20-minute voir dire

There might be just enough time

2016 January

My favorite part of trial is when we begin. I wake up that morning of the first day with a spring in my step. I am prepared! I know my case! I believe in my client! The unknown is who will decide the fate of my client’s claims. But I can control this, if I am prepared to conduct the most effective voir dire – no matter what the limits.

Voir dire is the trial lawyer’s first and only opportunity to speak with jurors and get a sense of how they will receive and view the evidence in our client’s case. Will they be biased? Do they have closely held beliefs that will prevent them from being a fair and impartial juror? It is scary to think that arbitrary time limits could be placed upon us and our client so that we are unable to discover the biases that might exist. The Code of Civil Procedure, section 222.5 provides that in order to select a fair and impartial jury counsel shall have the right to question prospective jurors. Further, “[d]uring any examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case.” (Code Civ. Proc., § 222.5.) What is more, this section provides that there should not be arbitrary time limits or a blanket time-limit policy regarding the length of time for the parties to voir dire the prospective jurors. (Ibid.)

So if the law is this clear, why are we given limits? In my view, whenever we are told we will have a certain amount of time to do something, regardless of the facts of our cases, the limitations are likely arbitrary. But, sometimes the time limits imposed in voir dire by the judge are our own fault. In this regard, we must make sure that we are educating our trial judge of the nature and relative complexity of our cases. Since in most personal-injury cases in Los Angeles County we no longer have the same judge from the beginning of the case through trial, we must make sure our trial judge is aware of any complex issues that would require additional time on voir dire. If this “education of the issues” is done properly, we might be able to get the additional time we need. Bottom line is – don’t accept the arbitrary time limitations without a fight.

There are several things we can do to ensure that our judge is aware of our unique issues. First, we should be doing trial briefs. I am not saying that in every automobile-versus-automobile case we should be submitting a trial brief. Nevertheless, some automobile cases are more complex and will require a trial brief to adequately inform the court of the issues at trial. For example, cases with multiple vehicles and disputed liability might require some additional time on voir dire.

Additionally, there are many categories of cases that always require a trial brief. You should be thinking whether there are facts in your case that will invoke biases, strong views, or controversy. If so, you need to do everything in your power to get that additional time. In this regard, here are some examples of cases where a trial brief might be helpful in getting that additional time.

• Medical-malpractice cases: In these cases, most people have strong views one way or the other about people suing doctors. Tort reform advocates target these types of cases. People falsely believe that a verdict in favor of a plaintiff will result in their own health insurance or medical costs rising. Further, these cases also involve complex medical issues in many cases. Because of this, many jurors will trust a doctor’s judgment.
• Pedestrian cases: There can be many different types of pedestrian cases that will create all sorts of issues. For example, dart-out cases, unmarked crosswalk, or jaywalking cases create issues that need to be explored in voir dire.
• Government liability: Like medical malpractice cases, jurors are often worried about who will pay for the damages to the plaintiff. Will this cause their taxes to rise?
• Motorcycle cases: It goes without saying that lane splitting is a subject of great debate in California. There are also issues of modifications on bikes and helmets. Many jurors just don’t like motorcycles. They think they are inherently dangerous. These biases need to be discovered.
• Immigration status: When a plaintiff is an undocumented immigrant, there are clear issues of bias that need to be explored with jurors. Often, jurors are reluctant to tell you about these sorts of biases. Therefore, significant time needs to be spent probing jurors on biases that they might not even know they have.
• Molestation or abuse cases: Some folks are very uncomfortable even hearing this evidence. You need to determine if folks can handle hearing this evidence and if they can fairly decide the case. Some folks are predisposed to not believe a victim. Clearly time is needed to explore these issues.

There are a lot more case types that will require a full and fair opportunity to discover the biases jurors may have – e.g., drugs, alcohol, police misconduct, employment cases, and the list goes on. If we do a good trial brief alerting the trial court to these issues, we are in a better position to get the additional time we need. If you are doing a good job educating the court on these issues, you are in a better position to have the time you need to examine the jurors thoroughly. Most judges are not going to be arbitrary on time limitations if you have informed the judge of the potential issues necessary to explore with the jury pool.

After doing everything you possibly can do to give the court enough information on the complexities of your case, there still may be instances of time limitations; a 45-minute time limit is the most common. However, more and more frequently are even more restrictive time limitations, generally 20 or 30 minutes. What do you do once you are that restricted to time?

Get them talking

How do you get a room full of people to share their views with you on sensitive topics? And, how do you do it quickly? I believe this can be a personal thing. Some attorneys naturally are better at this than others. I believe that I am successful for several reasons. First, be friendly! Don’t be argumentative with potential jurors or everyone will shut up.

