By Thomas M. O’Toole, Ph.D.
Recently, I picked a jury in the Pacific Northwest where the judge provided the attorneys for each side limited time for attorney-conducted voir dire (20 minutes each). While the time allocations for voir dire vary from case to case and from judge to judge, most jury selections involve some sort of time limitations along these lines. In other words, in many case, attorneys probably need more time than they actually receive in order to conduct the kind of jury selection that they would prefer. This has important implications because it means that every choice an attorney makes in his or her voir dire is a trade-off. If an attorney spends time focused on one topic, it takes time away from another topic. Consequently, attorneys are put in the position of having to make some tough choices about how to spend their time.
In this post, I want to highlight five common decisions that attorneys make in voir dire that waste this precious and limited time. In order to help readers better understand the perspective of myself and my colleagues at Sound Jury Consulting, we strongly believe that the best strategy for jury selection is deselection. In fact, deselection is the only thing attorneys actually have control over. This creates two simple burdens in jury selection: 1) identify problematic jurors; and 2) remove them from the venire.
All efforts should focus on deselection. If attorneys are not identifying problematic jurors or making efforts to remove them from the venire, they have adopted a highly questionable voir dire strategy. Let’s look at five common and specific ways attorneys waste precious voir dire time:
1. Trying to “prime” jurors. Primacy theory is popular amongst attorneys. The problem is, while it seems like primacy theory would support the notion of priming jurors in voir dire, there is simply no research to support this theory. In fact, the research on the primacy effect has found that it is opening statement that has the primacy effect, not voir dire. This makes sense. In voir dire, jurors are overwhelmed. They are in a new and intimidating environment that they have not gotten comfortable with yet. They are still coping with the possibility of having their lives rearranged for the next few days, weeks, or months. Finally, they lack sufficient context for “priming” questions to have much effect. Practically speaking, “priming” efforts are counter-productive because they “out” those who tend to agree with with what the attorney is trying to prime them about. For example, these jurors will often nod their head in agreement or offer their own thoughts on the matter. This means the attorney who attempts to prime is only flagging his or her “good” jurors to the other side to burn a peremptory strike on. Why do the other side’s work for them?
2. Spending time with venire members who are not in play. It is very easy to know who is in play and who is not in play. If 14 jurors will be seated (12 plus 2 alternates) and each side has 4 strikes (8 total between the plaintiff and defendant), that means that juror #23 and beyond is probably not in play. Of course, some leeway should be given for cause challenges, etc. Consequently, in this scenario, I usually do not care about anyone after juror #35. In other words, I allow for the possibility that another 13 venire members could be let go as a result of cause challenges. It is certainly up the attorney to decide how much leeway to allow, but certainly, in this situation, it makes no sense to spend time talking to juror #65 since it is extraordinarily unlikely he or she could end up in the box. Such time only takes away from time to get to know the first 35 venire members a little better. I’ve seen attorneys politely inform venire members in the back that they are not going to talk to them much since it is highly unlikely they will make it on the jury. This is a strategy to consider when you are struggling to deal with talkative jurors in the back of the venire.
3. Building rapport. The best way to build rapport with jurors is to be efficient with their time. Jurors respect organization and efficiency. They are less likely to respect pandering, especially when it has no clear connection to what the case is about. While it may feel like you’re building a strong bond with a venire member by talking about how crazy it can be to have young children (because you are both parents of young children), this does nothing to accomplish your goal of deselection and only takes away time from this important task. If you are good at what you do, the rapport will build over the course of trial, starting immediately with opening statement.
4. Allowing individuals to dominate the discussion. Most attorneys have experienced the scenario where one venire member raises his or her hand for every question and gives long-winded stories and explanations. It is important to encourage this openness, but it is also important to know when no more information is needed from a particular venire member. If it is clear that a talkative venire member is a problem, the only reason to talk to him or her is to try to build a cause challenge. If the opportunity for this is not there, it is important to move on and not waste more time allowing this person to dominate the discussion. One easy way to manage this situation is to politely tell that venire member that you appreciate their comments, but you would like to give other venire members more opportunities to talk so you can get to know everyone in the venire better.
5. Using venire members to educate others. Sometimes there is a venire member that would make a fantastic juror for your client, but there is no chance the other side will allow that individual to make it on to the jury. The temptation can be to use that venire member to educate others. For example, if it is a medical malpractice case and the venire member is a doctor, the defense might be tempted to get the doctor talking about how certain medical issues are handled. However, this gets back to my first point; people are not persuaded during voir dire and efforts to do so take time away from other, more important tasks. Furthermore, as with priming, there is the risk that such comments will cause other venire members to chime in with their own agreement, which again means that you have just outed your “good” jurors for the other side to focus their strikes on.