Voir Dire: Picking a Jury

Voir dire means “to speak the truth.” It’s the term lawyers use for jury selection.

Jury selection is a big part of every case. The goal is to pick a jury that’s going to be fair to both sides. And the reality is that the 12 jurors selected are going to decide who wins.

Here are my objectives for jury selection:

Establish Rapport

Trials are a battle of impressions. First impressions are formed during jury selection. Jurors decide whether or not they like the lawyers and if they can be trusted.

I try to do as little talking as possible. When I do talk, I like to express vulnerability. Because for many jurors it’s the last thing they expect after watching trials on TV and in the movies.

I also do it because jurors will model behavior. If I’m vulnerable, they’ll be vulnerable and share how they really feel about issues.

Lay a Foundation

I like to know where I want to finish before I start. When we’re picking the jury I already know what the big issues are going to be in closing argument. And I want to lay a “foundation” for those issues early.

That foundation can be establishing shared language (how are we going to describe a certain idea or issues).

Or it can be de-sensitizing an issue that the defense is going to want to attack later on.

The list goes on and on. But the common thread is knowing in advance what you want to say to the jury at the end of the case.

Figure Out What and How They Think

Some lawyers go into voir dire with the goal of persuading jurors. It’s futile. And the Judge will likely shut it down. (Having the Judge scold you right off the bat makes it difficult to establish credibility.)

The objective of voir dire is to find out what the jurors really think about the issues that are going to be most important to your case. We have a brain injury trial coming up. We represent an artist who is brilliant and somewhat unconventional.

I’m going to want to find out about how the jurors feel about the following topics:

• Brain Injury

• Artists

• People Who March to a Different Drummer

I don’t care what they say. What I want way more than anything else is for jurors to tell me how they really feel. Because that is going to help me pick the best jury possible.

Ignorance is not bliss. Ignorance is scary when it comes to jury selection.

Some potential jurors raise their hands after every question. Some of them never raise their hands. So it’s important to call on them.

What I really like to do is say: “Juror No. X, we haven’t heard from you yet, how do you feel about what Juror Y just said?”

When it works it’s great. But frequently Juror X—because they haven’t participated—is going to answer the same way my kids do when I ask them what they learned in school today: “I don’t know.”

So I like to have a backup question ready. It should be a simple, open-ended question that requires some description and something that people like to discuss. And it should be purposeful.

Disqualify Potential Jurors for Cause

So there are two kinds of “challenges” that lawyers can use to prevent a potential juror from being selected for the jury.

In every case lawyers are given a certain number of “peremptory” challenges. Usually three or four. That means that they can strike a potential juror for any reason (other than race, etc.).

The other kind of challenge is called a challenge for cause. And cause in this context means that the juror—despite their best efforts—just can’t follow the law or be fair to one side.

One thing I like to do—that catches everyone off guard—is using challenges for cause on jurors who clearly would be super-favorable to our clients.

Sometimes I ask: “Does anyone have strong feelings about personal injury cases where the injured person is seeking money for what they’ve lost because of their injuries?”

Potential jurors will raise their hands. (It’s actually their number cards, but let’s use “hands.”) I’ll call on one of them. She’ll say: “Mr. Myers, I have strong feelings. I read in the paper about all these cases where the injured person recovers millions of dollars. I think that’s ridiculous. Someone’s health isn’t worth millions of dollars. It’s worth hundreds of millions of dollars.”

Now in my heart I want this lady on the jury. But in my brain I know the judge is going to disqualify her if the other side brings a challenge for cause. So I beat them to it. I make a challenge for cause and say that it’s apparent to me that she just can’t be fair to the defense. And if she can’t be fair to both sides, I don’t want her on the jury.

That lets the jury know that for me the trial is just a search for truth and that I can be trusted. It also makes it a lot more likely that the Judge is going to sustain the challenges for cause I make against the potential jurors who clearly favor the defense.