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By Thomas J. McDermott, Jr.
oir dire is your first opportunity to good enough for me. sell yourself, your client and your 3. Model or profile the jury to your case. case to the jury. Voir dire, if you can This means, in crude terms, that the plaintiff wants nothing but bleeding heart, guilt-ridden get it, should not be wasted. AB a general rule in Southern California, you liberals who recently have been defrauded by can get voir dire in State Court but not in an insurance company, while the defendant W Federal Court. Federal voir dire, when con- wants all CPA:s. ith the advent of today's jury ducted by the Judge, at best removes the com- think tanks such as Litigation Sciences and pletely incompetent from the jury. It does Hale Starr & Associates, your juror profile can nothing to weed out the biased or the preju- be developed to the fine point of a 500-word diced, much less allow a modeling of the jury Personals advertisement in the Village Voice: or preconditioning of the jury to your case. e.g., "SWF, into kittens, pasta, long walks and Most lawyers consider the principal pur- . Bach desires. . ." etc. . poses of voir dire to be the following: 4. Precondition the jury to your case. At the 1. Eliminate the incompetents from the jury. end of a successful voir dire, the jury should The defendant's brother is incompetent to sit believe roughly that your client is the salt of in judgment. the earth and irrationally honest; that the other party is a scum; that the facts are so one2. Eliminate the biased or the prejudiced from the jury. In Irving Younger's words; a sided that the whole trial would be a bore ex"biased" person is one irrationally predis- cept for the anticipated pleasure of socking it posed in favor of something, while a "prejudiced" person is one irrationally predisposed Thomas J McDermott, Jr. practices with Rogers against something. The dictionary does not & Wells in Los Angeles. He wishes to ackmouiledqe necessarily support this distinction, but if it the contribution of Mark Selig, also of Rogers & was good enough for Professor Younger, it's Wells.
to the other party with the verdict; and that you, the trial lawyer, are a decent person, not too bright, but who cares since the facts are all on your side anyway. There is continuing tension between the bench, who generally feel that only one and two above (getting rid of the incompetent, the biased and the prejudiced) are proper, and the trial lawyer, who wants one, two, three and four and would invite the jurors over for cocktails if he could get away with it. There is, to my knowledge, no conventional wisdom or rule of law or ethics to resolve this dichotomy (although there is some literature to the effect that attempting to tell your story to the jury may be unethical). The trial lawyer is designated an advocate and, in my opinion, should push to accomplish all four. The judge must make the system work and cannot allow unfettered voir dire or we might never get to the trial itself. You cannot have a meaningful voir dire unless you ask the questions. Forget Federal Court. (As with anything, there are certain minor exceptions to this.) You can't hope to weed out the biased or the prejudiced or to profile the jury unless you get the jurors talking. This requires your use of open-ended questions, those where the jurors must express an opinion and not just answer' 'Yes" or "No." Therefore, getting a free dialogue, a conversation, if you will, with the juror is important. On the other hand, you cannot precondition the jury to your case unless you tell your story. This requires some talking by you. Balance between these two opposing concepts is necessary. There are two items that seem so obvious to me but are often not allowed. First, it makes no sense to attempt to empanel a jury that knows nothing about the facts. Lawyers should be allowed to explain their case in broad terms and to ask specific questions about aspects of their case. The statement usually given by a judge - "This is a breach of contract case bet-
ween the plaintiff ABC Company and the defendant XYZCompany" - simply does not help. Second, it is rude to ask a total stranger a series of personal questions, which is what voir dire is. To ameliorate this, the lawyer should be allowed to introduce himself or herself and provide some personal information. The juror
, Getting a free dialogue, a conversation if you
will, with the juror
does not want to hear that you went to Harvard Law School, but will be interested to know if you are married, if you have children, and other semi-personal items such as that. Officially,voir dire is a formal selection process by which the trial counsel and the court are given the opportunity to converse with and question a number of randomly selected individuals. The process of voir dire varies among jurisdictions but [mal decisions as to the specific procedures are usually within the trial judge's discretion. The purpose of voir dire is to provide counsel and the court with an opportunity to question and evaluate potential jurors for possible prejudice and bias which may interfere with a fair consideration of the evidence. Once a prospective juror has been questioned. he or she may be excused for cause, counsel may exercise a peremptory challenge, or counsel may elect to accept the individual on the jury. The ultimate goal of voir dire, ideally, is to empanel an impartial jury.
