Voir dire from the human perspective

The universal human experience and its role in voir dire

2015 January

Voir dire, French for “to speak the truth,” is undoubtedly one of the most important elements of any trial. It is the time when you are making connections with a jury to facilitate justice for your client. It’s the only time you get to talk to the folks that will be deciding the case and they get to talk to you. Voir dire is about connecting with people you’ve never met on a level that allows them to help you. There are a plethora of books, how-to guides, and supposed quick fixes for voir dire methods. Voir dire however, is an art – one that just begins with you and ends with you connecting with a jury. Sometimes, it seems like this task is more difficult when the people you are connecting with look nothing like you – or your client.

I’m a black man. I’ve tried in excess of 50 jury trials to verdict, and I am still petrified when I watch that jury panel first walk in. I look for a friendly glance, a sympathetic stare, something. Anything that tells me that I’m not alone. It is still the scariest time in a trial for me. In my 15 years of practice, I’ve never seen a jury comprised of 12 African-American men. I doubt I ever will. Whoever you are, I doubt you’ll ever see a jury that looks exactly like you either. That doesn’t change our task.

We all come from different walks of life. We may have different genders, different political leanings, different skin colors. On the surface, it seems like there is quite a bit to separate us. Accordingly, we tend to gravitate towards the familiar – we want to be around things and people that look just like us. Similarly, we tend to shy away from the unfamiliar at the same time. Unfortunately, that makes it more difficult to elicit information from jurors that may help or harm your case. For example, jurors sometimes withhold information during voir dire.

In 1994, a prospective juror refused to answer several items on her juror questionnaire, maintaining that questions about her income, religion, television and reading habits, political affiliations, and health were “very private” and irrelevant. She was cited for contempt, which a federal magistrate judge later overturned. (Brandberg v. Lucas, 891 F. Supp., 552 (E.D. Tex., 1995)).

While most prospective jurors won’t go to this extreme, there is nothing that trial lawyers fear more than a “sleeper juror.” Many a time, I’ve sat there wondering if a juror who sat silently is concealing some deep-seated prejudice against my client, or worse, questioning whether the jurors who did speak did so with candor.

Sometimes I see no friendly indicators in a jury panel. In those times, I feel alone and worried. How do I pick the group of people that will help me get the best result for my client? Still, this is not an impossible task. While jurors may not always master the technicalities of a case, they have an uncanny ability to grasp the truth and to provide common sense justice. Jury selection is something done in courtrooms all across the country five days a week. Everywhere, in courtrooms, trial lawyers are making connections with people who think differently, look differently, feel differently than they do. The question is how? I think it’s based on The Universal Human Experience.

The universal human experience and its role in voir dire

Remember that you’re not talking to a bunch of lawyers in the jury box. Voir dire is about connecting with regular people. It is much easier to connect with people when one realizes that the human experience is a universal one. While I may not seemingly having anything in common with a middle-aged white woman on the surface, both of us have had people make assumptions about us based upon how we look. Both of us have walked into a room and felt out of place as “the only one.” Both of us may have – at one point or another in our lives – had to wear our resumes on our sleeves. And therein lies the secret to voir dire: find things that each juror can connect to with you, your case and your client on an emotional, universal experience level. Be honest with them and they will be honest with you. Once you earn this trust-based connection from your jurors at this level, it will make it easier for them to follow you through the remainder of your case.

Obviously, this means that jury voir dire starts long before you stand up to start talking to the panel on the first day of trial. Themes, focus groups and preparation all play essential parts in thinking about your case and your client. Before jury selection begins, the theory of the case must be thoroughly developed. It must be fully thought out. Otherwise, it is impossible to know the proper audience to choose for the case you are about to put on, how that is going to affect the jury emotionally, and thus, what parts of the case to educate the jury in during voir dire. Thus, the first step in preparing voir dire is developing a theory of the case. Nothing can substitute for an adequately prepared lawyer. Accordingly, while there are many ways of conducting voir dire, there are some universal thoughts that one should think about once you get there.

Do they like me?

Trust tracks likeability. People trust people they like. While you are picking a jury, they are picking a lawyer. Another key reason to be more likeable is that you need these uncomfortable and inconvenienced folks to open up to you about some occasionally sensitive, personal stuff. And asking them to do it under oath in front of a bunch of cranky strangers. They’ll do it more easily if you are appropriately warm and inviting. It also helps to like them back. Remember, these people are there to change your client’s life – they are not the enemy. Treat them like you’re in a group of friends.

