Batter up!
How to Create a Winning
Voir Dire Strategy with the Right Strikes
How can you make sure you are maximizing your strikes and winning the ultimate game of voir dire? As you get three strikes in most venues, it’s crucial to keep your focus so, when the time comes, you can use your precious strikes wisely. Knowing what to say and how to comport yourself will help you to discover which jurors are not suited for your case and helps establish your trustworthiness, which are the keys to a winning voir dire strategy. Pardon the baseball analogies (it is the season!), but here are some game-winning tips from your jury consulting coach:
- Keep your eye on the ball.
The most important goal of voir dire is to strike the jurors who are the most biased against your client and their case. Many attorneys spend more time thinking about “who do we want?” when in fact the pressing question is “who don’t we want?” The most helpful questions to ask are those that help jurors express attitudes that are negative about your case. And, attitudes that are specific to your case are often directly correlated to your decisions about who to strike and who to keep. Since time for team discussion after voir dire is limited, focusing on which jurors to strike will be the most efficient use of your time. Do not waste time “starting at the top of the list” or talking about “who do we want.” You can keep an eye on the big picture but, most importantly, keep your eye on the ball.
- Hit the sweet spot.
We mentioned that attitudes about the case are important questions that can be asked but many others are also in the sweet spot of what to know. While demographics are often part of jury profiles, they are easily determined based on the jury questionnaires and seeing jurors either online or in person. Certainly socioeconomic status derived from an address or a neighborhood can be helpful (particularly if the area has certain political leanings), but individuals will vary so it is best to concentrate on what the person in front of you tells you about their attitudes and experiences rather than relying on single demographic categories or stereotypes. Our experience during voir dire suggests you should focus on more definitive subjects, such as:
- Personal experiences, especially those related to the case themes. For example, being a caregiver or having injuries themselves in a personal injury case. But remember, these attitudes can cut both ways.
- Job descriptions and management responsibilities – don’t forget those of their family members with whom they will likely discuss the case despite the admonition not to discuss
- Opinions on corporations (e.g., “Big companies don’t care” versus “Big companies are the backbone of this country”)
- Glimpses into their views on government control, including regulations or political views which can be determinative depending on the case
Experiences, job responsibilities, opinions about corporations and the government may be predictive of attitudes in your specific case. Rather than stereotypes, these bits of information allow you to create a more reliable vantage point regarding their potential opinion of your case.
- Show your sportsmanship and etiquette.
Respect for the court is important – respond respectfully to the judge and to opposing counsel and avoid being sarcastic or taking cheap shots with your questions. Be respectful of jurors’ time as well as of their privacy. Respecting what may be limited privacy in this situation can be done by reminding jurors that they can ask for a private opportunity with the judge if the question is too personal or involves issues like a health concern. Another sign of respect is to make eye contact while a juror is answering a question and respecting the information they share.
Being genuine in body language and gestures and reminding them that the reason you are asking these questions is not to pry but to find out whether they can be open to both sides of the case, can lead to more open communication. Think of it as finding out if both parties are starting out on a level playing field. This kind of communication fosters the honest, uncensored information you need to determine who to strike.
- Keep the hand signals behind your glove.
Just as you use your strikes with a strategic balance of analytics and professional judgment, you must weigh protecting your more favorable jurors with the same keen approach. While it is a general rule that it is better to have information about jurors than avoiding tough questions, you will find that asking about certain issues will surely expose the people that you think will likely lean toward your side, showcasing their potential bias to the opposition. After all, they will want to dismiss the very people you want to keep. (Another reason not to focus on who you want on your jury—your favorites will likely be struck by the other side).
You can help shield a juror’s positive opinions from the opposition by avoiding asking questions that offer narrow perspective of their opinions. Create questions that require more generic feedback but do not propose concrete answers solidifying their stance. Also, think of it this way: let the other side ask questions that will elicit their strikes, do not help them in this regard. Creating strategic questions is what jury consultants live for in the voir dire process.
The game day “wrap up.”
While most people believe that opening statements start the case, it is voir dire that sets the field and readies the players. And while many think that opening statements are the most important part of trial, selecting (or de-selecting) the jury weighs just as heavily.
It’s important to put best practices into play as you prepare for and conduct voir dire questioning. Knowing which questions to ask, and which questions not to ask, could be the difference in the outcome of your case.
