SEVEN BASIC RULES FOR CONDUCTING VOIR DIRE CORRECTLY

Conducting a helpful as well as a  meaningful voir dire examination is both an art and a skill. However, however there are some fundamental rules for doing it right. Here are seven basic rules for conducting a good voir dire.

1.  STAY FOCUSED

It’s critical that you stay focused on the key issues in your case and  case story you want to communicate. There are a limited number of key issues that you will have time to cover in jury selection. Usually these will include one or more of the following: (1) negative facts that will come out in trial involving your case (2) tort reform considerations (3) significant liability issues (4) damage issues and (5) the basic client story theme. Determine the priority of the issues. Limit your questioning to those. You want time for discussion.

Use open ended questions to get discussion going. For example:

1. How do you feel about?
2. What you think about? Why do you feel that way? Please explain a bit more? Can you give me an example?
3. How do you make a decision about?
4. How important is that to you?
5. Have you ever had an experience where? Please share that experience with usPlease tell us more.

2. HONOR THEIR ZONE OF PRIVACY

A “zone of privacy” is the distance between two people who are talking to each other where each feels comfortable about the space between them. Different cultures have different zones of privacy. In some cultures, one has to be very close to the other person while in other cultures anything less than 3 feet feels like an invasion of space. The appropriate distance depends in part on how well the parties know each other. In jury selection you should begin at least 12 feet away from the jury. You don’t know the jurors well enough to put materials on the jury rail or stand at the jury rail leaning over a seated juror. Be aware of the fact that jurors are seated and you are standing in establishing the appropriate distance to question them from.

3. IT IS A CONVERSATION, NOT AN INTERROGATION

Your goal in jury selection is to create discussion by making people feel comfortable in giving answers to your questions. Your state of mind should be that you are conducting a conversation as you would at a social function – open minded, smiling and interested in what they are saying. When asking follow-up questions, do so from a perspective of interest and not cross examination or interrogation. Never show annoyance at an answer. Encourage honest answers.

4. THANK THEM FOR ANSWERS EVEN WHEN YOU WISH THEY HADN’T SAID IT

We know from studies that a negative response from up perspective juror does not have the power to “contaminate” the thinking of other jurors. People don’t change their mind about opinions they hold or adopt new ones just because someone in a group publicly makes a strong statement of their opinion. Consequently, we should not rush to argue with someone who says something we wish they hadn’t said during jury selection. In fact, you want honest answers, not just what you would like to hear. Therefore you should be grateful for an honest answer. You can’t exercise challenges for cause unless you know how people really feel. More importantly, you need to reinforce honest answers by sincerely thanking the person for sharing. You want the panel to feel comfortable telling you anything they want to say. That’s how you get honest discussion going. A response that indicates you sincerely appreciate their honest answer followed by the encouragement: “there are probably others here who feel exactly the same way”  allows you to then ask “how many of you agree with what was just said?” That will allow follow-up discussion.

5.  LISTEN. NO, REALLY LISTEN

In jury selection, as well as all other communication, the first, second and third rule for great communication is to listen! Your rule should be that if you are using notes, you do not start speaking until you have first made eye contact with the person you’re talking to. You do not look down at your notes or look away or break eye contact until that person has finished talking and there is a slight pause before you do so. Eye contact is how we know we are being listened to. Pay attention to what is being said. Respond to what is being said and not your next note. If a prospective juror tells you that their son was injured in a similar way, express sympathy before you begin asking about it. Be a good listener.

6.  MAKE IT SHORT AND UNDERSTANDABLE

Communication is not what you say. Communication is what the other person heard you say and understood. All communication should be understandable. Jurors are uncomfortable and nervous. They often have trouble understanding exactly what you’re asking. Make your communications short and simple. Don’t use technical words. Don’t make speeches. You want the prospective jurors talking 85% of the time and you talking 15% at the most. Use open-ended questions that are short and encourage honest responses leading to discussion among other jurors

7. TALK AT AN UNDERSTANDABLE RATE OF SPEED

When we are nervous we talk fast and often run our words together. Make a conscious effort to slow your rate of talking speed down and have voice inflection so that it is not a monologue. Consciously pause after you receive an answer before you start to say something back. This is not a rapid interrogation. It is a friendly conversation. Don’t be reluctant to pause and indicate that you are considering the answer before proceeding. A slow pace is relaxing and shows self-confidence as well as professionalism.

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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