Understanding Voir Dire

Voir Dire is the process of selecting a jury in a trial; it is actually a process of deselection. Lawyers identify jurors they don't want on the jury and deselect them. They do this using strikes for cause and peremptory strikes.

Strikes for cause occur when the judge rules that a juror cannot serve on the jury. Jurors struck for cause are unavailable for the trial or show bias towards one side or the other—plaintiff or defense.

The plaintiff and defense use peremptory strikes for their own reasons. Usually, something comes out during voir dire that makes the plaintiff or defense believe the juror will be bad for one reason or another.

Setting the Narrative

Lawyers tend to focus their Voir Dire on how to get rid of bad jurors. We forget what the remaining jurors will think about our case.?Giving the remaining jurors context to understand our case is an extremely important part of Voir Dire.

Defense lawyers do this very well. They set a negative narrative in jurors' minds by saying some very key, important things.

One example is what I call the Open Courts doctrine script. It esses the jury that anybody can file a lawsuit for any reason. This script triggers feelings in the minds of the jurors.

By spending billions of dollars on marketing, the insurance defense industry has implanted negative feelings in Americans' minds about personal injury trials. They have convinced Americans that every case is frivolous, every plaintiff is lying, and the whole system is fueled by plaintiff greed.

But plaintiffs go first, and plaintiff's lawyers need to set the story of our case in the jurors' minds from the very first moment, beginning with voir dire. This is not one of those other cases. This is a serious case.

Most people understand that trials are necessary. Some cases are legitimate. Our job is to tell the jury that this is one of those cases.

We need to understand it's not a foul unless they call it. As a former professional basketball player, I learned that referees miss a lot of calls. I used to get very upset when they'd miss calls against me for fouls that the other side was making. It took me many years to learn I could do that, too. Over time, I learned ways of obtaining advantages legally. Because if it's not called a foul, it's legal.

The same principle applies in court. If we're afraid of having an objection called or sustained against us, we fail to use all the tools available to represent our clients. I often tell my associates and students, "You don't truly know where the line is until you cross it." So don't be afraid to try things within reason. Open your mind to possibilities. Go talk to other lawyers. Find judges and ask questions. Learn your craft.

We need to understand who our judges are. In some cases, we can obtain background information on the judges, which can be very helpful. I often use a listserv if I'm in a bigger county. I will contact friends or colleagues in the county where I'm trying the case. See if there's any intel on the rules the judge implements. What kind of time constraints and how lenient is the judge on lawyers, generally, and during Voir Dire specifically?

Some counties will publish a jury list before the start of the trial. This allows us to get information on the jurors and understand who they are. I've also had great success working with local counsel. I get intel on jury panels, jurors, and judges.

Third-party vendors can provide background information on a list of jurors or panel jurors. We've even used publicly available voter rolls, voter registration, and voter history to understand who would be a good or bad Juror.

It is important to use a team for a successful voir dire. One lawyer acts as the questioner or presenter for the board. Then, second-chair lawyers, paralegals, and others observe and take notes.

Importance of Gut Feeling

I always tell my clients to pay attention to their gut. I give them a pad of paper and a pen. I advise them to trust their instincts when writing about jurors. They should take note if they get any negative vibes from a juror's appearance, demeanor, or reactions.

Lawyers tend to be very logical and want hard data to support decisions. However, we gain much information through the unconscious processing of human behavior during interactions. For example, how the person walks, talks, and makes eye contact before, during, and after the conversation. We also unconsciously process facial expressions, tone of voice, and breathing. All that information is combined to create a "feeling" for each other, including whether we trust the person.

In one of my last trials, a guy in the front row wouldn't look anybody in the eyes. Even when the lawyers asked him questions, he would stare straight ahead and occasionally glance over at the lawyer. Something about him differed from the rest of the people in the room. Several people on our team got the same feeling. They thought there was something weird about this person. Something standoffish or hesitant. He was too much of a wildcard. Some of his other answers and how he answered made it obvious we needed to use a peremptory strike on him.

Pay attention to those non-logical, feeling-based reactions. Instruct your team and client to pay attention to them because they hold significance. If there's a negative feeling, it's probably for a reason.

When I speak at CLEs or to groups of lawyers, I usually ask a woman in the crowd how long it takes them to decide that a man is creepy when he walks into a room. Most women say they immediately get a feeling about a person when he walks into a room, and that can be off-putting. They immediately think, "He's weird." In voir dire, those observations and feelings from the person need to be recorded and respected.

Techniques for Effective Questioning?

Another mistake many lawyers make is not memorizing a script for questioning biased jurors and locking in a for-cause strike. We need to plan and memorize a short set of questions to ask them and quickly strike the juror for cause. I got this from another lawyer in Dallas. She does a lot of jury consulting and jury selection. When I heard her do it, I wrote it down and memorized it, and I've used it for many years.

Imagine a juror saying they are biased in one way or another. For example, they've been sued before, and that traumatic event left them with a really negative view of lawsuits. They feel the person who sued them shouldn't have done things that affected them negatively.

