The Court Technology and Trial Presentation Blawg features articles, reviews and news of interest to lawyers and other legal professionals. This blog is published by Ted Brooks, a Trial Presentation and Legal Technology Consultant, Author and Speaker. Ted's trial experience includes the Los Angeles Dodgers divorce trial, People v. Robert Blake murder trial, and a hundreds of high profile, high value and complex civil matters.

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Sunday, August 26, 2018

Juror Explains Voir Dire Do's and Dont's

During Voir Dire, jurors will be watching you like a hawk. photo © Ted Brooks

If you do jury trials, you're already familiar with the voir dire process and know how important it can be to your case. You can have a jury consultant assist with this process, or you might prefer to handle it on your own, but in either scenario it is the attorney who will be speaking with the jurors. While you might be chomping at the bit to get this trial started, the fact is that it has already begun. Don't ever take voir dire lightly - it is a critical piece in the litigation process. 

I will note here that although many prospective jurors will look for any way to get out of being selected (pre-paid, non-refundable vacations seems to work pretty well), once they've been nailed, they take pride in ownership and will do their best to make sure the right verdict is delivered. That's why our system works, and I am proud to be a part of it.

While I'm not going to offer any thoughts on how you should handle voir dire itself, I will share some other things you may want to consider. Now here are a few more do's and don'ts I've put together, based on my experience in hundreds of jury trials, and more importantly, my own recent experience and observations as a prospective juror. (It was a criminal case and I was dismissed by the Prosecutor. Although I stated in court and truly believe that I could be a fair and impartial juror, I can appreciate the concern of having someone with my experience and background sitting on the jury. I will admit that I had mixed feeling about serving, but would have gladly done so if selected.)

Do Dress Appropriately
Hey counselor, I'm guessing that at 40-50 years old, this must not be your first rodeo, but has anyone ever explained to you how to tie a damn tie? True story: 2 out of the 3 defense attorneys clearly bypassed the mirror when they got dressed. One of them actually had the wrong end of his tie longer than the top part you're supposed to see, so the thin part was around his belt line, the wider part up a few inches higher. It just looked weird. The other, who was tall, had a tie that was just too short (at 6'3" this is a potential problem I also have to watch out for). He could have retied it to make the main part longer so it didn't end about midway on his stomach. I mean seriously, folks. You are professionals -- please act and dress like it.

I think the key takeaway here is the old "first impression" thing, and this is that opportunity. Make sure everything is in place and that you have the look of the professional that you are.

Do Make Eye Contact
If you're speaking to the group, move along from juror to juror with your eyes, and try not to miss anyone. Also, try not to focus excessively on anyone. Everyone wants to feel as though they are a part of the process, and not being ignored. When you are addressing an individual juror, maintain eye contact when speaking, and when listening to their response. It can appear very offensive when counsel is moving on while the juror is still speaking. Oh, and please don't EVER wink.

Do Remember That This Is Not Their Profession
Most everyone in the courtroom besides jurors and the parties are paid to be there - this is your profession - not theirs. You chose to do this, your jurors did not. Most attorneys I've watched in voir dire, Opening Statements and Closing Arguments are very careful to note the fact that their service is appreciated, and how critical it is to our legal system. With that, their effort and time should be respected, and anything you can do to maintain an efficient process will  be appreciated. I will add that in post-verdict jury surveys I've been involved in, jurors have consistently stated their appreciation when we've used technology to present the evidence - especially when opposing did not. They can easily see how effective and efficient it is, compared to just using hard copy documents. 

Don't Ask Creepy Questions
I would suggest working from a scripted list of questions, rather than just "winging it" when speaking with your prospective jurors. I'm sure we can all think of things we've heard or asked that just aren't appropriate to discuss in front of a room full of strangers. I'm not going to offer any examples other than one defense attorney kept stating random hypothetical situations that might happen during trial or deliberations, and then asking everyone to raise their hands and promise they would do nor not do such and such. Seriously? I can't speak for anyone else, but that made me feel very uncomfortable. I am there, the entire pool were all sworn in since it was a criminal matter, and that should do it. Even if I do raise my hand to "promise," I do not see that as any sort of legitimate oath, and I'm not agreeing to be "on your side." I suspect others felt the same. If anyone had not "agreed," they would certainly risk being called out and asked why. So don't bother.

Don't Enter My Personal Space
Feel free to use the lectern or podium, and even to walk around a bit -- but please stay out of my face. Don't assume someone likes you just because they smile at you. They may or may not want to like you, but if you invade their space, they won't appreciate it. I will say that it's really all about the evidence, but that an offensive attorney certainly won't help their cause, and might even make a juror less receptive to your message.

Don't Waste My Time With Repetitive Questions
One thing I've seen far too often is asking every juror the same questions. Mix it up a bit, and try doing a group poll (ask to raise hands) for the "easy" ones, then focusing on the outliers. The Court will often instruct counsel to move it along if they see too much of this anyway, but don't think the jurors are not smart enough to notice.

Extra Credit:
What is the correct pronunciation of voir dire? Well, they are French words, literally meaning "To speak the truth," which could be considered reasonably influential. So maybe something along the lines of vwah (or vwar) deer. On the other hand, if we are to phonetically "sound it out" in plain English, we might end up with something close to vore dyer. Believe me - after many years and many trials, I have heard both of these and everything else in between. However, I have also learned the correct way to pronounce it, regardless of your geographical location -- although I can't recall exactly where I heard this explained. In any event, the correct way to pronounce voir dire in any courtroom anywhere, is to pronounce it the same way as the judge.

Summer is winding down, and I just felt like sharing a totally irrelevant and gratuitous photo. photo © Ted Brooks