The most difficult part of voir
dire is getting jurors to talk. If you can just get them to talk
- about anything - they will reveal information about their attitudes,
experiences, predispositions which are important for you to know
in your jury selection. There is gold in them thar hills;
the problem is how to dig it out.
The following excerpt was taken
from a voir dire by an attorney representing a real estate developer.
He begins by asking:
Q. What are your general attitudes about
people who develop real estate?
A. Well, some are good and some are bad.
Q. Do you have in mind any specific developers
who you feel are bad?
Q. How did you come to the decision that
some developers are bad?
A. Well, sometimes if you talk to people
about their job, they say something about having
to do something that isnt right, and knowing it isnt
right .... like some jobs Ive worked .... I dont
know, they dont do things right sometimes.
Although this voir dire had
some nice open probes, we still dont know about the jurors
attitude toward developers. He thinks some developers do bad things,
but we do not know what those bad things are or how they might have
affected this juror. The attorney stopped the probe too soon, probably
because he sensed he was moving into dangerous waters that he couldnt
But that is just the point in voir
|Be Ready to Probe the Unknown
An effective voir dire demands
your taking a leap into the unknown, i.e, asking the questions you
dont know the answer to.
Leaping into the abyss flies in
the face of traditional wisdom. But in voir dire - unlike cross-examination
- if you know the answer, you dont have to ask the question.
So when you need jurors to open up and talk about their beliefs
and feelings, you have to be ready to probe uncharted waters.
Attorneys fear probing the unknown
not only because it is unnerving - given their training in keeping
control of the information flow - but also out of concern that a
juror might reveal biases against their client and contaminate other
jurors. Or they fear a juror might reveal biases in favor of their
client and be struck for cause.
In voir dire, you face the fact
that a potential bomb might be sitting on the panel, ready to explode.
The only question is whether you want to know in whose face? If
you choose to know, you have to be ready to take the probe to a
In this case, the next level of
the probe would have been:
Q. What do you mean when you say, "Developers
dont do things right sometimes?"
Q. What kind of jobs have you worked
which made you feel they dont do things right sometimes?
Q. What have other people told you about
their experiences with developers who dont do things
You continue the probe until you
hit pay dirt, i.e., when the juror reveals enough about himself
that you can make an intelligent strike decision.
|How to Probe Effectively: Three Techniques
Ask open questions
Open ended questions encourage
people to talk; closed ended questions do not. So in voir dire,
ask open ended questions.
Open questions begin with what,
how, could you, would you. What
questions elicit information. How questions encourage
jurors to talk about feelings. Would you and could
you questions will elicit either information or feelings.
Avoid asking why questions
because they put jurors on the defensive. Avoid asking questions
in a series, one right after the other, because they make jurors
feel like they are being interrogated.
|Repeat the words the juror uses
One of the most
effective ways to encourage jurors to talk is to use the same phrases
in your question that they have used in their answer. When a juror
says: " They dont do things right sometimes ...."
then in your probe, you will want to repeat the phrase your juror
used, i.e., "Could you tell me what you mean when you say they
dont do things right sometimes..."
Resist the temptation
to interpret a jurors phrase, or to make assumptions about
what the juror means or to rescue him by ending an unfinished sentence.
By changing the wording, you are redirecting the jurors thinking
along your lines, instead of probing the juror to find out what
he means. Give jurors the time and space they need to feel comfortable
about revealing themselves to you; this means following your jurors
instead of leading them.
|Give verbal and nonverbal cues to
keep jurors talking
Sometimes you might not know how
to phrase your next probe. You arent sure what the juror meant
by his answer and you cant think of a follow-up question.
The solution is simple: Repeat the last few words of the jurors
answer, raising your voice at the end, like you were asking a question.
Then wait for the juror to pick up your cue and hell continue
talking. Jurors - like everybody else - love to hear their words
repeated back to them. By doing so, you are communicating that you
have heard them, are interested in what they have to say, and want
them to continue talking.
Other listening responses which
keep the conversation going are the little grunts and nods that
we naturally give people when we are interested in what they are
saying. We will urge them to continue by nodding our heads and softly
mumbling encouraging words like: huh, and......
go on...., is that so? and then what.....?
it was Tuesday morning, and ......?
These seemingly insignificant verbal
and nonverbal cues are crucial to the communication process. When
we do not get them, we stop talking. Too often, during voir dire,
attorneys fail to give jurors the listening responses jurors need
to answer questions in any detail.
Dare to probe deeper in voir dire.
Ask open questions, repeat the words of your jurors and give appropriate
listening responses. Using these probe techniques will turn an interrogation
into a conversation, as well as help you through those awkward moments
when you dont know what to ask next.
The key to an effective probe is
to be genuinely interested in what your jurors have to say. When
you are open and interested in them, you will naturally ask open
questions and give listening responses which will stimulate the
jurors to open up to you.
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