VOIR DIRE: HOW DO WE DO WHAT WE DO?
What is “voir dire”?
I never discuss the etymology of the phrase “voir dire”– which in Texas we happily mispronounce “voir” (sounds like “four”) and “dire (sounds like “tire”) – with potential jurors because, well, it’s just not interesting to anyone but me. That said, “voir dire” comes from Anglo-Norman French, which was much different than the modern French spoken today. In that archaic tongue, “voir dire” literally means “to speak the truth.” Most people think of voir dire as the jury “selection process,” but really more than anything, voir dire is a process of “deselection.” My task as a lawyer is to identify the folks who are most likely to see the case the way the other side has framed the issues. These are the people I want to eliminate as jurors either by having them confess bias that disqualifies them from service so they can be struck “for cause” or to note the individuals we want to use our peremptory challenges to strike. We’re trying to find potential jurors who like us as lawyers and who are most likely to trust our narrative of events and view of the issues.
I have picked/deselected juries in personal injury, insurance, and commercial cases going back to 1992 when I first started in private practice. I came into private practice after a federal judicial clerkship with Judge Edward Prado, who was then a district judge in San Antonio. Judge Prado tried a ton of criminal cases and a good number of civil cases as well. I saw a lot of cases tried in my two years with the Court and got what I believed was a good sense of what worked in picking a jury and what didn’t.
My sense of things at the time, which has been borne out by a slew of jury trials since, is that a conversational style and looping questions between panel members is what works best. After our first trial together, one of our associates remarked “your style is pretty fluid, pretty seamless. How do you do it?” “Well,” I responded, “remember when you used to go to bars and clubs when you were young and carefree? You knew who was interested in you, who was bored by you . . . basically who liked you. I want jurors who like me and I usually can tell who that is.” They won’t listen to you if they don’t like you was the important point.
How is it done?
It’s not rocket science, but there should be a method to your madness. Very rarely do Texas state judges give more than 45 minutes per side for voir dire and in federal court you may not be given the opportunity to ask any questions at all as district judges often conduct jury selection themselves. Successful voir dire clearly starts and finishes with quality interpersonal skills, and as one commentator has noted turns on “your ability to stand in front of a group of people and make them like you, trust you, and share personal information with you.”
I usually work from an outline that I’ve used in most of my cases on the defense side. Typically, in voir dire you’re not permitted to discuss the actual facts of your case and get commitments from the venire panel about those facts. I do what I can to microencapsulate the case for the jury. Having framed the facts very generally and I’ll ask a throw-away question like “Does everyone understand that is Defendant’s view of this case?” That question allows me to introduce my view of the facts without running afoul – or particularly far afield – of trial court instructions not to discuss the facts. Usually the Court will let you do this if it can be done in less than a minute. “Microencapsulating” the facts is not likely to draw an objection in any event. (In my view, objecting during voir dire shows weakness, indicates that you are concerned about what the other lawyer is saying.) I tend to ignore how the other side characterizes the case or frames the issues. Our case has to stand or fall on its own merits and the other side’s specious phraseology rarely enters the calculus for me.
When our cases are on the defense side, I always emphasize that plaintiffs get to go first because they have the “burden of proof” and must prove their cases by a “preponderance of the evidence.” In talking about the preponderance of the evidence. I like to use the tried and true visual image of the blind goddess of liberty holding the scales of justice. In demonstrating how the burden of proof and scales analogy works, I give the jury a visual cue and drop one arm to 5:00 o’clock and while raising the other arm to 10:00 o’clock to emphasize how much the scales have to move for the plaintiff to prove her facts are “more likely than not.”
Visual cues are useful and facilitate conversations with panel members, whether you’re trying to establish bias or to rehabilitate a juror you like. I like to tell the panel that if they think of the trial as a race, they need to have the plaintiff and defendant starting out together at the starting line, that’s only fair, you can’t have a race with one person starting out ahead of the other. That visual cue leads to a productive line of questioning about whether anyone, for whatever reason, has the plaintiff “starting out ahead” of the defendant.
Another useful area of inquiry that gets the panel talking is the topic of “mental anguish” damages. I like this topic area as it quickly gives you a good idea about who in the panel may be defense oriented. I will usually say something indicating that not everyone has the same feeling about mental anguish damages. Some people do not believe that mental anguish damages should be awarded in lawsuits – other folks disagree. I then ask if there anyone here has strong feelings about mental anguish damages one way or the other. There are usually a number of panel members who want to discuss the issue. I ask them why they feel this way, how long they’ve felt this way, and then – despite any personal views they may have – whether they would follow the court’s legal instructions regarding mental anguish damages to the letter.
It is the very rare individual who is willing to say that she cannot and will not follow the court’s legal instructions in the case. In almost every case, jurors agree that they will base their decision on the evidence and the court’s instructions alone. That interaction can be helpful in setting and managing expectations and controlling difficult panel members. Along the same lines, I always ask if there is anyone in the panel who believes there are too many lawsuits filed in Texas. I follow that up with why the panel member thinks that, whether it’s based on what they have read or heard in the news, and whether they will be able to judge the case at hand based on the merits, with the same litany and cautionary instructions about deciding the case based on the court’s instructions and the evidence.
For obvious reasons, in cases involving personal injuries and/or medical damages, I always explore whether any of the venire panel has medical training. It’s been my experience in insurance cases that doctors and nurses usually dislike insurance companies and are not shy about telling you why. A little of that goes a long way, but you need to know what medical training any panel members have or any experience with medical services or record keeping. I also explore whether panel members have any medical problems similar to what the plaintiff has experienced – back, neck, whatever – how they treated and whether the condition resolved. You always get useful information with this line of questioning.
Similarly, in property-loss cases, I ask about prior insurance claims, how the claim was handled, whether that experience was good or bad, and whether it colors how they view this case and then again, whether they have the plaintiff ahead of the defendant in light of their experience. It’s remarkable how often potential jurors will confess to “bias” after talking about a prior claim and you need to know that.
In the same vein, I always ask about prior lawsuits, whether anyone panel member or immediate family or close personal friend been involved in a lawsuit or claim against another person, as either the party bringing or defending the claim. I usually limit the question to civil cases and emphasize that I’m not interested in hearing about divorce cases or anything relating to child custody issues (unless a given case relates to those issues). I want to know what sort of suits people have had and when, whether they were a plaintiff or defendant, how the case was resolved and whether they were satisfied with the outcome and why.
These general topic areas give me a lot to discuss with the panel in the short time we usually have for voir dire. I will weave information from juror information cards into my voir dire where relevant and/or simply for conversational purposes. I try to talk to as many potential jurors in the first three rows as possible even if it’s just an observation about something on their juror information card. For me it’s always a question of whether the jury likes you as a lawyer or not. They may not like your client, but you want them to like you, to know you’re honest and convivial and they should open up and talk to you. Given the option, the panel would rather be talked at than talk and it’s our job to get them talking. My two cents.