"Our research shows that 50% of all jurors decide a case after opening statement. Since I just finished mine, those of you who feel my client is innocent please raise your hands."
As an advocate, however, your function during the jury selection process is both clear and simple: you want to .select the jury that will be reasonably fair, is favorablydisposed to you, your client, and your case, and will ultimately return a favorable verdict. Your opponent, of course, while also looking for a jury that has an open mind about the case, is looking for a jury that will react favorably to him, his client and his case. The bench and bar each have a different perspective of voir dire practice. Court decisions, dicta, and the general literature indicate that much of the judiciary objects to attorney abuse of the probative and explicative purposes of voir dire. Instead, the judges complain, lawyers use the examination to gain adversarial advantage. The Judicial Conference of the United States predicts the following:
(1) Attorneys will strive to convert voir dire into a search for partial rather than impartial jurors; (2) attorneys will use voir dire to advocate their cases, offer instructions on the law, and influence prospective jurors; (3) prospective jurors may be exposed to "abusive, unfair and unnecessary voir dire questions' ': (4) voir dire will consume more time, contributing to court backlogs. California Superior Court Judge Ronald George said that the California law permitting reasonable attorney voir dire has resulted in lengthy juror questioning. ''As the judge in the two-year long Hillside Strangler trial, I found it rather disconcerting to be congratulated by some of my judicial colleagues for taking only 54 court days to select a jury, a shorter period than was anticipated given the complexities of jury selection under California procedure.' '
- Scope and Conduct of Voir DireThere are several methods by which courts conduct the jury voir dire examination. The style of voir dire can vary in terms of lww questions are put to the potential jurors and uiho asks the questions. Depending on the jurisdiction, the judge, or even the type of case involved, potential jurors may be questioned either in a group or individually or a combination of both. The questions posed to jurors may corne from the judge, attorneys, or a combination of the two. There are, nevertheless, three principal methods by which prospective jurors are examined. The procedure for jury selection in federal courts is set out in the Federal Rules of Civil Procedure. Rule 47 provides as follows: E::camination oj Jurors. The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper. Rule 47 gives the trial judge wide discretion as to the scope and conduct of voir dire. The rule has been given a liberal interpretation by the courts. Some federal trial court judges in the complete exercise of that discretion insist on doing the voir dire to the exclusion of counsel. This procedure has been condemned by courts which acknowledge that voir dire in both civil and criminal cases has little meaning if it is not conducted by counsel for the parties. The American Bar Association's standards for trial courts state that: A judge cannot have the same grasp of the facts, the complexities and nuances as the trial attorneys entrusted with the preparation of the case. The court does
not know the strengths and weaknesses of each litigant's case. Justice requires that each lawyer be given an opportunity to ferret out possible bias and prejudice of which the juror himself may be unaware until certain facts are revealed. The procedure for jury selection in most state courts allows counsel to conduct voir dire and cover all relevant and material matters that might bear on the possible disqualification of a potential juror. The trial judge has the power to exercise "broad discretion" with reference to the scope of the inquiry of and concerning prospective jurors. The court will usually ask the jurors some preliminary questions to determine if any jurors clearly can be excused for cause. After asking these questions, the court will generally turn the examination over to counsel, after advising the jury that questions asked by counsel, though seeming to be personal in some respects, are not meant to be and are asked for the purpose of ascertaining whether any person on the jury panel has any feelings or background that
, The juror does not want to hear that you went to Harvard ...
would be prejudicial to one of the parties to the litigation. The voir dire should have no time limitation. The trial judge, however, may seek to expedite the jury selection process by directing that some questions be put to the jury as a group and some to the individual jurors.
Some courts incorporate elements of both the Federal and State court systems. The trial judge generally asks preliminary questions of all potential jurors, followed by questioning of .one or all jurors individually. After the court has completed its examination, the court allows counsel to probe (usually within time limitations) further into the background of any of the potential jurors.
who on the panel will be imperceptive, unintelligent, unreceptive to your case, while looking to retain the more intelligent, unbiased members of the panel who will, by reason of their background, experience or temperament, favor your client's view in the controversy.
