Expert Advice

By Dan L. Stanford
     
      Jury Practice
      Voir Dire Savoir Faire
      In 31 years of trial practice, what I've learned for certain is that juries are unpredictable, there is no perfect juror, and you will have surprises every time you interview jurors at the end of a trial. However, a number of suggested approaches to voir dire can help ease the pain and anxiety of jury selection.
      Select the theme of your case. Long before you stand up to select the jury, be sure you have a short, powerful theme with which lay people can easily identify. Any trial lawyer will tell you this is the key to success, especially given jurors' short attention spans, which seem to grow shorter every year.
      Reinforce your theme. Make sure that your questions to prospective jurors support your theme. For example, if your theme is about violations of trust, outline questions relating to jurors' experience of placing trust in other people as well as misplaced trust.
      List both the strengths and weaknesses of your case. Make a short list of the strong points in favor of your client and then of the weaknesses you have identified in your case. Your complete list will help prepare you to deal with them during the trial.
      Create questions to bring up both favorable and harmful facts. Ensure that your questions include all of the areas of strengths as well as weaknesses of your case. In fact, be the first one in the courtroom to bring out the weaknesses. It will throw opposing counsel off guard?and convince jurors of your good faith.
      Remember the purposes of voir dire. Your goals in standing up before the prospective jurors are to find out about their biases and prejudices, to establish your credibility, and to convey and reinforce the theme of your case. Make sure your prepared questions meet all three goals.
      Keep it interesting. There is nothing worse than a dull and boring voir dire, except perhaps for a dreadful opening statement. Either one can lose a case for you. You can make your jury selection interesting by asking both group questions and individual questions, and by using both open-ended and leading questions designed to get the "yes" or "no" you want.
      Also, don't go down the rows of jurors in order, but move around the panel with your questions.
      Starting with juror No. 1, then going to juror No. 2 and so forth only ensures one thing: Jurors 9 through 12 will either be asleep or focused on projects they have at home or work.
      Avoid repetition. Try not to repeat things the jurors have already said about themselves. Doing so only shows that either you are not paying attention or you don't know what you are doing. Don't ask questions such as "Do you think you can be fair?" Or "Will you be biased because ... ?" Prospective jurors will rarely admit to being unfair or biased. Instead, come up with creative questions designed to allow you to determine whether the prospective juror can be fair or is biased.
      Finally, engage each one of the members on the panel during your voir dire even if the judge uses a large group of prospective jurors.
      Watch as well as listen. Look at the prospective jurors and start to make some judgments about them. Is a young prospective juror dressed in a coat and tie as if this is the biggest day in his life? Is one juror carrying a professional-looking briefcase? Is a prospective juror reading a novel and, if so, what type of novel? If you pay attention to nonverbal information, you can learn almost as much as you will from the answers to your questions.
      Spend time with any juror who clearly will be excused. Some lawyers make the mistake of avoiding voir dire of any prospective juror who obviously will be excused by the other side. Instead, try engaging that juror and coming up with strategic questions that will enlighten?that is, prejudice?the other jurors.
      For example, if the client you are representing has been cheated or defrauded by the defendants, spend time drawing out any prospective juror who mentions a similar experience in his or her background.
      Craft effective wrap-up questions. Design some questions to conclude your questioning and elicit any relevant information you may have missed. Good examples include: "Have I said anything this morning that causes you any concern about acting as a juror in this case?" Or "Have any of the other prospective jurors said anything this afternoon that has caused you to think of an additional comment for us today?"
      Memorize the last names of the jury panel. You will be surprised how easy it is to memorize 18 to 24 names. This simple gesture, which may seem like a trick, makes a lasting impression on the jurors as to your competence, abilities, and credibility?which can go a long way toward helping you win your case.
     
      Dan L. Stanford (dlstan@pacbell.net), a principal in Stanford and Associates in San Diego, concentrates on representing plaintiffs in professional liability cases.
     

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