Once I decide I want to try to strike the juror for cause, I enter my strike script. I may ask leading questions to get the answers that I want. At the very least, I would ask open-ended questions that indicate the answer I want them to give.

The script would go something like this:

Is that feeling of negativity towards the person who filed that lawsuit against you a deeply held belief for you? Yes.

Is that deeply held belief of negativity towards lawsuits something you've had for a long time? Yes.

And is that something you'll probably take into the jury room when you decide this case? Yes.

And even though you would try your best to be fair to both sides, it will probably affect your decision in this case. Is that fair? Yes.

Even if another lawyer or even a judge were to tell you, "You need to follow the law!" You would, of course, try your best to follow the law and try your best to be fair, but that deeply held belief that goes with you into that jury room is not something you can just set aside. Fair? Yes.

At that point, the juror should be struck for cause in any jurisdiction, even if the judge allows rehabilitation. There is no way to rehabilitate that juror.

For example, when the defense lawyer steps up and says, "Well, the law says you have to be fair and unbiased. Can you do that?" Even if the juror answers "yes," I still have the fallback that the deeply held belief will affect their decision. So, the lawyer and the judge are stuck. They cannot rehabilitate that juror, and they're struck for cause.

It's important for us to understand that script and those series of questions. We need to be able to rattle them off within seconds without thinking in front of the panel. We don't want to waste any time or miss an opportunity to strike a bad juror.

In addition to causing strikes to eliminate a juror, each side typically gets a certain number of peremptory strikes. In Texas, we often have a panel of 50 or so jurors in the venire (prospective juror panel). Judges give each side 30 minutes for voir dire. And each side would get three to six peremptory strikes. So, peremptory strikes are very valuable.

If we can't use a cause script to strike a juror for cause, then we will have to use a peremptory strike. For each voir dire, I prepare several questions intended to identify jurors who would likely be a bad juror for my case. Below are some examples:

• Lawyers or people who work for lawyers or in law firms;
• Medical training, such as doctors, nurses, paramedics, etc.;
• Caregivers, or people who see themselves as caregivers;
• Anyone with injuries similar to what might be seen in the case. They may not believe someone else deserves compensation if they did not receive compensation;
• Religious boundaries, or religious mandates that prevent sitting in judgment of others;
• People believe there should be caps on damages;
• People think that money for pain and suffering and wrongful death is wrong;
• Anyone who has been sued;
• Business owners because they may would align with the defendant;
• Engineers and accountants who would require 100% proof to make a decision;
• Workers in the insurance industry, such as adjusters and claims handlers.

On this last point, judges and the parties will often agree on how to ask questions regarding insurance adjusters and claims handlers before jury selection begins. I've used and heard other lawyers use questions like, "Who here has experience adjusting claims?"

Preparation and Practice

Lawyers who are new to trying cases believe that Voir Dire is just another part of the trial. We spend most of our time on opening statements, preparing direct and cross, or memorizing the exhibits. But most experienced trial lawyers that I've heard speak about Voir Dire feel it is the most important part of a case. That's especially true for plaintiff's personal injury cases.

Plaintiff's cases can very easily be lost in jury selection. I recently took some associates to watch a Voir Dire of a pedestrian versus car case. The plaintiff's lawyer representing the pedestrian used 90% of his Voir Dire asking, "Who here has ever been involved in or knows somebody who has been involved in a pedestrian versus car crash?"

For 25 minutes, the entire panel told story after story about their personal experience with pedestrian versus car cases. The jury panel set the story of the case instead of the plaintiff's lawyer setting the story of the case.

And unfortunately for him and his client, the entire panel had very negative stories about the pedestrians. Nearly every story blamed the pedestrian for some part of the incident.

Afterwards, the defense lawyer stood up and said, "There's a law here in Texas called the 'Open Courts Doctrine' that allows anybody to file a lawsuit for any reason." And the plaintiff had already lost the case. Without knowing any of the facts of the case, other than it being a pedestrian vs. car case, the entire panel was blaming the plaintiff. When we checked the verdict at the end of the week, the jury blamed the Plaintiff 80%, which in Texas means the plaintiff got nothing.

It is important to understand how crucial Voir Dire is. It's important to set the story in the jury's minds from the very beginning.. If we don't do that, we're already losing the case.

We must think through how we will present Voir Dire from beginning to end. We need to practice phrasing our questions. The jury must understand they're here because the defense did something dangerous and hurt somebody.

Practicing is also important. We do not want to ask a question for the first time before a venire panel in trial. Use focus groups to practice voir dire from beginning to end. Record yourself introducing yourself at the beginning of Voir Dire, asking questions, and wrapping up at the end. Use apps like?Otter.ai to record and transcribe your Voir Dire. Study what other lawyers do. Order transcripts. Go to the courthouse on a random Monday and ask to sit on another lawyer's Voir Dire.

Professionals study their craft, practice, and learn from mistakes. Amateurs wing it and blame others.