Effective Voir Dire

Description

Get Jurors Talking with a Practice-Proven Approach to Voir Dire

Many lawyers – even seasoned trial lawyers – take a casual approach to jury selection: They show up for court with no prepared questions, and they do more talking than the prospective jurors do. As a result, they learn little about the prospective jurors and are forced to rely on stereotypes and “gut instinct” in making decisions about who should stay and who should go.

Simply put: This approach does not work.

Effective Voir Dire offers a better approach – one that is easily implemented and works in every case, civil and criminal:

• Step One: Analyze Your Case From a Layperson’s Perspective
• Step Two: Write Down and Test Out Your Questions in Advance
• Step Three: Stick to Your Script and Use Proven Techniques to Question Jurors in Court
• Step Four: Use All Available Information to Assess Jurors’ Responses

This four-step approach will help you (a) identify the jurors you need to worry about; (b) get jurors talking, so that they voluntarily reveal the biases that will hurt your client; (c) get more jurors excused for cause; and (d) make well-informed decisions about exercising your peremptory strikes.

800+ Voir Dire Questions at Your Fingertips

Once you know how the four-step approach works, Effective Voir Dire shows you how to use it, by providing sample voir dire for common fact scenarios in six distinct practice areas: motor vehicle accidents; slip, trip and fall; medical malpractice; products liability; employment; and criminal cases.

The voir dire samples are annotated with detailed analyses explaining why a line of questioning is important, what you can expect to learn, and how to assess and follow-up on jurors’ responses. For example:

In an employment case:

Q:        Have you ever worked in a place where people made racial comments or jokes?

• If yes, did you consider the comments to be generally harmless or to be harmful?
• Did anyone complain about it?
• Was the conduct so significant that you think a lawsuit should have been filed? Why? 

Analysis: Both plaintiffs and defendants will learn a lot by asking “Do you think a lawsuit should have been filed?” Not only will you learn whether the juror views the comments as harmful, you also will learn where the juror falls on the “lawsuit” spectrum. Most people think lawsuits should be reserved for only the most serious matters. Therefore, if a juror describes horrible comments and vehemently objects to a lawsuit, or, conversely, describes innocuous comments and vigorously supports a lawsuit, you will get your money’s worth out of this question.

In a medical malpractice case:

Q:        What basic expectations do you have for doctors in caring for a patient?

Analysis: “Expectations” are different than “qualities.” Qualities are what a juror is looking for in a provider, e.g., “good listener,” “really smart,” “willing to stick with a problem until a solution is found.” Expectations apply to treatment. Does a juror expect a doctor to solve the problem? To solve it quickly? To confer with experts in the field to get to the bottom of something? Or, does the juror say, “Gee, I never really thought about it. I guess I expect them not to make me sit too long in the waiting room.” You want to know what jurors’ expectations are so that you can meet those expectations during the trial or, if the facts of your case are such that you cannot meet those expectations, try to get the juror excused.

In a criminal case:

Q:        Do you think the government’s practice of giving out more lenient sentences to cooperating witnesses is a good thing or a bad thing? 

Analysis: A prosecutor might not like the phrasing of this question, but that is the practice: Leniency is granted in exchange for cooperation. Some jurors have a real problem with this. Defense lawyers want to know if jurors are “all for” any means of getting a conviction. Prosecutors need to know if this will undercut their case and cause a juror to discount any testimony that comes out of a cooperating witness’s mouth. This question also begs for follow up.  The prosecutor needs to identify exactly what about this practice bothers a juror and why. A defense lawyer needs to know if a juror thinks this is a good thing or just an acceptable part of the system, and why.

Practice-Focused Guidance 

Effective Voir Dire provides practice-focused guidance you can put to use immediately to help you objectively evaluate your case; improve your in-court interaction with jurors; and achieve better results for your clients. For example, you will learn:

• Six questions to ask in advance of jury selection in a slip and fall case;
• Six key questions for analyzing a product liability case;
• The five biggest mistakes lawyers make with voir dire and how to avoid them;
• How to address the two levels of bias that impact every case;
• Three reasons not to waste your time with the “bumper sticker” question;
• Why “bonding” with jurors is overrated;
• How to weigh jurors’ non-verbal cues;
• How to identify and handle the four types of “hanging” jurors;
• Ten questions about money damages and liability to ask in every civil case;
• Twenty-two questions for defense counsel to ask in every criminal case;

And more!

Revision 1 Highlights

Effective Voir Dire gives you the tools you need to get more jurors excused for cause; make informed decisions about exercising your peremptory strikes; and handle voir dire with confidence. The highlights of this new edition include:

• Examples of how to use social media research to (1) help you prepare for the unexpected during voir dire; and (2) uncover jurors who purposefully hide their true beliefs.
• New questions to assess “phone addiction” and jurors’ daily cell phone habits.
• A cautionary note to guard against labeling (e.g., “anti-vaxxers” and political affiliation) as an extension of stereotyping.
• New questions to uncover jurors’ feelings on big issues/social movements, including #MeToo; BLM in the workplace and in cases involving law enforcement; and abortion.
• New questions re: motor vehicle accidents involving specific situations and types of drivers, e.g., bus accidents; accidents involving police and emergency vehicles; hazardous conditions; distracted drivers; aggressive drivers; inexperienced/younger drivers.
• New questions re: the importance/effectiveness of warnings in a products liability case.
• Analysis of key issues in sexual orientation discrimination cases, plus sample questions to help uncover latent and entrenched biases against members of the LGBTQ community.
• Tips for how to approach employment cases involving transgender discrimination, plus sample questions to give you sense of where a juror’s biases fall along the continuum.
• Analysis and sample question to root out jurors’ feelings about sexual harassment: zero-tolerance policies; what conduct amounts to harassment.
• New questions re: mental health disabilities and employer accommodations to allow work-from-home.
• New questions re: employer accommodations for drug/alcohol addiction.

ABBREVIATED TABLE OF CONTENTS

Chapter 1 Debunking the Myths
Chapter 2 A Systematic Approach
Chapter 3 For Cause and Peremptory Challenges
Chapter 4 Developing Questions in a Civil Case
Chapter 5 Motor Vehicle Accidents
Chapter 6 Slip, Trip and Fall Cases
Chapter 7 Medical Malpractice Cases
Chapter 8 Products Liability Cases
Chapter 9 Employment Cases
Chapter 10 Criminal Cases
Chapter 11 Using Written Questionnaires

ABOUT THE AUTHOR

Carolyn S. Koch, J.D., is a trial consultant and the principal of Jury Solutions LLC, in Fairfax, Virginia (www.jurysolutions.com).  An attorney admitted to the Connecticut and D.C. Bars, Ms. Koch has over twenty years of experience with in-court assistance during jury selection, as well as conducing mock trials, focus groups and online research projects.  She uses these tools to assist trial attorneys in both civil and criminal cases, all over the country.

Her consulting practice has ranged from large corporate clients such as McDonalds, Wal-Mart, Lockheed Martin, Bechtel, and Exxon Mobil, to small and medium-sized companies.  She has also successfully worked with many individuals in high-stakes litigation against defendants with far greater financial resources.

Her work has helped plaintiff’s employment lawyers achieve some of the highest verdicts in New Jersey state history, including a 10-million-dollar punitive damage award against Avaya Corporation.  She also assisted the defense in the high profile criminal case of United States of America v. Richard Convertino, a former AUSA for the Department of Justice who was acquitted of all charges in one day, after a four-week jury trial.