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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?
A. No.
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 isn’t right, and knowing it isn’t
right .... like some jobs I’ve worked ....
I don’t know, they don’t do things right sometimes.
Although this voir dire
had some nice open probes, we still don’t know about
the juror’s 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 couldn’t
control.
But that is just the point
in voir dire.
Be Ready to Probe the Unknown
An effective voir dire demands your
taking a leap into the unknown, i.e, asking the questions you
don’t 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 don’t
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 deeper level.
In this case, the next level
of the probe would have been:
Q. What do you mean when you say, "Developers
don’t do things right sometimes?"
Q. What kind of jobs have you worked
which made you feel ‘they don’t do things right
sometimes?’
Q. What have other people told you
about their experiences with developers who don’t do
things right sometimes.
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 don’t 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 don’t do things right sometimes...’"
Resist
the temptation to interpret a juror’s 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 aren’t sure what the juror
meant by his
answer and you can’t think of a follow-up question. The
solution is simple: Repeat the last few words of the juror’s
answer, raising your voice at the end, like you were asking
a question. Then wait for the juror to pick up your cue
and he’ll 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.
Conclusion
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 don’t 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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