Some people think a trial is won during opening statement.
This author's opinion is that it is more likely won during
voir dire, when jurors get their first impression of counsel.
Not only are first impressions indelibly imprinted, you never
get a second chance to make a good first impression. So counsel
beware: From the minute you stand up and introduce yourself
to the jury panel in voir dire, you are "on stage" and the
judging has begun.
The following strategies are designed
to assure that jurors will perceive you favorably during voir
dire, and that the setting you establish at the outset of
the trial will dispose the jurors to lean in your direction
as they hear the evidence.
|Engage Each Juror in
In many cases these days, counsel gets
so little time to voir dire that it is impossible to discover
a jurors' potential biases. Too often, the judge does the
voir dire and asks meaningless yes/no questions like, "You
will be able to be fair and impartial in this trial, won't
Under the circumstances, counsel has two
alternatives. You can use the time you have to educate the
jurors about the issues - and try to put your subjective spin
on them - or you can try to establish rapport with each juror
by engaging in a little chit-chat. The former might be easier
to do than the latter, but the latter is more valuable.
The seemingly innocuous chit-chat ritual
plays an important part in the communication process. It replicates
the ritual that animals perform upon first meeting. They "sniff"
each other out. They look at the other, wondering: "Who are
you? Are you like me? Am I safe around you?"
People do the same thing. In the first
minutes of an interaction, we "sniff" each other out and ask
the same questions: "Who are you? Are you like me? Do I like
you?" So these first minutes of an interaction can determine
the relationship you will have with your jurors throughout
the trial. You want the juror to recognize you as someone
like him/her, i.e., from the same species and non-threatening.
During this interaction, give the juror
your undivided attention. Keep the eye contact; do not look
at notes. The visual attention you give your juror allows
you to touch him/her in a meaningful way, changing the interaction
from one of a cross-examination to a conversation.
Try to be sincerely interested in who
this person is, rather than focus solely on the implications
of what he is saying, or whether he fits your juror profile.
You can find out a great deal about a person while chatting
about his job, family, where he comes from, what school he
attended, how long he has lived in the area. Have someone
else in the courtroom who can help you process the information
later. Use those precious minutes to show your interest and
make a connection.
Even if a juror goes off on a tangent
and is not answering your specific question, let her talk.
Research suggests that when people divert from the subject,
they are going in the direction of their thoughts and feelings.
So probing a juror's 'irrelevancies' can uncover interesting
and important information that you would never otherwise discover.
Furthermore, by giving the juror your
undivided attention and allowing her to talk, the other jurors
perceive you as polite and respectful. Jurors especially like
attorneys who are polite and respectful.
After you have finished voir diring a
juror, before going to the next one, take time out to say
"thank you." Too often attorneys forget that small courtesy,
and the relationship with the voir dired juror ends too abruptly.
The juror feels "dumped."
|Find a Common Bond With
The major objective in establishing rapport
with your jurors is to find something that connects you to
them, so that when they look at you, they see something of
If you are using a juror questionnaire,
for example, you might learn that a juror has an adolescent
boy. If you have a boy around the same age, when you voir
dire that juror individually, you might remark about the "joys
of parenting teen-age boys."
Another way to establish rapport is to
find something to which you can say, "That happens to me,
too." For example, in your questioning, a juror may mention
that he doesn't remember exactly what year an event took place.
You might reply, "I hardly remember what took place last month,
so I understand."
Or if a juror shakes her head instead
of saying "yes," you might comment: "I do the same thing in
conversations, too just shake my head but in
the courtroom here we have to let the court reporter get the
Other universal areas around which you
can establish common agreement are the following: Both you
and the jurors ....
- Are a little nervous
- Have had unsatisfactory experiences
with large corporations
- Care about the environment
- Get confused over contradictory evidence
- Want to expedite the trial process
- Sympathize with the plaintiff
- Want to give both sides a fair hearing
- Aim for a fair and just verdict
Humor is one of your most valuable weapons
in the courtroom. Anytime you can get people to laugh, you
have established a leadership role.
Introduce little anecdotes and humorous
comments in your voir dire. Your humor releases tension and
makes jurors feel comfortable. For example, I have seen defense
counsel ask the jurors if any of them use the products manufactured
by her client. When no one raised a hand, she said: "That's
very disappointing. Could some of you give our products a
When talking about where a juror lives,
counsel quipped: "I am reminded of the criminal defendant
who took the stand one time. He was asked the first question,
"Where do you live?" The defendant replied, "Well, that is
what his lawsuit is going to decide."
