Voir Dire: 2014

September 3, 2014 Voir Dire

“We meet no ordinary people in our lives.” C.S. Lewis

“The human being is never impartial. He is biased by everything he has experienced, suffered, and seen.” Harry Libsig

“We don’t see things as they are, we see things as we are.” Anais nin

We started the first trial in my law school class. The initial exercise was jury selection. I coached the students while they were standing in front of the jury box doing the exercise and later I sent the following notes to them:

The Atmosphere in the Courtroom

You must put prospective jurors at ease so you can converse with them. Jurors are nervous when they walk into the courtroom. To most of them, court is not a place they want to be. It is alien and intimidating. To the average citizen, only bad things happen in court. They know from television and film that when people go to court, they may not get to leave, and that they may go to a jail cell. Thus their main goal is to leave, quietly and quickly, without drama or embarrassment. They are not going to volunteer any information because most of them are deathly afraid of public speaking.

Throw away the Horn books, practice texts and especially well meaning but usually disastrous advice from lawyers. Each juror is a unique human being. There are no standard forms. Start a conversation to size them up. Let them tell you who they are. Don’t be thinking of the next question on your list. Relax and focus on the person you are speaking to. She is the only one in the room. Speak to her like you are trying to pick her up in a bar. Think what Bill Clinton would do. Look her in eyes. Never look away from a juror. Only speak when looking at a face.

The Goal

Everything comes with a goal in the courtroom. Everything you do must be consistent with your theory of the case. From the time you enter that courtroom until the time you leave, everything you do has consequences. With the voir dire I want to know what was your plan and what information you obtained.

Get Them Talking

You first job is to get the jurors talking, because the more they open up and talk about the issues the more you’ll learn about them, and with more information you can intelligently decide how to exercise your peremptory strikes. The best technique for getting jurors to talk is by asking open-ended questions, which require more narrative answers rather than simple “Yes” or “No” responses.

Frame your questions so that most begin with “Who,” “What,” “Where,” “How,” “When,” “Why,” “Explain,” or “Tell us…” Listen and respond so they know that you hear and understand them. Follow up on the answer. “Why do you feel that way?” or “Can you tell me what makes you say what you just told me?”

Life Experiences

Life experiences affect how people will see the facts of a case — whether personal life experiences or those of relatives and friends. The truth of what happened is less important than the attitudes left behind by these experiences. So find out the lesson they learned from the experience.