By Dr. Ken Broda Bahm:
If, by the end of oral voir dire, you’ve broken the ice, earned some credibility and rapport, learned the basis for at least a handful of cause challenges and strikes, and spent the balance of your time eliciting themes from jurors that help your case, then you’ve done your job. In part one of this series, I shared one approach for balancing these goals that I call the “pivot” approach. The basic idea is that, instead of simply opening up the forum to let jurors voice thoughts good and bad, or asking leading questions that just prompt jurors to agree or disagree with your words, you start with an open-ended question, then pivot off a juror’s answer in order to divide the group so as to know who is higher risk and who is a safe bet for sharing helpful themes. In theory, it comes down to loosely following the six steps discussed in part one. But in practice, the situation is not always smooth or simple. That is because people aren’t fully predictable (if they were, voir dire would be less necessary).
Because the large group discussions in oral voir dire aren’t fully predictable and individual comments can sometimes go in unexpected directions, there is a need to follow a plan, but also to stay loose in order to deal with surprises. The most important thing to be doing in voir dire is to be carefully listening to what the candidates are saying. And when those comments take you off script and into a tricky situation, what saves you is the ability to fall back on some good habits. In this post, I step beyond the basic model to add a discussion of what to do in trickier situations, and also share my own list of good habits in questioning.
One Tricky Situation: How Do You Protect Your ‘Good Minority’ Jurors?
It’s good to have friends, especially when they’re in the jury box. But sometimes a particular panelist’s experience or attitude can end up being so friendly that your main concern is that they’re just offering themselves up for a strike by the other side. We call these “good minority” jurors in the sense that they’re good for you, but the views they hold are likely to be held by just a minority of potential jurors, and it is that minority status that makes them strikeable. For example, if they had their way, most defendants would probably prefer a full panel who believes there are too many lawsuits. And when that view is held by as many as nine in ten people, anyone expressing that view is within a safe and unstrikeable majority. On the other hand, if a plaintiff’s attorney asks that question and one or two panelists exclaim that America’s problem is that there aren’t enough lawsuits, that person is good, and probably too good for the plaintiff since anyone expressing that view will be exactly the person the defense will want to strike, and they won’t be protected by being in the majority.
It’s for that reason that an important goal in oral voir dire is to protect your good minority jurors. If the other side is doing their job, of course, at least some of them will be discovered, but there’s no reason to help them by shining a spotlight on these favorable panelists during your own questioning. To return to the example used in part one of this series, when an employment defense attorney is seeking to voir dire on attitudes toward “at will” employment, the majority viewpoint will probably be that an employer’s ability to terminate without having cause is generally common and legal. But someone who goes beyond that to say “a company has no obligation to answer when the employee asks why,” has probably just crossed the line from safe majority to strikeable minority.
When that happens to one of your own “too favorable” potential jurors, there are two options. One, if you think they’ve opened themselves up to a potential cause challenge by the other side, you can quickly rehabilitate them (“But you would use the law and the judge’s instructions to decide what the company’s obligations are, wouldn’t you?”). Or two, in the more likely case that the panelist has simply flagged themselves for a strike by opposing counsel, you need to take a different tack. One thing you shouldn’t do is just ask how many agree. If a couple more raise their hands, then you’ve just handed more friends to your adversary’s strike list. Instead, it is necessary to tweak the question a bit before you pivot off of it. In this case, the venire member who believes “a company has no obligation to answer when employees ask why they’re terminated,” has expressed what is most likely a minority viewpoint. So in order to divide the group in a meaningful way (a way that highlights your potential strikes while keeping those likely to say good things about you in a safe majority), you’ll want to adjust the question. For example:
Thanks, but when a company does give a reason, would you expect that the reason would have to be for some kind of failure or misconduct on the employee’s part, or could it be for the company’s own business reasons? How many of you agree that terminations generally shouldn’t happen unless the employee does something wrong? And how many of you disagree? Why?
So at this point, you probably have a few who would usually expect terminations to only happen when it is the employee’s fault (those are the high-risk jurors for your employment defense) and you have a larger group who feel that businesses can have lots of reasons for termination and don’t always need to show the employee did something wrong. After noting the first group, the second group is the one you want to follow up with in order to get them speaking the themes of your case.
The same principle applies when someone expresses a “bad majority” opinion (like “companies don’t always appreciate their employee’s contribution”) because those who would disagree would be that same “good minority” that the other side wants to strike. So in this case as well, you would want to adjust before you divide the group.
