Techniques.
I will share short points on this and hope you enjoy and appreciate them. This is not exhaustive or complete; nor will it necessarily be the point the speakers intended and will in all probability be filtered with my thoughts, opinions and analysis.
Voir Dire from Plaintiff's perspective:
- Think about it before hand. Prepare and plan for the kind of jurors you would like on the case. Structure your questions accordingly. Learn demographics, politics, attitudes that may affect how they look at your client, you and your case.
- Throw out the wasted questions. Drop the question of "by your silence, I understand that your agree". No. No. No.
- Get jury involved. Ask questions encouraging a response to include raising hand.
- If instructions are an issue, then prepare the way.
- Mock focus groups are helpful but approach to learn the issue and the problems and not win. Look at case from other side; their best case.
- Don't ignore your opponent.
Voir Dire from Defendant's perspective:
- First chance to approach jury and need to appreciate that opportunity to make a favorable impression.
- Unfortunately, law school and training has not prepared you well enough. Few opportunities to watch trials and others today with a. fewer trials and b. more ADR; not to mention more judicial interference with limitations on judge asking questions and/or limiting your voir dire by number of questions or time.
- Be yourself.
- Two rules: Rule 1 - be yourself; Rule 2 - don't forget rule 1. Jurors will catch phony, actor, and will determine if you are a decent person. Sometimes takes a while to see if you are a jerk.
- Begin with your theme.
- Humanize yourself to jury. Eg., identify yourself and answer the same questions the jury had to answer.
- Primacy rule. People remember what first hear.
- Explore identifiable problems with the case and what are presented by juror's responses. Be sensitive to juror's concerns and don't embarass them.
- Explore unwarranted expectations of clients and jurors.
- Explore damages raised by plaintiff and only limited by number of zeros on typewriter per discovery answer.
- Listen to juror responses and explore relevant concerns.
- Rule out jurors not appropriate for your case due to infirmities, eg., witness speaks quietly, then hard of hearing jurors will not catch your evidence.
- Series of DON'Ts:
- Don't argue with juror, judge, or opposing counsel. Jurors HATE contentiousness.
- Don't discuss burden of proof, insurance, taxes.
- Don't violate order from motion in limine.
- Don't repeat questions of judge or other counsel.
- Don't bore jurors.
- Don't forget to eat breakfast so you want out of there by noon.
- Avoid indoctrination, interrogation, and ingratiation.,
- Purposes of voir dire include disclosing dangerous jurors; disclose attitudes and beliefs; and establish credibility and believability.
- Disclose dangerous jurors.
- Tainting a juror is a fallacy. Tough questions better addressed in group and deal with them openly rather than take it back to the jury room.
- Validate the process and don't apologize for asking the tough quesitons.
- Don't ask can you be fair? Yes or no questions are not good. Try asking "how will that impact your view of the case" and give them the opportunity to say the right or the wrong thing and learn what they are thinking.
- Can't convert people to your side.
- Golden Rule No.
- Look for leadership or passivity in jurors. But watch out for the closet expert.
- Ask question and wait for panel to crack and answer. Don't move on after nanosecond. Get first juror to respond, then thank them and praise them (even if killer response). Others will be encouraged by your respect of them and the process.
- Be prepared and prioritize your allocation of time.
Questions from the audience:
- Protocol for developing the hypothetical juror focuses on life experience and attitudes which would be driving them in how they see the case.
- How to address the judge who strongly limits voir dire. Try questionaires for jury, giving judge list of questions or issues to address (and they might address or then defer to the individual lawyers).
I have re-edited these posts and deleted the names of the presenters. Not because I want to deny them individual credit, but because I did not risk improper attribution and embarass them based upon my summaries and poor typing. However, they all did an outstanding job from both sides. Kudos to the Kentucky Justice Association and the Kentucky Defense Counsel on a job well done and an incredible cooperative effort to educate and promote the professionalism of the bar.