Most veteran trial lawyers will agree that while a case is not always won in jury selection, it can easily be lost there. In this article a nationally-known jury expert talks about the purpose and goals of voir dire, when to start planning for voir dire and the one secret that 90% of lawyers fail to use, but that can mean the difference between getting the jury you want and getting the jury of your nightmares.
Most veteran trial lawyers will agree that while a case is not always won in jury selection, it can easily be lost there. It is one of the three most critical junctures of any trial (the other two being opening statement and cross-examination of the first witness), yet voir dire usually is relegated to the proverbial back burner, only to be attended to in the waning days—or even hours—just before trial begins.
The construction of voir dire needs to start weeks before your case gets to trial, after you’ve conducted your pre-trial research (you have conducted pre-trial research, haven’t you?) and you are starting to prepare your case-in-chief in earnest. If you find yourself waiting until Saturday or Sunday before trial, jotting some questions down on a pad and then getting up in court on Monday and conducting your voir dire, without the benefit of research-based profiles or of rehearsal, you could well be missing out on the opportunity to educate your jurors and to weed out those most dangerous to you.
The Purpose of Voir Dire Is NOT To Determine if Jurors Can Be Fair and Impartial!Sorry, but there is no such thing as an impartial juror. Every person who arrives in the courtroom—juror, lawyer, judge, clerk, court reporter, bailiff—brings two things:
1. Life experiences.
2. The attitudes that are a result of those life experiences.
So, the purpose of voir dire is to uncover those attitudes and experiences, get jurors to talk about them, and then send home the folks who have attitudes that are hostile to your case and/or your client.
The Key Purposes of Voir Dire
Your Goals in Voir Dire
Do you go into trial without practicing your opening statement? Then why not spend time rehearsing the part of the trial when you speak to jurors first? If you don’t practice your voir dire, why not? If you do practice voir dire, do you practice with people in the room? If you practice with people in the room, are these laypeople? If these are laypeople in the room, do you ask them for their feedback on how this voir dire made them feel? If you ask them for feedback, do you apply it to your voir dire going into trial?
The bottom line is, your voir dire—not your opening statement—is when you make your first impression on the jurors. Make the most of the opportunity. Practice, refine your voir dire.
