By Dr. Ken Broda Bahm:
In a scene from that great movie of the ’80s, Ferris Beuller’s Day Off, the economics teacher, played inimitably by Ben Stein, tries to engage a class of profoundly bored and unresponsive high school students:
In 1930, the Republican-controlled House of Representatives, in an effort to alleviate the effects of the… Anyone? Anyone?… the Great Depression, passed the… Anyone? Anyone? The tariff bill? The Hawley-Smoot Tariff Act? Which, anyone? Raised or lowered?… raised tariffs, in an effort to collect more revenue for the federal government. Did it work? Anyone? Anyone know the effects? It did not work, and the United States sank deeper into the Great Depression.
Watching a recent practice voir dire, I was struck by the similarity. The attorney asked a string of “anyone” questions like, “Does anyone feel that corporations are more dishonest than other parties?” or “Does anyone believe that the fact that a lawsuit was filed means the defendant did something wrong?” And each in the series was met by absolute silence from the panel, with no volunteered answers or hands raised. It is a fact of life when trying to assess attitudes, but a small distinction in question wording can sometimes spell the difference between success and failure. And in this case, the problem is the same word that’s annoyingly repeated by Bueller’s teacher. Asking about “anyone” will generally limit the response and the usefulness of the question. This post unpacks the argument for avoiding “anyone” questions while also recommending some alternative ways to ask.
The Problems With “Anyone”
It is a tempting way to ask, because it really reflects what you want to know: whether anyone has a negative experience or holds an unfavorable attitude that would warrant a strike. But there are at least two problems with this apparently economical way to check. One is that you are priming your targets for a non-answer. The word frames the question as a choice between “anyone” or “no one.” Particularly in a group that is a little cold and passive (because they’re strangers, arranged by their last names, and placed in the formal setting of a courtroom), the group will frequently opt for “no one” as the tacit response. And when it isn’t, you have the second problem: The person who steps forward and volunteers an answer (“Yes, I think that…”) isn’t going to be a typical panelist. By nature, asking for “anyone” to answer just singles out the talkers and those who are most confident in their views. That identifies potential leaders to some degree, but only at the cost of limiting the number who actually respond. In addition, many of those who answer know that by stepping forward, they’re essentially volunteering themselves up for a strike, so you’re measuring willingness to serve more than you’re measuring the unfavorable attitude.
The main problem with “anyone,” however, is that it addresses generically instead of individually. As a tip a colleague shared with me many years ago, the most direct way to appeal to any audience, large or small, is to use terms of address suited to individuals rather then groups. In other words, don’t talk to “all of you,” talk to just “you.” Don’t talk to “the jury,” but instead to specific “jurors.” When you ask about “anyone,” you are speaking to the collective, and it is quite easy for an individual to hide out in the collective.
There Are Better Ways to Ask
You still want to find out who on the panel is a potential risk for your side, and there are more inclusive and comprehensive ways to find out.
Ask “Who”
The easiest way to revise the question without adding any additional time is just to ask “who” has a given attitude or experience instead of asking whether “anyone” does. That small difference primes in favor of a response and also sounds a bit more individually targeted.
Ask Mrs. Jones
A better approach is to pick a juror and just ask them individually. The person you select may be someone whose strike potential you already know, or it may just be someone you haven’t heard from yet. After that person answers, you can then pivot off that response by asking, “Who agrees with Mrs. Jones? And who disagrees with Mrs. Jones?”
Try to Get an Answer from Everyone
There generally isn’t time on each question to talk to each venire member individually. For that reason, it is a good practice to ask for a show of hands. But to prevent hand-raising from becoming just another version of “does anyone want to talk?” it is important to aim toward getting a response, one way or the other, from everyone. As a general rule, you should avoid the one-sided hand-raise (e.g., “Please raise your hand if you tend to distrust big corporations,”) because those let you learn about only a few on your panel. Instead, the better approach is one of the following:
An individual response followed by a pivot: Ask a particular panelist, then ask for a show of hands indicating both who agrees and who disagrees. That approach is described and demonstrated in a series of recent posts in this blog.
A structured response: Construct a question providing panelists with two options and ask which side they are closer to. E.g., Some feel oil companies are about the same as most other large companies. Others feel that they are less honest and less responsible than other companies. If you had to choose which view you are closer to, how many would say ‘they’re about the same?’ And how many would say ‘they’re worse?'” This approach is described in Karen Lisko’s book, Proven Jury Arguments and Evidence.
When using either method, however, it is critical to flush out even the wallflowers. Tell jurors that you are hoping to see a response from everyone, and if you see jurors neither agreeing nor disagreeing, then add an option of “not sure,” or “somewhere in between.” One way or another, the panelists need to get the message that voir dire requires participation and just sitting there is not an option.
So, the bottom line is this: Everyone should avoid “anyone.” The one exception to this rule is when it is your intent for no one to respond and you want that to be the message. For example, at the end of a series of questions on anti-corporate bias, it would be fine to end it with the question, “Would anyone be so certain about their views of corporations in general that they wouldn’t listen to evidence about this corporation in particular?” Of course, only the panelists desperately in search of a strike would raise their hands for that one, and in the more likely event of no one raising their hands, it sends a quick and useful message: Everyone agrees we should look at the evidence. But the bulk of voir dire should be devoted not to this kind of priming but to the discovery of the kinds of bad experience and attitudes that would justify strikes. And on that score, your concern isn’t with “anyone,” it is with each potential threat.
______
Other Posts on Voir Dire:
- Never Rely on Self-Diagnosis of Bias
- Practice the Pivot in Oral Voir Dire (Part Three): The Demonstration
- The Products Survey (Part II): Spot the Wrong Kind of Juror for Your Defense
______
Image Credit: Designed by Nick Bouck, Persuasion Strategies