- Specific Purposes of Voir Dire-
A. Impart Information to the Jury. The use of voir dire to develop the theme of your case is essential. What is the selling point of the case? What is the salient reason why a verdict should be returned for your client? Pro, Rule 47 gives the perly formed questions can impart the client's story in a favorable light to potential jurors. Many judges report that lawyers use up to trial judge wide 80% of the voir dire time trying to indoctrinate the jurors. Judge Witman Knapp of New York discretion as to voices a common bench attitude. "The vice [of attorney participation] is that voir dire is used to condition jurors, not to select jurors. the scope and Accordingly, many states give trial judges the authority to bar questions that "indoctrinate" or "prejudice" prospective jurors. Notconduct of voir dire. ' withstanding the apparent proscription, trial advocacy manuals frequently urge lawyers to capitalize on voir dire as an opportunity to influence jurors. - Purpose of Voir DireB. Discovery of Adverse Bias and Hidden The functions and purposes of voir dire of Attitudes. The opportunity to question jurors the potential jury are numerous. First of all, about their backgrounds to discover any the purpose of voir dire is to discover the juror adverse bias, hidden attitudes, preconceived that has no biases, prejudices, notions or notions, ideas or formed opinions is given so thoughts that are contrary to any of the posi- that you may secure the information necessary tions you have on either the law or the facts to exercise challenges for cause or peremptory of the litigation at hand. Hence, the function challenges. As plaintiff's counsel in a malpracof voir dire is to get information from the juror, tice action, for example, you do not want a to know how the juror thinks. The voir dire. doctor or his or her spouse sitting on the jury. is used to question jurors about their back- Limitations on the scope of voir dire inhibit ground. The information gained gives counsel the right to the intelligent exercise of perempsome idea about the juror's receptivity to tory challenges, the importance of which has counsel's case. The juror's occupation, educa- always been recognized by the courts. It is the tion, residence, and even the book he or she trial judge's duty to ensure that the jury is imbrings to the courtroom indicate a lot about partial; without adequate voir dire this duty the person. The voir dire is used to discover cannot be discharged.
C. FSychology oj the Case. From the moment you step into the courtroom you are a psychological event to the entire venire of prospective jurors. Jurors watch every move you make. Jurors observe how you interact with the court personnel, your client, and anyone else you talk to. You must put your best foot forward in all that you do. Youmust be an affirmative force in the way you act and in what you say when voir dire commences. Youmust plan voir dire examination to be a persuasive psychological event for the jury. In doing so, three things are essential: 1. Establish CredilYility with the Jurors. Personal credibility with the jurors is of utmost importance. If the jurors do not like you, it will be harder for them to believe in your client's case. There is no question that you can enhance your credibility by the way you act, dress, conduct yourself, and by demonstrating
sincerity. You should not be a phony. You should tell it like it is to the jury, who will see it and understand it. Sincerity wins. Youobviously want the jurors to like you and hope you will like the jurors. If you feel you like a juror, it is probable the juror likes you. This is something you can sense. Certainly you are more persuasive to people you like. Or to put it another way, people who naturally like you are more likely to be of your persuasion, more likely to listen to you, and more likely to follow your direction.
every move you make.
, The use of voir dire to develop the theme of your case
. eseeniia 1 . ' .
during voir dire that you have done your homework. By establishing your credibility, you give credibility to your case. You should not exaggerate the case. If you understate and . underplay, you will gain the admiration and respect of the jury, which will rub off on your case. 2. Be Sincere. There is no substitute for
3. Establish a Rapport. The first contact the actual jurors have with you is during voir dire. Building a rapport with the jurors is essential to the effective presentation of any case. While often overlooked by many trial attorneys, the jurors are ordinary people. They want to understand what has happened in the case, they want to do what is right, and they want to trust you. Jurors must feel like they are your friend, your confidant. Jurors need not always be your best friend, but they need to feel comfortable with you. Voir dire is an excellent opportunity to set the jurors, who themselves are extremely nervous, at ease. The jurors will appreciate it, and your case will benefit from it. Until the "perfect" method of voir dire is discovered, the tension between the various views on voir dire must be accepted. The courts' concern with speed and efficiency must be outweighed by trial counsels' pursuit of the' 'impartial jury"; the adversarial system dictates nothing less.