By Thomas M. O’Toole, Ph.D.
Despite what Allen Iverson might say (search “Allen Iverson” and “practice” on YouTube if you do not get this reference), practice is essential to the successful development of any skillset. In competition, competitors get better by practicing. This is why it is surprising to me that most attorneys do not practice their voir dire before the day of jury selection, particularly when so many also preach about primacy theory and the need to make a good impression right off the bat.
Statistics indicate that fewer and fewer cases make it to trial, which means most attorneys have had few opportunities to conduct voir dire. Even for experienced attorneys, it may have been years since the last time they picked a jury. Additionally, jury selection is not something that comes natural to most attorneys as it is the opposite of what most attorneys are used to doing – arguing as opposed to listening. Many attorneys admit that they do not like voir dire and that it is the one thing about trial that makes them nervous. The anecdote to all of this is PRACTICE. Practice will make you better.
Some of the best attorneys at voir dire that I have seen are former prosecutors. These are attorneys who have spent a lot of time in the courtroom picking juries, meaning they have more practice than most. They have done it so many times that they have honed their skillset and can conduct an effective and efficient voir dire. Despite this experience, some former prosecutors will still tell you that they still practice their voir dire.
This article addresses the importance of practicing voir dire and how to effectively do so.
Let’s start with some clarity on what constitutes practice. I’ve often had attorneys tell me they practiced their opening statement when the reality is that they just sat in their office and silently read through it to themselves. That is not practice. Like opening, true practice requires that you stand up and deliver the voir dire. How something reads on paper and how it sounds when it comes out can be very different. You may find that a voir dire question you have scripted for yourself does not sound right, or is too choppy, when delivered. This is something that should be discovered during practice, not during the actual voir dire. The latter has the potential of making you look disorganized, nervous, inarticulate, and ill-prepared, which is not the ideal first impression. When these mistakes happen in live voir dire, it is not unusual for an attorney to just scratch the question and move on, which means a potentially important issue has been skipped over.
If you are in federal court, practice becomes even more important since you will likely only receive ten to fifteen minutes for your voir dire, which means you must be incredibly organized and efficient. Every error takes away from your precious time to learn important information about your jury pool.
While practicing the delivery of your voir dire by yourself is a step in the right direction, it is even more valuable to practice in front of a group of people. This will create a more “real-world” feel to the practice. It also creates an opportunity to get feedback on your questions. Sometimes, a question makes perfect sense to you, but the potential jurors do not understand what you are trying to ask. Maybe it is because you know the issues in your case too well and certain questions make sense to you, but not too someone totally unfamiliar with the case. Practicing with a group of people will get you that feedback. An easy way to get a group of people is to ask folks from your office to volunteer to meet for thirty minutes or so and play the role of prospective jurors. If you work in a small office, consider getting a group of friends together at your house. Another option is to recruit some mock jurors in order to create a more real-world environment of unfamiliar faces.
As you practice your questions with office members, friends, or mock jurors, track the information that you are learning from their answers. This will help you determine whether the questions you are asking are getting you the desired – that is meaningful – information. Sometimes, the idea of a particular question might seem brilliant, but when you ask it, you find that you do not learn what you thought you might learn.
I have had some attorneys express concerns about some voir dire questions, noting that they will probably only result in a few raised hands. However, this is exactly the point. You only have a few peremptory strikes, so you want to ask questions that identify those ideal candidates for a strike. A question that results in nearly everyone raising their hand does little to help you differentiate genuine strike candidates from the rest of the venire.
This process will also help you plan for how you are going to track the answers during voir dire. Ideally, you will have a colleague, paralegal, assistant, or someone else in court during jury selection who will track jurors’ answers for you. It is incredibly difficult to both conduct voir dire and track all the information at the same time. However, if you have no other choice than to do both, practicing ahead of time will help you figure out the best process for effectively completing both tasks. There are also a variety of jury selection software programs for iPads and PCs out there, such as iJuror or JuryLens, that you may want to consider.
Practice sessions help you hone your questions as well. In many respects, voir dire is an art. Knowing what information you need to get does not guarantee you will get it. The “art” is in crafting questions that make jurors feel comfortable disclosing this information, which involves not only the language, but the delivery as well. This may not be a big deal with simple issues, such as whether a potential juror has ever ridden on a train, but it becomes much more difficult on sensitive issues, such as political beliefs, demographic issues (e.g., financial situation), and other personal issues. Research has shown that people will often answer these kinds of questions based on what they believe the questioner wants to hear or what the socially-acceptable or appropriate answer is rather than providing the honest answer. Consequently, it is important to craft and deliver questions that make jurors feel comfortable being honest.
Even after practicing, it is important that you not be afraid to make mistakes when you conduct your actual voir dire. Everyone makes mistakes and jurors understand this. How you cope with that mistake impacts your credibility. If a question comes out the wrong way or you misspeak, back up and start over. Some light-hearted self-deprecation works wonders here. I have seen attorneys make simple comments (after they make a mistake) along the lines of, “Wow, I really botched that one up. Let me try again.” It is okay to do this. It humanizes you and can contribute to your overall likability in the jurors’ eyes.
In summary, one of the most accurate claims about jury selection is that, while you cannot win your case during jury selection, you can certainly lose it there. Voir dire is a critical moment in any case. It creates first impressions about you as an attorney and about the case. Consequently, it is critically important to practice and refine your strategy so that you can perform at your best. The actual voir dire at trial should never be the first time you “practice” your questions.