by: Dr. Ken Broda Bahm
When you have the ability to ask your own questions in voir dire, make the most of them. Done well, attorney-conducted voir dire should create a balance between the goals of spotlighting high risk jurors and safely drawing themes from more favorable jurors. At the same time, the questioning process should build rapport and feel natural to both the attorney and to the panelists. When attorneys err, it is often in one of two directions. On the one hand, some attorneys will ask only tightly controlled (yes/no, or cross-examination style) questions that are designed to restrict free expression and minimize the risk that prospective jurors will taint the panel by sharing opinions and experiences that run counter to your message in the case. On the other hand, some attorneys will simply ask jurors what they think on topics relating to the case, giving equal voice to those whose views would help and those whose views would harm it. The first approach errs in learning too little, and in constraining the expression of those who will judge your case. But the second approach errs in potentially learning too much: creating the real risk that unfavorable jurors will not just be discovered, but will be given a soapbox as well.
The right balance can be boiled down to this: identify the bad jurors, but talk to the good jurors. In other words, your questions should create a context in which less favorable jurors are comfortable identifying a bias (often, by simply raising a hand to agree or disagree with a statement made by another panelist), while eliciting the greater balance of thematic statements from favorable jurors when they are in a safe and strike-proof majority. Even as you try to minimize the expressive statements offered by less favorable jurors, you also need to make sure that the panelists believe that you are genuinely interested in hearing all that they have to say.
In order to meet all of these goals, our approach requires some moment-to-moment strategy in choosing follow-up questions. Instead of following a defined menu of questions, you should ask a planned “lead in” question, and then improvise based on a model of possible follow-up questions based on the way the individual juror answers. I call this a “structured follow-up model,” because you structure your follow-up choices based on two questions you should ask yourself about each important juror comment.
Question One: Does the response help or hurt my case?;
Question Two: Is the response likely to be a majority or a minority point of view?
To effectively follow this approach, the attorney needs to internalize this model, and practice helps as well. This approach is built on just a few fundamentals (e.g., don’t over-expose favorable jurors, don’t over-communicate with unfavorable jurors, etc.).
Lead-Off Question. The sequence starts by asking an open-ended question designed to elicit a relevant opinion. Initially, you can chose a juror that you haven’t heard from, or a juror at random. As you learn more about the likely opinions of jurors, however, you can select jurors who are more likely to give a helpful response. If time permits, ask each member of the panel at least one lead-off question. For example, in an employment defense, you might start out by asking something like “What are your feelings about “at will” employment, or the idea that an employer can end the employment relationship at any time, just by giving notice?”
Listen to Venire Member’s Open-Ended Response. The goal of the lead-off question is to get jurors to express an opinion. If a potential juror is neutral or has no real opinion they can articulate, simply select another member of the panel and ask the same question.
Ask Yourself, Does the Response Help or Hurt? While listening to the jurors’ answer, the attorney internally asks themselves two basic questions. The first question is whether the response helps (by offering an opinion that helps your case) or hurts (by offering an opinion that hurts your case). The choice of one over the other determines the follow-up.
For example, in response to the sample question above, a potential juror might respond by supporting the concept of “at will” employment (helping you in your termination defense), or by opposing that concept (hurting your defense).
Ask Yourself, Is the Response Likely to be a Majority or a Minority Point of View? The second internal question the attorney asks is whether the helpful or harmful opinion is likely to be one that is shared by a majority on the panel, or not. Again, the estimation of one over the other determines the follow-up. For example, focusing on jurors’ reasons for opposing “at will” employment, a potential juror might respond that “losing a job is serious and companies should have a good reason” (something a majority would probably agree with), or they could respond with something more like “everyone should have a right to a job…” (which would be more likely a minority viewpoint).
Decide on a Follow-up Category: As they attorney classifies the jurors’ response as either helpful or harmful, and majority or minority, they respond by choosing one of three styles of follow-up:
A. Amplify and Divide. When a potential juror responds with a helpful majority opinion, you will want to amplify by spreading that theme to others on the panel, by asking for more of the opinion from the same jurors and others. Tell me more about that…Why do you think that is true? Do you have examples of that. You will also want to divide the group by asking who agrees with that opinion (when it is likely to be a majority) to highlight potential strikes in those who do not.
B. Move on or Rehabilitate. Potential jurors offering a helpful minority need to be protected from additional exposure that could lead opposing counsel to strike them. The best way to move on is with a genuine “thank you.” If the exposure is severe enough that the juror needs to be rehabilitated, then consider a follow-up (e.g., You aren’t saying [insert extreme view] are you? Do you think that is always true or only sometimes true?).
C. Move on or Minimize. Potential jurors offering a harmful majority opinion need to be prevented from giving voice to a point of view that is likely to be counterproductive in highlighting your case weaknesses. Again, either move on (with a sincere “thank you”) or if the negative themes expressed are particularly harmful, consider a follow-up that minimizes the force or effect of the opinion (e.g., questioning how absolute a given opinion is).
D. Flip and Divide. When jurors respond with the last category of response, a harmful minority opinion, flip the statement by asking about the opposite opinion. For example, “Who disagrees with that?” “How difficult would it be for you to set aside that view?”
Again, you again have an opportunity to divide the group to highlight potential strikes.
There are naturally many approaches to oral voir dire, and the structured response model is just one. Whatever approach you choose, your goals in making the most of oral voir dire should be to build rapport, to learn about high risk attitudes, and to get jurors talking in ways that reinforce your themes.