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Knowing Your Audience in Voire dire III

As a general proposition, in trial, it is always a good idea to expose your weaknesses before your opponent has the opportunity to do so. Thus if you are reasonably certain that your adversary is aware of your case's weaknesses then you need to expose these weaknesses to the jurors before your adversary has the opportunity to really hurt you. I have heard this idea referred to as "drawing the sting". You essentially remove the sting or the impact from the adversaries' arsenal. Rest assured, that your adversary will still make a big deal about the issue in trial but it is best for you to be the one to present the weakness to the jurors first as opposed to your opponent. If this information comes from your opponent first then the jurors will assume that either you were trying to hide this information from them or that you were otherwise unaware of the weaknesses of your own case. It is better to be the one who comes out and admits your own weakness to the jurors so as to establish trust and credibility with your jurors early on. Additionally, when you expose your own weaknesses to the jurors you essentially tell the jurors that you knew your case's weaknesses prior to trial but you still took your case to trial because you have confidence in your case.

The question then becomes, what is the opportune time in trial to present your case's weaknesses to the jurors. We know that during the voire dire process jurors are just getting settled in. They are still nervous. They are still concerned with things like how this jury process will interfere with their daily lives. They are thinking about getting to know the other jurors and things like this. Essentially, the jurors are not really focused on your case at this point in the trial process. They aren't personally involved with the case as they will be as the trial progresses. Thus, this is an opportune time to present your unfavorable facts to the jurors. You get the benefit of diluting the harmful impact of these facts given the fact that the jurors are less than completely involved in the case at this point in the trial process. At the same tijme this allows you to steel away the gravity of the impact that your adversary would otherwise have if he or she is allowed to present these facts in the most devastating fashion possible to the jurors.

The other benefit of introducing your case's weaknesses in voire dire is that you can introduce the information with the specific purpose of finding out juror attitudes regarding these factual weaknesses. After all, your primary goal in voire dire is to determine juror attitudes towards important issues in your case so that you can deselect jurors who have less than favorable attitudes towards the facts of your case. Thus, simply ask the jurors how they feel about your weak issues. You don't need to say explicitly that the issue you speak of is an issue of your client's in this case. It will be sufficient that you just question the jurors about the issue. The jurors will pick up on this on their own. This will tell you what jurors have unfavorable attitudes towards your case weaknesses and which ones do not. At the same time you are subtly informing jurors of your case weaknesses, drawing the sting.

When you conduct voire dire you need to be encouraging jurors to speak freely. The jurors will initially be apprehensive to give you an answer which they think you may not like. When you get the first answer which is bad for your case you need to refrain from showing any type of disdain. You need to be encouraging jurors to give you these bad answers. After all, this is exactly what you are looking for throughout the voire dire process. You are searching for jurors with antagonistic opinions and beliefs. So when you get an unfavorable answer make sure the juror continues on in telling you more and more about why the juror feels as he or she does. Be sure to pause after a juror gives you an answer. Give the juror time to finish up his or her train of thought after the juror answers. The pause, because it is slightly uncomfortable for the juror, will often times prompt the juror to say even more on the subject. Often it is this one last thing which is a true gem for you in the voire dire process. After you exhaust this juror on the subject then you can leapfrog from this juror's answer to any other juror who may have the same or a different opinion on the subject. In this way you can get your jurors talking. This technique of funneling out the full and complete answer does a couple of things for you simultaneously. First of all, it gives you a comprehensive answer from which to consider making a peremptory strike. Moreover, if the answer is also potentially sufficient for a cause challenge then, by locking the juror firmly into a position which he can no longer retreat from the judge or opposing counsel will be unable to rehabilitate him or her.

When you ask questions of the jurors, be careful not to ask any questions which could result in embarrassment to the jurors. The last thing you want to do is to accidently insult a juror in front of the other jurors. Thus frame your questions in a way that gives wide latitude for the juror in answering your question. Some jurors will be more apt to speak about personal issues than other jurors will be. Don't pry into juror's personal lives. Ask general questions which allow the jurors to get personal if the juror wishes but at the same time allow the jurors to give more amorphous answers if they so please. On this note of not offending jurors be extra polite when you excuse any juror. Make strong eye contact with the juror you are excusing and then thank him or her for their time and honesty with you. Be sincere always, as the other jurors are watching you.

David Ball proposes that when questioning jurors you should jump around from juror to juror non-sequentially. The rationale for this is that by doing voire dire in this unpredictable way you don't allow the jurors time to formulate answers. Rather by catching the jurors off guard you will receive more spontaneous answers from them. This is smart. My only personal hesitation here is that you will need to pay special attention to what you have already asked each juror if you do this. You don't want to make the mistake of asking one juror the same question multiple times by accident because you forgot you have already asked that same question. If you do this, it may appear that you weren't really listening to this juror the first time he or she answered your question. Thus, if you are going to ask questions using this non-sequential method make sure that you keep good notes or have an assistant helping you with the process. David Ball makes another excellent point that if you do ask a general question and you get a few hands in response that you be sure to write down the names of all the hands that went up prior to your asking any of these jurors to answer you. By doing this, you can question each one of the jurors who raised their hand without missing any of them. This is important to you as you don't want to miss any responsive answers. It is also of equal importance in that you don't want a juror feeling like you excluded him or her because you never came back around and asked them for their answer.

That being said, don't rely too much on the group questioning tactic. You want to get the jurors talking and thus group questioning can be a good way to open up the jurors initially but it is a weak tactic beyond that. The weakness in group questioning stems from the fact that only the most vocal volunteers will speak up. You will not get responses from the remainder of the jurors. Additionally, jurors won't answer the hard questions voluntarily. Thus you can begin with group questioning but after you get the jurors speaking you need to begin calling jurors by name and asking questions of them individually. In this way you get sufficient information from each and every juror. Leave no stone unturned in the voire dire process.

If, during the voire dire process, you find that you don't like a certain juror. Not necessarily because of his or her answer to any question but rather just because he or she rubs you the wrong way then it is likely the case that this same juror has the same feelings toward you. All other things being equal you should probably error on the side of excusing this juror if possible.

The information in this short blog/article came to me from trial consultant and jury consultant David Ball. He is a modern day guru of trial advocacy. If you have the opportunity please attend his seminars. If you can't attend his seminars then you need to read his books which are also phenomenal. Damages and/or Theater Tips and Strategies for Jury Trials are both excellent publications which will give you a much more thorough understanding of this material.

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