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Keeping It Organized in Jury Selection Part 3: Voir Dire

By Brian Harris

Know the Process

In the third installment of this series, we tackle the task of voir dire. Of course, keeping voir dire organized first and foremost involves knowing what the voir dire process looks like in a given courtroom (see Part 1 of this series) and knowing whether you will have some preliminary juror information via juror questionnaires (see Part 2 of this series).

The judge may conduct his own voir dire and not permit you to ask anything. Obviously, knowing this ahead of time prevents you from wasting time and money creating questions you?ll never get to ask.  All you need to do is listen and keep track of the little bit of information you get.

If you are permitted to ask questions, the first critical issue is not what questions you will ask, but how you will be permitted to ask them.

The Many Faces of Voir Dire

There are lots of ways voir dire may be conducted. You may ask questions to a large group, a small group, individually or anywhere in between. The fact is that you need to know how voir dire is conducted so you can construct your questions in a way that best takes advantage of the process.

As an example, I assisted with jury selection for a team who had already created their voir dire. They showed me the list the morning of the selection. The problem I noticed was that the questions, while not bad in terms of content, were open-ended. Voir dire was conducted with the whole venire at once. While open-ended questions are recommended for individual voir dire, you can?t ask 60 people at once an open-ended question. 

Although I quickly retooled the list, the attorney already had the questions in his mind as written, and needed to pause and re-translate or re-learn each question.  He clearly was uncomfortable during voir dire and looked as if it was the first time he had seen the questions ? because it was.

Keeping It Short and Sweet

A critical mistake I also see in voir dire is the length of time folks spend asking questions, especially when given an unlimited amount of time.

In one trial, we were permitted all the time we wanted for voir dire. Opposing counsel took advantage to a fault.  In this process, we interviewed 12 folks at a time. Opposing counsel spent over two hours interviewing just those first 12 people, asking question after question. When my client got up, I had given him the three critical pieces of information to get from each person. He got up, engaged the panel and was sitting down again within 30 minutes. We had the key information we needed to make our strikes. We presented ourselves as cordial, professional and organized.

When openings began, I could see the jurors visibly slump down in their seats and roll their eyes when opposing counsel got up to talk.  Their expressions said ?Oh boy. How long are we going to be listening to this guy this time??

Less is often more. Developing rapport and collecting the most relevant information does not mean that you have to engage each person in a long dialogue. First, it is too much information for you to use. Second, jurors expect you to be a professional and friendly, but not necessarily their friend. I like asking one rapport-building question (My favorite is ?What do you like to do in your spare time?? because it is a friendly topic that gives good information about a person), and move on to the two or three key strategic questions that will give us the information we need to make strikes. 

With carefully constructed voir dire, the job can get done quickly and efficiently. Jurors will see you as on top of your game and they will thank you for respecting their time.

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Melissa M. Gomez, Ph.D
MMG Jury Consulting, LLC
www.mmgjury.com

Full post as published by The Legal Intelligencer Blog on September 03, 2009 (boomark / email).