Voir dire mistakes

The jurors are the ones who are supposed to “speak the truth” in voir dire.  This is not a time for attorneys to dazzle the jury with brilliant manipulative dialogue.

Of what use is eloquence?  He who engages in fluency of words to control men often finds himself hated by them - Confucius

Voir dire is interactive.  It is the “hello, nice to meet you, are you the right person to sit in judgment” part of the case.   Yet, for many attorneys voir dire is torture.  We need to think like a lawyer but communicate like a good neighbor to a large group of people we know almost nothing about.  The approach needed is wholly different from any other type of legal proceeding.  Here are some of the bad habits attorneys have when doing voir dire:

First, we talk too much. “Thank you for coming…we know how little you get paid for your service… it is your civic duty… isn’t the weather great…”  These statements waste time.  They are patronizing.  We look like we are procrastinating.  Add to this our love of speeches.  Drawn out stories about our children, friends or great aunt Sally.  Lectures about the Constitution or some other artificial construct through which we hope to send a subliminal message.  The more we talk, the more we don’t hear.  The less we hear, the less we learn about the jurors.

Second, we don’t know how to act.   We are in suits.  They are dressed casually.  We stand.  They sit.  The lawyer in us wants to grill each juror.  To flip them inside out, to make sure they aren’t biased and will be fair.  They know we want to do this to them so they erect a wall.  They find power in their numbers.  The great divide must be breached and it is up to us.  We have to go over to the other side.  We have to do it extremely quickly. People form impressions within one-tenth of a second. We need to be every day people kind of lawyers.  This means that we have to lighten up.  Instead of scowling we need to smile.  Instead of trying to impress everyone with our vast knowledge, we need to show humility.  Our language needs to be from the current decade.  We need to be real.  And we need to focus all of our energy on connecting.

Third, we are hoarders.  We love data, details and, outlines.  We collect, organize, analyze and scrutinize every single little bit of information we can find.  Since time is not on our side, the more junk we collect, the greater the likelihood that we will never be able to see the jurors clearly.   “What bumper sticker is on your car…what television shows do you watch… …what magazines do you read…”   These questions are generally a waste of time.  Quality not quantity is absolutely the best policy in voir dire.

Fourth, we are scared.  We tip toe around the edges of a delicate subject.  We don’t want to contaminate the jury by raising a negative issue.   But this wholly defeats the purpose of voir dire.   If there are concerns, voice them.  If there are worries, share them.   Better to find out who cannot be fair now, rather than later

Fifth, we want to be right.  We are impassioned advocates taking up the gauntlet on behalf of our deserving clients.  We are the way the truth and the light.  And when a juror doesn’t agree with us, that does not sit well.  We may begin to argue with them.  We may exhibit negative even aggressive body language.  We may want to educate them.  Take the McDonalds case that almost always comes up during a tort trial.  “Stella was not driving when she pulled the lid off the coffee...Her grandson was driving and had pulled over so she could add cream and sugar...  Liquids at 180-190 degrees can cause third degree burns in two to seven seconds...Those types of burns require skin grafting, debridement and whirlpool treatments… She had $20,000 in medical bills…California has punitive damages and we don’t.”   What do we gain from being “right” in voir dire – absolutely nothing.   Once you one-up a juror, watch the body language.  The crossed arms across torsos.  The recoil as you approach.  The walls close.  And you are right back where you started, on the other side of a big divide.

Voir dire works best when the attorney and the jury are in the mix together.  See, the blog post "tips for Attorneys: Voir Dire for more thoughts on how to do this right.

[1] Janine Willis and Alexander Todorov, First Impressions – Making up your mind after a 100-Ms exposure to a face.  Psychological Science.  Princeton University (2006).