Second, ask open-ended questions. Once you start getting responses from jurors, begin to probe. “Some people think that jury awards are too big. Do any of you have any thoughts about this subject?” Then follow up… “What are your thoughts and opinions? Explain that to me.” Make sure that you are getting the information you need. But, in doing so, let them do the talking.

Many attorneys fear asking probing questions. It is more comfortable to get short answers and move on. However, if you go this way, you will miss out on important information you need to evaluate each juror.

Next, raise your hand. Seriously raise your hand. Show them what you want them to do after you ask your questions. Let them know early on that you need to hear from them. As you are listening to their responses to your questions, nod your head and keep eye contact. Let them know that their views are important. Give them the comfort that they will not be judged for providing you those views.

Remember to listen

Let’s face it, lawyers like to hear themselves talk. But, we know great attorneys are good listeners. Listening is where you will learn the most. This is just as true with witnesses as it is with jurors. I do most of my talking in the first 30 seconds to one minute of any voir dire. This is a brief introduction on why I get to ask them questions in the first place. I also try to help them understand the importance of sharing their views. In this regard, I share with them that biases are not bad. We all have a predisposition to believe certain things. I believe that my daughter will be the smartest and prettiest girl in her freshman class at the University of South Carolina this coming year. Well, I am sure that every other mom of any incoming freshman feels differently than me. And, that is fine. I have a bias. Biases are not necessarily a bad thing at all. I let them know it is okay to talk. Then I listen.

Early in my career, I wasn’t as good at this. When a juror would say something I disagreed with, it was my instinct to want to persuade them to change their opinion. Well that is never going to work. The juror does not know me or trust me. I just needed to listen to their views, getting them to say enough to allow me to successfully challenge them for cause.

Be smart

Don’t waste time on areas that will not help you determine a juror’s biases. In other words, think about your topics to hit on. It might also be a good idea to have the judge hit sensitive topics. This will help you focus your examination on jurors that pique your interest.

Also be smart about who and for how long you question. Remember your objective in voir dire – you need to make sure that you are learning enough about each juror so that when one begins to express views of bias you can pin them down! You want to remove these bad jurors with for-cause challenges. Spend your time there getting them to tell the court that they will not be able to do what they will be asked to do.

Be organized

When you have a limited amount of time to accomplish something, being organized is much more important. In this regard, you should know your objectives during voir dire. What do you need to learn about these potential jurors? In some cases, identifying tort reformers might be the most important area. In other cases, it might be something completely different, like use of drugs or immigration status. You must have a clear path to probe on these questions completely and quickly when you only have 20 minutes to examine all of the prospective jurors. Have an outline ready. Check off each subject once you cover it so you know you are doing everything you need to do.

Sometimes it is more effective to have the judge begin questioning on a sensitive subject. For example if you have sensitive issues in your case such as drugs, immigration status, or convictions, it might be helpful to have the judge ask some preliminary questions on the subject. This will allow you to identify folks that you might need to dig a little deeper with. This is using your time wisely. You are not asking the initial questions. Instead, your time is being spent on your potentially problematic jurors.

It is equally important to be organized for voir dire. Know everything you need to, going in. For instance, how does the judge conduct voir dire? Is there an 18 pack? 20? Do you have to conduct voir dire on the entire panel first before you begin your peremptory and cause challenges? When you fill chairs after challenges, make sure you thoroughly question the new prospective jurors. You do not want to sit down and realize that you ignored one juror. Along these lines, sometimes people are shy or quiet and do not want to talk about accidents, injuries, and closely held beliefs in a room full of strangers. You need to make sure that you do question the quiet ones. Make them feel comfortable when you do talk to them. If you do not get them talking, you may end up with a very bad juror.

Remember what they say

Some courtrooms will give you both the random list and the alpha list of prospective jurors. In fact, I have only had one trial where the clerk did not give us the random list. Having this list is key in keeping organized. Write each prospective juror’s name from the random list on to the corresponding post-it note. When the judge does the preliminary questioning fill in all critical information and perhaps a phonetic spelling of hard-to-pronounce names.

Then you must take copious notes during your questioning. You may have to develop a shorthand. I personally do not spend too much time questioning folks that I know that the defense will successfully challenge for cause. I spend my time on the bad ones. Make sure you get enough information to be successful on a cause challenge so that you can save your peremptory challenges for the wobblers.

Be yourself

When you are faced with strict limitations, fight for more time if you need it. In my experience when you have them talking, the judge is not going to sit you down. If the judge does tell you that your time is up when folks have their hands raised to respond to one of your questions, make sure that you politely request of the judge to allow you to finish with those who have something to say. You cannot make an intelligent decision on whether someone will be fair and unbiased if you do not have all of the information necessary on which to make that determination.

In the end, be your authentic self. Be empathetic and sympathetic. Above all, listen. This is not your time to do the talking. As you try more cases, voir dire will become easier. As it gets easier for you, you will undoubtedly become more effective.