For some, the pronunciation of “voir dire” alone produces great debate. With an etymology rooted in Old French and Latin, “voir dire” is translated as “to speak the truth.” What typically comes to mind when this phrase is thrown about in the legal world is not “truth-speaking,” but rather the process by which potential jurors are questioned and screened to determine if they are suitable to serve on a jury.
In Chapter Eleven of his book Nuclear Verdicts: Defending Justice for All, Robert Tyson explains how voir dire is a critical element of an attorney’s argument overall. Voir dire is the moment to win the jurors’ trust and admiration: “My main goal is to have the jury like me more than Plaintiff’s counsel.… Why? Because if the jury likes you, they are not going to hurt you. It’s that simple.”1 A voir dire in which the jurors say nothing is worse than no voir dire at all. Why? Because that tells the jurors you are incompetent, self-absorbed and unlikeable. Exactly opposite of the goal. In this article, we will explore strategies for defense attorneys to successfully ace voir dire.
How do you win a jury’s trust and admiration and position yourself as a likable person within such a short amount of time? Here are ten tips from First Court’s founder, Michael Liffrig:
1. Introduce yourself.
But don’t take more than ten seconds to do it. This is NOT about you. The purpose is to learn about them. Start asking questions within 10 seconds.
Talking to a sourpuss lawyer is intimidating and unpleasant. Smiling conveys confidence in your case, and it also says you enjoy talking to the people in front of you.
3. Say “Thank you!”
Every single time a juror offers you a comment, remember to thank them. “Be grateful and show it when jurors share personal information and experiences with you.”2
4. Go with your gut:
Your job is to connect with the jurors, not check off items on a checklist. Remember, it is not the duty of the jurors to volunteer information or to make the conversation flow. You must lead them into a great discussion. And, don’t be afraid to not ask the question. “Very often, a question that would seem awkward and improper in a social setting is also awkward and improper in voir dire. Don’t ask that question.”3
5. Make eye contact.
Keep your eyes focused primarily on the people in front of you. There is nothing worse than when jurors raise their hands to give you a comment - and you miss it. You gotta see the juror!
- Helpful tip: If you insist on reading notes, have a colleague watch the jurors for you. That colleague should cue you when you have ignored a juror who was trying to talk.
- Consider: Using a team in the courtroom, armed with a software program, to keep track of all the “SHOW OF HANDS” questions asked - by the Court, by your opponents, and by you. The software should also help you organize your social media insights into each juror, and to prioritize your strikes.
- Helpful tip: In a virtual format, arrange your set-up so your notes are above your webcam so that you never have to look away from the jurors.
6. Follow Up
Try to follow up on the answers each juror provides. This honors them. It shows you are listening to them and interested in them, not just marching through your agenda.
7. Don’t waste time talking about the purpose of voir dire.
Or about knocking out unfair people. Or apologizing. Those are vaguely threatening and unpleasant - energy killers.
8. Don’t argue with the jurors.
Make it as easy as possible for each juror to be honest. And don’t badger them into agreeing with you. If you say anything close to the following, you should get out of litigation and find work that doesn’t require people skills:
- “Well, if the law says you must treat corporations the same as human beings, you would follow the law, wouldn’t you?”
- You can be fair to my client, right?
- Will you listen to all the evidence?
9. Recognize the Suffering
Jurors can be shocked by the suffering plaintiffs have endured. It is the elephant in the Courtroom. If you don’t recognize the reality of this suffering, or if you only do so in a cursory way, your claim to the moral leadership of the jury is lost. Recognize the suffering. Do this in a detailed way, identifying the real hurts they are enduring. And do so for at least two minutes. The goal is to show the jurors that you may well know more about the suffering of the plaintiffs, and care more about it, than the plaintiff attorney. “Begin to incorporate background information about our client’s business or circumstances. You want to begin to frame your client’s story as early as possible because the earlier you do, the more likely the jury will remember the information.”4
10. Become Their Guide In Damages
Jurors are overwhelmed by the idea that they are responsible for putting a number to plaintiff’s pain and suffering. It seems inconceivable, impossible to them! They know it's important and are desperate for trustworthy guidance on this. Build up your moral credibility still further by becoming the much-appreciated source of that guidance. Discuss damages openly and without reservation.
In conclusion, mastering voir dire is critical for defense attorneys. By thoroughly knowing your case, planning your questions, being strategic in your strikes, building rapport, listening carefully, and educating potential jurors, you can identify biased jurors and secure a fair jury for your client while at the same time winning over the jurors’ by your respectful questions and likable personality. Remember, voir dire is your opportunity to shape the jury, win their trust, and create a positive outcome for your client.
Want more insights from First Court’s experience with jury verdicts? Check out our blog series on LinkedIn where we delve into Robert Tyson’s ten points one-by-one, drawing from the advice in his book while combining the thought leadership of prominent plaintiff and defense attorneys who have experienced both sides of a nuclear verdict.
About the Author:
Kristi Harrington is a trial consultant with First Court, Inc. As a retired circuit court judge, Kristi presided over hundreds of jury trials. Kristi is a Distinguished Visiting Professor and former Director of Advocacy at Charleston School of Law.
Recent Articles by Our First Court Team:
- Tyson Jr., Robert F. Nuclear Verdicts: Defending Justice for All (Law Dog Publishing, LLC., 2020), p166.
- Tyson Jr., Robert F. Nuclear Verdicts: Defending Justice for All (Law Dog Publishing, LLC., 2020), p167.
- Tyson Jr., Robert F. Nuclear Verdicts: Defending Justice for All (Law Dog Publishing, LLC., 2020), p173.