If your style is to interject humorous
asides into interactions, do so in the courtroom. It is a
powerful communication tool. But only do this if it feels
comfortable for you and is a part of your natural way of interacting.
|Assert Your Leadership
|Your major challenge in the courtroom is
to take control, so that jurors look to you rather than
opposing counsel for guidance and leadership. Try these
techniques for establishing your leadership role:
Set the Rules
|Conduct a group voir dire and set the ground
rules for the group; for instance:
- As defense counsel, you expect that
the jurors will have sympathy for the plaintiff, but it
is not acceptable that they make a decision based on that
- As plaintiff counsel, you expect that
if the evidence warrants it, the jurors will be ready to
financially compensate the plaintiff
- It is acceptable that jurors have biases,
but not acceptable to sit on this case if their biases are
going to interfere with their being open to both side
|Be a Teacher
Jurors are unfamiliar with the court process;
everything is new and strange to them. You will want to be
the person who explains what is going to happen and guide
them through the maze. Here you have to be careful not to
step on the judge's toes, but since jurors know so little
about what is going to happen to them, you can always teach
them something. Keep in mind that when jurors come into the
courtroom, many of them do not know what a "plaintiff" is.
Another area of confusion for jurors is
proper trial etiquette. Explain that you are not allowed to
talk to jurors outside the courtroom, so that if you meet
them in the hallway, rest room or cafeteria, you will not
acknowledge them. You would like to stop and chat, but the
rules only allow a polite nod. Be sure to point out that you
are not being impolite or trying to snub anybody only
following the rules.
Help the jurors understand what they might
be seeing. If your co-counsel will be coming in and out of
the courtroom throughout the trial, for instance, tell the
jurors. Make it a virtue. Explain that since you are a sole
practitioner with a small staff, somebody has to "mind the
store." Be sure to point out that your associate's absence
does not mean that you have any less interest in this lawsuit.
|Make a Sacred Pact With
Acknowledge the higher purpose the jurors
have, i.e., to sort out the evidence and base their verdict
on the facts and the instructions that the court gives them.
Ask them individually or collectively to promise
that they will listen carefully to your case and be open to
your evidence in order to be able to deliberate fairly. Make
this a personal pact where the jurors promise you, as counsel,
to uphold the demands of the law.
The unspoken part of this pact is what
you agree to do in return i.e., be prepared, respectful,
polite, honest, fair and articulate; organize your case clearly;
teach the issues; avoid jargon; keep the jurors awake; stay
in control of the process.
This kind of pact might not seem important,
but it is for both plaintiff and defense. It is important
for plaintiff counsel because it allows plaintiff to take
the high road. Yours is often an emotional case, but you want
to tell the jurors to give you the verdict on the basis of
the merits of the case not on their sympathies. Jurors
know they are not supposed to base the verdict on their feelings.
And they do not like attorneys who they perceive try to "play
on their feelings." By asking jurors to listen to the evidence
and bring in a verdict based on that evidence, plaintiff counsel
sounds fair, and in encouraging jurors to vote on the evidence,
she sounds confident of her case.
Making a sacred pact with the jurors
is especially important
for defense counsel, and for the same reasons. If you have
a sympathetic plaintiff, it is difficult for jurors to send
her home with nothing no matter how vague her case
is. One of the few ways jurors will vote against a sympathetic
plaintiff and feel justified in doing so is if they feel they
have made a higher moral choice i.e., that they have
'listened to the evidence and brought justice based on Truth'
rather than succumbed to their emotions. A juror will turn
away a sympathetic plaintiff in the name of "Justice" and
"Truth," but little else, one suspects.
Without bringing a higher moral principle
into their deliberations, jurors easily slip into sloppy thinking
and simplistic assumptions, i.e., 'if the nursing home patient
slipped and fell and later died, then the fall was the cause
of her death.' This kind of simplistic thinking is devastating
to the defense. One way to stop it is to keep the jurors grounded
in the process, committed to making a decision based on the
concrete facts and evidence, no matter who that disappoints
or how bad they might feel about it.
Defense counsel's challenge, therefore,
is the same as plaintiff's. Both want to encourage jurors
to find the legal hook on which to hang their feelings. For
defense counsel, these feelings are for Truth and Justice.
For plaintiff counsel, these feelings are for Compassion and
Take advantage of these five strategies
during voir dire: Engage in conversation with each juror,
find a common bond with each juror; use humor; assert your
leadership; make a personal, sacred pact with your jurors.
Following these guidelines will set the stage in the beginning
of the trial for positive results in the end.