Realize the social process of voir dire and use it to your advantage

Listen to this article

By Stephen Hnat
Dolan Media Newswires

Trials are often won or lost during voir dire, but many trial attorneys fail to appreciate and effectively use the process.

Litigation is as much a social process as a legal process, and the same social dynamics operate in the courtroom as in any boardroom or classroom. An attorney who is as attentive to the process of voir dire as the content is at a significant advantage during the most decisive phase of a trial.

Here are a few techniques that will contribute to a successful voir dire.

1. Know what you want to accomplish during voir dire, with the primary goal of establishing rapport before exploring juror biases.

Preparing for voir dire involves not simply identifying what the issues are in the case and assessing potential biases on those issues. You must explore your own feelings about those issues and the case, your feelings about the clients, and personal concerns about the success or failure of the trial.

Ask yourself: What are you worried about? And why? These questions can help you to identify emotions that could spill over into your voir dire non-verbally, and can shape how you ask your questions (i.e. tone, affect, non-verbal communication).

Have you ever met someone who, even though he or she said all the right things, there seemed to be something “off” about the person? Chances are you were picking up some non-verbals that betrayed an emotion of discomfort — being anxious, maybe emotionally diverted, or preoccupied with another issue. We all communicate emotions that are not always in our awareness.

An attorney who is aware of their emotions approaching a trial is in a much better position to use those emotions to an advantage. It allows you to respond spontaneously and genuinely, thereby further enhancing your credibility.

2. Use your emotions and self-disclosure to establish rapport and permission to answer honestly.

Approach voir dire first by considering the jurors and their emotions. They’re in an unfamiliar situation, in public, and most likely feeling anxious. It’s a bit like going to a party where they don’t know a single person, or like the first day in a new school.

Be aware of your tone: it should be reassuring and calming. Explain the process to jurors (when jurors know what to expect, it reduces their anxiety), and begin to call on jurors individually.

You might want to start with a potential juror with no previous jury experience who appears to be nervous, and tell them that you are nervous, too. It models what you want from them — permission to talk openly even about uncomfortable feelings and issues — and establishes an emotional identification with them, as it increases the likelihood that they will feel like you are one of them.

Use your emotions and self-disclosure to help jurors to not only identify biases, but also to give them some reassurance or comfort expressing then.

One example of this principle might be while discussing limits on damages or providing pain-and-suffering damages for a deceased person.

You might start out by saying, “You know, here I am, a trial lawyer representing people who bring lawsuits. And I have to tell you that, sometimes, when I read about a big verdict in the media, I kinda scratch my head and wonder what the heck they were thinking. And I have been in trials myself resulting in verdicts that were really fair, but I can imagine someone else would say the same thing. I imagine you have had the same reactions as me sometimes …”

Another example of using self-disclosure to prime an issue is in a criminal trial. Every juror has heard of the presumption of innocence, virtually none believe it, but will believe in the principle.

You might start assessing bias with: “You know, here I am representing people accused of crimes, but I’ve got to tell you, when I am driving down the road and I see a man spread-eagled on a car being searched by an officer, I don’t say to myself ‘Gosh, I wonder what that guy is presumed innocent of doing!’ I think to myself, ‘I wonder what he did?’ I know I have a difficult time with the concept and I imagine you probably do the same as me, right Juror No. 3?”

3. Ask questions that require a conversation.

Conversations involve talking and listening — an exchange of ideas. Some voir dire are conducted with lists of questions structured more like an interview than a conversation.

The goal is to establish rapport and assess biases, and this can only be accomplished with a conversation. Any questions that only require a “yes” or “no” response, or no response at all, are usually not useful questions.

Avoid using legal terms in questions, and ask the question like a high school graduate might.

For example, instead of asking, “Does anyone here have any negative feelings about medical-malpractice lawsuits or litigation?,” you might call on an individual and ask, “Ms. X, how do you feel about suing doctors and hospitals?”
Most people like attention and positive feedback. Listening to their responses and responding to what they actually say and how they say it is important for several reasons. React to every response a person makes. This lets them know you consider them important enough to listen and acknowledge what they are saying. Not reacting or responding to their answers can come across as dismissive.

What people say is often less important than how they say it. Look for congruity between their response and the emotion expressed while responding. Asking about their response without challenging them lets the juror know you are carefully listening to them and helps them to assess how they really feel.

For example, a juror may hesitate in a response to a certain question —usually a clue that there’s some emotion or thought being withheld. Instead of responding in a manner that challenges their honesty or openness, ask them to help you understand or clarify what they just said.

Stephen Hnat is a Southfield, Mich.-based jury consultant who has affiliated with American Settlement Centers Inc. With more than 15 years experience, he has assisted plaintiff and defense firms on a wide variety of cases in civil and criminal trials. He has conducted trainings for attorneys on voir dire, opening and closing arguments and trial research methods.