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Knowing Your Audience in Voire Dire II

The voire dire process will be your first chance to make a good impression upon your potential jurors. A couple of points to keep in mind here. First of all, and above all else, remember that you are a servant of your jurors. Your job through this entire trial process is simply to present information to the decision makers, the jurors. Thus keep this perspective in mind from the beginning to end of trial. Thus always speak with deference to your jurors and give them the respect they deserve, they will appreciate you and your client for it. On this point, try to become what David Ball calls the "Host in Chief" for your jurors. At the beginning of the voire dire process introduce the jurors to all members of the court. This includes opposing counsel, the court clerk, the bailiff, the judge, and any other courtroom staff. Accommodate the jurors in any way you can throughout the trial process. Of course you do need to avoid the appearance of overreaching. Never speak to the jurors outside of the courtroom during the trial process as any ex parte communication with your jurors prior to verdict is prohibited.

During the voire dire process, in addition to your primary focus of deselecting jurors, focus on building rapport with your jurors. Some jurors will be more receptive to communication from you, others will be less receptive. Make it a point to develop rapport with every single juror on the panel. If you come across a juror who is not receptive to you then continue on in your quest of developing rapport with that juror. This means that you need to ask more questions of that juror until you can break the ice. If you find that you can do nothing to build rapport with that juror then keep an eye on how well your opponent does at rapport building with that same juror. If your opponent manages to build rapport with that same juror where you could not then you may want to think about striking this juror.

During the voire dire process you need to have an assistant keeping detailed notes. Your assistant should know exactly what to look for in this process. The smart thing to do is to go over exactly what you are looking for with your assistant prior to voire dire. Spend a lot of time preparing for your voire dire. In this way your assistant can be receptive to any information which your jurors present, whether that be answers to your questions, leadership characteristics, rapport with you, or body language. This will free you up, as questioning counsel, to focus on good communication with your jurors. If you have the budget for it then you should also think about hiring a jury consultant. A good consultant can be well worth the money as he or she teaches you what to look for amongst your jurors in your specific case.

As I mentioned earlier, you need to be on the lookout for leaders on the jury panel. If you think you have found a leader then you need to be thinking about deselecting him or her unless you are confident that this leader will be behind you in deliberations. A leader can easily influence several or more jurors and potentially every juror in deliberations. It is far better to deselect a leader who is moderately bad for you than to deselect a non-leader who is quite harmful to you. The leader is too powerful to overlook. Leaders are also difficult to persuade. Thus you need to be on the lookout for leaders. You need to know how to identify leaders and thus the common characteristics to keep a lookout for.

Although demographics are typically not a good mechanism for making decisions in voire dire there are some exceptions. One of the biggest exceptions is that of occupation. Occupation can tell you a lot about whether this potential juror is a leader or not. A leader in the workforce will be a leader in deliberations. Thus find out if your juror is a boss. Find out if your leader is in management. Find out how many people this juror oversees. Then inquire about this juror's job responsibilities. Find out how much of the individual's job is dedicated to overseeing and coordinating others. Natural leaders will naturally gravitate towards jobs which require leadership skills. Thus a leader in the workforce will likely be a leader in deliberations.

There are other clues to look for as well. Look for jurors who are naturally charismatic. Look for those jurors who are articulate and comfortable speaking. You can even directly ask your jurors about any situations in which they are regarded as leaders. Follow this up by asking them about times in which they have been regarded as followers. Another indicator to keep an eye out for is that of individuals who have some type of knowledge or experience which is relevant to your case. For instance, if you are doing a medical malpractice case, and one of the prospective jurors is a doctor then you can imagine that the jurors will look to him or her for guidance during deliberations. The individual's expertise in the subject matter of your trial will create a leader within him or her even if the person is not a natural leader. So you need to be on the lookout for people who have these relevant life experiences. Also be on the lookout for individuals who lead through actions during the pretrial process. These individuals will do such things as hold the door open for the others, account for the other jurors' attendance, speak on behalf of the jurors, and the like.

Although you are observing all of these leadership characteristics in the voire dire process it is equally important to keep an eye out for these characteristics during the trial process. During trial it is equally important to know what leaders are actually on your jury panel. The reason for this is that you need to focus on effectively communicating to leaders in trial. Make sure the leaders are paying attention when you deliver your most effective evidence in trial. Make eye contact with these leaders frequently. Build rapport with these leaders. You also need to coach your witnesses a bit regarding who these leaders are. Make sure your key witnesses know to make good eye contact with these leaders as they deliver critical testimony to the jury. These leaders will make a significant impact to your benefit or detriment in deliberations so work hard to persuade these folks.

The voire dire process is critical in that it allows you to intelligently deselect unfavorable jurors. This is not a process for finding jurors who can "be fair". You, as counsel, should be smart enough to know this. May of the jurors will also likely know that this is not truly counsel's intention. So don't tell your jurors that the purpose of jury selection is so that a fair and impartial jury can be seated. The judge can say this if he so choses but you don't need to as you don't want the smarter jurors seeing you as insincere. These jurors know this is not your true intention. Your intention quite simply to remove jurors whose characteristics and attitudes are not consistent with the goals of your case.

Beyond the importance of voire dire as a deselection process, voire dire is also valuable in that it allows you to get to know your audience. David Ball, who has a background in theater, reminds us that all great playwrights and screenwriters tailor their presentation and script to their audience. Thus you should do the same. We need to get to know our audience so that we know how to best communicate with them. You would never converse with two different people in the same way in everyday life so don't assume you should do so in trial. Get to know your jurors so that you can tailor your communication to them. After the voire dire process you can review the notes which your assistant took during the voire dire process. Think about who each of your jurors are as you review these notes. Think about their professions, their values, and their attitudes. Then think about what evidence might be most persuasive to these individuals. You may be able to loop in examples and facts which are consistent and personal to some of your jurors' experiences. This is a strong rapport building technique.

The information I wrote above comes primarily from jury and trial consultant David Ball. If you have an opportunity to go to any of his multiday seminars I highly recommend them. Mr. Ball is brilliant. He has also written numerous books which are fascinating and exceptionally educational for trial lawyers. For a thorough understanding of this subject matter pick up one of his publications or attend one of his seminars.

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