Do I like them? I mean, do I really care about these folks?

Every time you try a case, you are engaged in a unique process and experiment in the lives of people. You are not just dealing with their intellect; you are trying to reach their hearts, souls and spirits. You need to do your best to learn about the hopes, fears, dreams and aspirations of ordinary human beings who are doing their best to be responsible citizens, serve as jurors and to lead a good life. You need to know what excites them and what disappoints them. Insight into human nature is extremely important to the trial lawyer. Accordingly, don’t just act more curious about people, their lives, their experiences, their mental processes, their quirks, their filters, their biases, their tastes... but actually BE more curious.

Show them yours; they’ll show you theirs

Research on eliciting honest answers from strangers shows that it works better if the questioner discloses something about himself or herself first. Start long before the trial and think about the things that honestly scare you about the case. Is it asking strangers for lots of money for pain and suffering? Asking stupid questions? Losing? Your client’s not-so-stellar past? Once you determine those things, really ask yourself, “Why do I feel this way?” Once you go through that introspection, share those thoughts with the jury and ask if anyone else feels that way. You’ll be surprised: most people have the same universal experiences that you do on an emotional level. Self-disclosure on your part is extremely valuable to jurors. It lets the jurors know that you have feelings just like them; feelings and thoughts as a human being as well as a lawyer. If you show them yours, they’ll show you theirs.

This is crucial. I humbly submit that this is the entire purpose of voir dire: to get the jurors to talk about their own experiences, bias, and feelings towards your client’s case. Once they do, honor that honesty. The three core elements create the kind of atmosphere that lends itself to a person’s disclosing honest and true perceptions, feelings, and behavior: empathy, respect and congruence. Social scientists who have been in the field of interviewing have researched these core elements for decades and have found that unless all three of these elements are present, people will mask their feelings, hide their thoughts, and be disingenuous with their behavior. Thus, they will refuse to engage in a real and honest conversation. Indeed, in the study Avoid Bald Men and People with Green Socks (2003), Valerie Hans and Alayna Jehle stated, “Life experiences and preconceptions contribute to the narrative or story that jurors develop as they listen to evidence and decide the case,” (p. 1180).

Jury research has consistently shown that people unconsciously rely upon their own beliefs and life experiences to judge the actions of other people. We all see the world through the lens of our personal experiences. It is essential that the jury panel that you finally select has a lens as close as possible to yours and that of your client. The more open and honest you are about that lens, the more your prospective jurors will be.

Once they show you theirs, get ready to cement cause challenges

Often attorneys are worried about “poisoning the well.” That’s not necessarily the right way to look at it. Think of it this way: Would you rather have them say something negative about your case in voir dire when you can do something about it, or during deliberations when it’s far too late? Indeed, people’s attitudes do not change simply because a stranger voiced a different opinion. Obviously, once your jurors are open and honest with you, you will get some answers that will make you cringe. Trust me: you want these. Nothing a juror tells you is bad – they are all gifts and the juror that is honest with you in a painful way should be thanked for their courage and honesty. It is not easy to be open to a group of strangers. That applies to you and the jurors.

Always remember that simply obtaining answers that show bias or prejudice is not enough. We have to get an answer that reveals bias and demonstrates that this is a view that is unlikely to change, and that it has been held for a while. And we have to ask a sequence of questions that will get this information in such a way that the judge can’t just say: “Nevertheless, Mr./Ms. Juror, you would put that aside and follow the law and the instructions I give you, wouldn’t you?” Posed properly, follow-up questions are indispensable tools to provide a basis for cause strikes. The more cause strikes you achieve, the better use you can make of peremptory challenges to avoid undesirable jurors. Without such measures, biased jurors end up on the jury. Too often, lawyers get some information that could probably be developed into a solid-cause challenge, only to fail to ask those final couple of questions that really get the person to commit to their belief/attitude, admit that it’s not going to change, say that it has been held for a long time, and say that there are better cases in the courthouse for them to serve upon.

Conclusion

It is no small understatement to say that a good number of cases can be won – or lost – in voir dire. Effective and skillfully conducted voir dire is the most important ingredient in winning a trial; yet, voir dire is perhaps the most neglected and overlooked part of the trial by attorneys. It doesn’t matter what you look like, what your client looks like and how superficially different we look than our prospective jurors. We all can connect on a level of emotional honesty that can do nothing but help your cause, and the cause of your client.