Civil Litigation Criminal Law Litigation Strategy Trial Strategy

7 Suggestions for Your Next Voir Dire

Maybe you’ve been doing voir dire the same way for years, or maybe it’s your first time. Either way, check out these ideas for your next voir dire.

1. Don’t use voir dire to educate the jury. Don’t make voir dire a seminar about the merits of your case. If your voir dire begins to sound like closing argument, punctuated only by a juror’s occasional monosyllabic “yes” or “no,” two bad things happen: (1) you stifle conversational give-and-take (the key to discovering juror personality and prejudices) and (2) you risk alienating the judge.

2. Don’t waste time educating the jury about weaknesses in your case. Spend no voir dire time warning the jury about the weaknesses in your own case. Precondition jurors in your opening statement, not during voir dire.

3. Give the jury a chance to express their frustration with jury duty. If a case requires lengthy voir dire, let jurors express dissatisfaction. Here are sample questions:

Q: How long have you been waiting in the jury room? What was it like? Has anyone told you why you have been kept there for two days? [Explain the need to have a jury pool on standby to force settlements in the numerous cases that are being brought before trial courts.]

Q: If you could be King for a Day, would you keep our jury system? Why? How would you change it?

4. Be a good conversationalist. Ask open-ended questions that explore the jurors personalities, attitudes towards issues in a specific civil case, and predilection. Let the jurors speak, rather than monopolizing the conversation yourself.

5. Ask “reverse-spin” leading questions to expose sensitive prejudices. All jurors have personal characteristics they’re reluctant to admit, e.g., racial prejudice, reluctance to presume an accused criminal is innocent until proven guilty. You may be able to get these attitudes into the open, so that the jury confronts them and can be questioned about them, by using a “reverse-spin leading question,” i.e., assume that the jury as a whole shares certain undesirable traits and require the jurors to take initiative if they wish to refute the assumption.

6. Insist that the jury make promises to you, promises you can “call in” during closing argument. During deliberations, jurors will be asked to do some things that don’t come naturally. For example, to ignore evidence that has been successfully objected to; to presume that a person accused of a serious crime by the state is innocent; to treat an individual and a corporation with equal lack of sympathy. Many of these demands will be only partially met. Try to get promises from the jury panel on these issues and remind them of those promises during your closing.

7. Use jury questionnaires. Jury questionnaires offer the benefits of efficiency and privacy. Many judges oppose questionnaires, worrying that they lengthen voir dire because of the time it takes for jurors to complete them and attorneys to then make copies, review them, and reassemble everyone. But using written jury questionnaires may be a valuable tool, and the trial court can’t arbitrarily or unreasonably refuse to submit them as long as they are reasonable. CCP §222.5.

This practical advice is from one of many articles in CEB’s Effective Direct and Cross-Examination, chap 13 on trial skills. For a complete discussion of all aspects of jury selection, including voir dire examination, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 8.

Other CEBlog™ posts you might find useful:

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