Six Good Habits that Maximize Usefulness and Minimize Danger in Voir Dire
I’ll end with some ‘rules of the road’ that will typically serve the questioner well in a variety of situations.
1. Model Self-Disclosure
Think about it as a potential juror might. It isn’t a very natural situation to be in a room full of strangers and being asked to disclose personal experiences and attitudes. And it doesn’t help to know that the entire purpose of the exercise is to disqualify you from doing your civic duty. It doesn’t come naturally. For that reason, it helps for counsel to disclose something of their own in order to set the tone. For example, “I’m from Cleveland…and I hate, hate, hate the Baltimore Ravens football team, because they used to be the Cleveland Browns before they betrayed the city. So, if I were being considered as a juror for a case involving the Ravens, I would not be the right juror for that case.”
2. Get Those Hands Up
You generally won’t have time to ask each important question to each individual. And even if you did have time, there are often strategic reasons for eliciting fewer statements from the higher risk jurors (see part one of this series). For that reason, you’ll often want a show of hands in response to a question. Since its typically been a long time since your panelists have been in school, they won’t be used to raising their hands: Ask for a show of hands, and some people will just quickly or ambiguously move their hand. In order to allow yourself or your assistants to properly track the responses of each individual, you will want those hands up high, and left there for a moment. To encourage them to do that, show them what to do. As you ask, “How many of you…” raise your own hand high and straight, and keep it up until you are done.
3. Force a Choice
Frequently, you can pivot off an individual panelist’s answer and easily divide the group by asking “who agrees” and “who disagrees.” But sometimes, it will help to structure the choice more than that. My colleague, Karen Lisko, has pioneered this method of creating questions that will reliably split a group in a way that reveals the strike candidates while still keeping a majority on your side. For example, “Some feel that in order to face a termination, an employee really needs to have done something wrong or failed in some way. Others would say that terminations can be fair even if they’re just for the company’s own reasons. If you had to say which of those two views you are closer to, how many would be closer to the first? And how many would be closer to the second? Why?” When you’re not likely to get a clear enough juror response to pivot off, the structured response provides more predictability and safety.
4. Hear From Everyone
This isn’t always possible once you consider the time allowed, the panel size, and the judge’s process, but whenever it is possible, make sure that you spend time really hearing from each panelist: not just a raised hand, but an open-ended comment from everyone. That will help you get to know them and get a glimpse of their analytical style. In addition, when you are getting responses through raised hands, you need to make sure that everyone is responding one way or the other. That is a reason for softening the options (e.g., “How many are closer to…” or “How many are more likely to…“), for giving both options (that is, after asking how many agree, don’t assume that everyone else must disagree, ask), and for following up on non-responses (“Mr. Smith, I noticed you didn’t raise your hand…”).
5. Appreciate Every Opinion (But Only Repeat the Good Ones)
When a potential juror tells you they don’t like companies like your client or you, and shares hostile attitudes on any number of broad issues that will affect your case, the proper answer is “thank you.” That’s because all opinions are good opinions (good to know, at least). Because you want to encourage disclosure, it helps to be both verbally (yes, thank you) and nonverbally (positive facial expressions, head-nodding) affirming all contributions. At the same time, when you follow up (Why do you feel that way? Please tell me more about that? Can you think of any examples?) it should be mostly from individuals who are on your side of an issue. Remember, note the unfavorable jurors, but talk to the more favorable jurors, especially when they’re on a safe and strike-proof majority.
6. Lead Only When You Don’t Need to Learn
Think about why you ask leading quesitons in cross: because you want to control the response. You only want to do that in a few cases in oral voir dire. One of those situations would be when you are supporting or staving off a cause challenge. Another situation is when you are wrapping up a topic and you want to leave a final helpful impression on that subject. When you lead, you are interested in getting support for a conclusion you’ve already reached (e.g., this juror should or should not be dismissed for cause), and you’re less interested in actually learning something new from the panelist.
Of course, it would be possible to keep going, but those are the best habits that go along with the pivot appraoch. For general rules, there is probably no better comprehensive list than Mark Bennett’s 16 Simple Rules for Better Jury Selection. Through a combination of a plan that works with your style, and some good commonsense practices, jury selection should be a rich and engaging opportunity to learn and determine the qualities of those who will judge your case.
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The Series:
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Other Posts on Jury Selection:
- Don’t Select Your Jury Based on Demographics: A Skeptical Look at JuryQuest
- Jury Selection: Probe But Don’t Embarrass
- Complex Case? Beware of “Low Effort Thinkers”
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