I have taught at the Spence Trial College and written in this blog about the approach Gerry Spence advocates in jury selection. https://plaintifftriallawyertips.com/gerry-spence-voir-dire-questions It can be roughly summarized as focused on building rapport through open, nonjudgmental discussion. It is not closed ended questions intended to dictate ideas. They focus on how the juror feels about subjects after he has first shared how he feels. Here is an example from Spence’s last civil case in Iowa:
Now let me ask you about this business of sympathy. Were all human, we want to be sympathetic. I have to start with me, and I’m going to say that I’m going to forget all sorts of things and I am as old as Methuselah and I ask for no sympathy for me. Nobody asked for sympathy for anybody here. I don’t want sympathy for my client because sympathy is cheap and I don’t want sympathy for all police officers either. All we want in this case is justice, that’s it. Justice. Are you all okay with that? Anybody have any problem with that? No sympathy. I would hate to go home and say “well they felt sorry for me so they gave me the $50,000,000 I was asking for.” I want to hear from each of you. How do you feel, each of you by taking on this job as a juror?
One of the difficulties we have in using this voir dire approach is the imposition of time limitations most judges or court rules impose. Judges are increasingly inclined to believe the entire voir dire process is a waste of valuable time or even unnecessary. They commonly limit the time for jury selection irrespective of the skill of the lawyers conducting it or the issues in the case which make fixed time rules unfair. This makes the Spence approach difficult to use as intended. Where group voir dire is allowed the traditional approach has been to ask questions of the entire panel in light of time limitations. Here is an example of a group voir dire in a more traditional manner conducted by Joe Jamail in the Pennzoil company vs Texaco damage lawsuit:
- “Is there anyone who cannot accept that as evidence of whether Pennzoil and Getty thought they had a binding agreement on the 3rd of January?”
- “Now the evidence will show by at least one acceptable measure, by expert testimony we will present to you that Pennzoil was damaged in the amount of seven billion five hundred million dollars, a great deal of money. Now I know that is an astronomical amount of money, but if we are right and we prove our case by a preponderance of the evidence …is there anyone in the first row who has any reason to believe that because this is such a large amount of money that regardless of the loos and the proof that you would not be able to assess this kind of money damages…?”
It has become a challenge for us to find ways develop a rapport, identify the values and beliefs of the jury panel while also obtaining relevant demographic information with the unreasonable time limitations commonly imposed. Here are some thoughts to consider. To start with, do not try to avoid time restraints by talking fast. You need to speak at a slow pace with pauses or the impression is the weatherperson who has only few seconds to tell viewers all the information. You don’t develop relationships nor engender leadership qualities by talking fast. Consider a combination of styles. You can select a few primary subjects and use the Spence approach. That could well include some case problem issues and significant legal issues like sympathy. You could combine that with questions addressed to the panel with raising hands as a response. In addition, you could select specific people to ask a question and then ask how many agree or disagree. While I am not a fan of written questions to the panel that could be helpful in particular cases. Here are some general questions which can and probably should be asked:
- If you were John, sitting here, would you be comfortable having you as a juror in this case? Why? (It’s a way for the juror to mentally put himself or herself in your clients shoes even if momentarily)
- Is there anything you haven’t been asked that you think it might be better if we knew? (Be wary of the non talkers and often people don’t volunteer information they should)
- Can you think of anything in your own life that somehow reminds you about what happened in this case? (It’s very important to find out about past significant life experiences the juror somehow relates to this case as they often dictate the decision)
- What are some of the most important values we should teach children? (Beliefs and values control our decisions irrespective of the evidence)
In addition, consider the importance of framing. Neural Linquestic Programing (NLP) has helpful information about words and phrases that have particular impact. The well-known book Words that Work by Frank Luntz identifies words that phrases that have emotional impact. Marketing experts are fully aware of the significance of words and phrases in advertising. We should consider being deliberate about using these words in our voir dire.
Here are some examples. Eliciting an image in the mind of the juror that favors your position produces subconscious results. The italicized portion are the words of art in this regard. They require one to pause in one’s mind and search which has a direct connection to the unconscious and can plant a seed of thought.
- I’d like to get your reaction. I’d like to get your reaction. Suppose after hearing all the evidence your verdict is for John. Could you see yourself feeling really good about doing the right thing?
- What’s it like when What’s it like when you have an opportunity to do something important for not just a client in a case like this, but for you, your family and the community?
- How would you feel How would you feel if you decided $10 million dollars was a fair and reasonable verdict under the law and evidence?
- If I were to ask you what is important about If I were to ask you what is important about eliminating a defective product from causing death or injury, what would you say?
- Imagine (One of the most emotionally powerful words we can use) Imagine you are on a jury that accomplished a very important principle that benefited a lot of people. How would that make you feel?
Learning to learn how to deal with a juror’s adverse response is important. Arguing is a mistake, but more important, takes valuable time you doing have. Letting the person fully express without interruption is essential. Here is a way to respond. I fully agree and I would add. I fully agree there are too many frivolous lawsuits and I would add that it reflects on genuine, valid cases like this one.
Another technique involving a negative response or believe uses a “parts” approach: I know there is a part of you that objects to people filing lawsuits like this. But there is probably another part of you that is in favor of justice for those who deserve it, am I right?
There are what are known as “trance words” which salespeople and advertisers know have a subconscious impact on the listener. These include imagine, visualize, remember and wondering. For example, “I am wondering how you would feel about having the courage to do what is necessary to right a wrong.” These are just a few thoughts about this important subject.
The most significant step is recognizing and planning for limited time after filing a motion for additional time. This means outlining the problem areas in your case, the significant legal points and having a story line you advance through questioning. A one page outline with notes should allow you to maintain eye contact while keeping yourself aware of time limitations. Plan ahead and use the right framing for the right issues. to discuss.