By Dr. Ken Broda Bahm:
As part of the voir dire process practiced in most California state courtrooms, the step of allowing each side to make a mini-opening before questioning is becoming more common. That is decidedly less so in many other states, where judges (with at least a little justification) might be thinking, “I already hate it with counsel tries to sell their case in voir dire, and adding a mini-opening would just do more of that.” I believe that reaction, however, applies to the wrong way to do a mini-opening.
The problem may be in the name itself. Functionally, the mini-opening before voir dire isn’t really a miniature version of your opening statement. The actual opening statement ultimately delivered to the selected and seated jury should do a number of things: provide a map of the case, preview the evidence, introduce the witnesses, and “argumentativeness” aside, should also give jurors a positive first impression designed to get them to lean a little in your favor. A mini-opening doesn’t really have any of those goals — and even if it did, it couldn’t hope to accomplish them in the time most often allowed (usually just five minutes or so). Instead of a shrunk-down opening, the mini-opening is best conceived as an opportunity to set the context for your jury selection. Properly crafted, the mini-opening should make your voir dire more focused and useful by allowing potential jurors a chance to respond to your questions in the context of your case. In this post, I will share a set of steps for doing that, along with a running example.
Start With Your Theme
Even though its focus is on voir dire, the mini-opening should still serve as your first opportunity to introduce jurors to your trial theme. It’s an economical way to convey your central message, and if any jurors have a negative reaction to it on face, you’ll want to know that in voir dire.
This is a case about what can happen when workers don’t follow their training and their policies.
Provide the Case Story in a Nutshell
You want to convey just the broad story, not the details, in order to give the jurors a brief “here’s what happened” reference point on what the case is about.
John Tillis showed up for work on April 4th, clocked in, and went down to the switchyard to start his tasks. Instead of waiting for his team to arrive, he began on his own…ultimately resulting in the injury that brings him to court today.
Frame the Two Sides
In addition to the story, the jurors also need to know what the dispute is. So briefly identify what they’ll be arguing, and what you’ll be arguing:
Now the plaintiff is going to say that, despite the policies, Mr. Tillis was implicitly expected to violate that policy, and to start alone just to keep up with the work-flow. And, in response, our defense is that the policy is the policy for a reason, and that it is taken seriously.
Preview the Negatives
All things considered, your mini-opening should lean into the bad facts more than the good ones. That is because it is the negatives in your case that will probably play the biggest role in flushing out those potential jurors you will want to strike.
Now, we do expect that several of Mr. Tillis’ coworkers are going to take the stand and try to confirm his story. They’re going to say that they were expected to violate the policies in order to keep up with the work flow. And the company management will strongly dispute that.
End by Setting Up the Key Voir Dire Questions
Probably the most important opportunity in the mini-opening is the chance to set up some of the main questions that you will be asking in voir dire and then using to support your cause challenges and peremptory.
And one thing I want you to think about, because I will be asking you this in a minute, is this: Are you likely to automatically put more credibility on the workers rather than the management? In other words, if some of the workers perceived that they were expected to break the rules just to work faster, are you inclined to trust that perception more than you trust the policy and the word of managers?
Without a mini-opening, you can still ask some of those general questions. But the general questions (like, Would you trust workers more than management?) are more likely to lead to simple or expected answers (like, No, I would treat all witnesses equally). When that question is framed in the context of the actual dispute, your opportunity for getting a more specific and more honest answer increases: Well, in a case like this, if the workers say they had to break policy to meet work flow, I think that is probably correct, so I’d believe them more than the managers who might be just toeing the company line. And the more specific answer will be far more useful when it comes to establishing a bias that could support a cause challenge, or could be your rationale for a peremptory strike.
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Other Posts on Mini-Openings and Voir Dire:
- Say It in Three Minutes
- Save the Strikes: ASTC’s Research-Based Case Against Prohibiting the Peremptories
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