Monthly Archives: October 2014

Selling Your Case in Voir Dire: When Poor Strategy Meets Fed-Up Judges

angry judge

By Thomas M. O’Toole, Ph.D.

I am writing this week’s blog post on a plane ride back from the east coast where I just finished picking a jury in Delaware. The jury selection experience there was deeply disturbing. I would normally write the experience off to the random “crazy” judge that I stumble across every once in a while, but this experience is becoming more and more common and has particularly taken hold in the Northeast. It turns out these judges are not in fact “crazy,” but instead, taking extraordinary steps in response to poor attorney tactics during jury selection.

Let me start by outlining the jury selection process I experienced in Delaware. We picked the jury on the Wednesday before trial. The actual trial did not start until the following Monday. There were a couple of pre-trial items to take up with the court, but they were minor (they took about 15 minutes to resolve). Consequently, we had the entire day set aside for jury selection. The judge did not allow any attorney-conducted voir dire (unfortunately, this is common on the east coast). Instead, she allowed counsel for both sides to submit a few questions in advance for the judge to ask. The size of the venire was about 60-70 people. We received a list of all of the people called for jury duty on that day a few days earlier. The list was not only the people called for our trial, but every one else. It consisted of 400 potential jurors. Continue reading