Few things are more frustrating for a jury consultant than voir dire ending with the feeling that we did not learn anything particularly meaningful about the jury. It happens much more often than one might think, in part because it is difficult for some attorneys to appreciate how they could talk directly with the venire for thirty minutes and not learn anything valuable. Instead, we are left trying to extract insights from such trivial facts as Juror #14’s decades old DUI conviction or Juror #27 being an engineer. We have published extensively on the most effective strategies for voir dire and this blog post is not going to be a regurgitation of that. Most attorneys we work with buy into the deselection approach to jury selection, so the problem is not always one of philosophical disagreement. Instead, we frequently have situations where the attorney agrees with a deselection approach but runs out of time before he or she gets to the key deselection questions.
Time management in public speaking settings is something most do not think about even though a public speaking setting wreaks havoc on a speaker’s sense of time. When I was in graduate school, I taught public speaking and the most common concern I heard from my students was that there was “no way” they could fill a whole 7-minutes of speech time, only to have them end up speaking for 20. I also see it routinely with attorneys at mock trials. Attorneys tell me their presentation is roughly ninety minutes yet will speak for more than two hours. In short, most people are terrible at judging how long it will take them to get through a public speaking event, and to be clear, voir dire is a public speaking event even though there is more interaction in it than the typical speech.
Here are four common ways in which attorneys waste time in voir dire, taking away opportunities to ask questions that reveal vital information about potential jurors.
1. Long introductions. Introductions, which should be short, routinely go 5 to 10 minutes, which is a lot of time if you only have 20 or 30 minutes of voir dire. The goal of voir dire is for the venire to talk more than the attorney so keep the introductions short. For example: “Hi, I’m Tom and I represent the defendant. You’re going to get to know me and my client a lot over the course of trial but this is your time to talk, so I want to get right to it and hear from you.”
2. Explanations about the purpose of voir dire. Most jurors don’t really care that “voir dire” is a Latin term or that it means “to speak the truth.” Venire members do not lie or fail to disclose in voir dire because they do not know Latin, or they do not appreciate the purpose of the process. They lie or fail to disclose because the attorney has not asked the right question or the attorney asked it in a way that makes venire members uncomfortable disclosing an honest answer. Rather than lecture venire members about the importance of the voir dire process, focus on questions that make them feel comfortable providing the information you want to know.
3. Conversation hogs. It is not unusual to have a venire member who talks a lot more than others. There are two common causes. First, some venire members are just conversation hogs and want to talk a lot. Alternatively, some attorneys spend too much time talking to venire members they like, which is an easy trap to fall into. It is natural and common for speakers to gravitate towards audience members who seem the most engaged. In the first instance, attorneys should step in at some point and say something along the lines of, “Juror #14, we’ve talked quite a bit so far and your thoughts are important to us, but I want to make sure I give others an opportunity to speak as well.” In the second instance, the more time an attorney spends talking to “good” jurors that they like, the more time they are spending outing those jurors and helping the other side figure out who they need to strike, all at the expense of learning more about the entire venire.
4. Selling themes. Okay, I’ll regurgitate a little. Selling themes is a waste of voir dire time. There is ZERO evidence in the research that supports a primacy effect in voir dire, which makes sense. Jurors are too overwhelmed in voir dire to realistically be primed. They are more worried about what happens if they get picked and who is going to drop off and pick up their kids. They are worried about how it’s going to impact their work. They are worried about having to reschedule that doctor’s appointment they’ve had on the calendar for three months. The list goes on and on. But even more important, when you sell themes, all you are doing is outing your good jurors. If I’m helping the other side pick the jury, it is incredibly valuable to me when you get your jurors nodding along in agreement with your case themes. In fact, even if there was research supporting a primacy effect in voir dire, it simply wouldn’t matter because I’m going to strike all those jurors who just agreed with you.