The day voir dire didn't start 'til 4:00: and an updated voir dire do's an don'ts list

Photo:  Cristina and I at Southbeach in Miami during a break at the AAJ Midwinter Convention last month.  Note the shadow from the selfie stick.

Trial day 1: 

Instead of doing her usual acrobatic routine, Nala is curled up around my feet. On the little rug in front of the sink.   I glance up at the little crystal clock on the shelf. It says 6:10 which means it is 7:10 since the clocks sprang forward Sunday. Haven’t changed it yet. The mental math keeps me sharp. Or so I tell myself.

On goes the regulation black.   Black jacket. Black tights. Black boots. Black skirt with little ruffles. The only color is a non-color on the shirt. Flesh toned I guess, in a shade several tones lighter than I. With rouching and gathering to soften the severity. Of my black hair.

I leave my rings on the little metal hand stand next to the orchid on the counter.   There are only two of them. One is a pretty piece of jade from an antique shop on Royale Street in New Orleans. The other is my best friend pinky ring. Shellie and I have matching ones. We do pinkie finger shakes wearing those rings. I always wear them. But not for this trial. Because my right hand is covered with a big band aid. The story involves E.J. my six year old nephew and Nala, but that can be told another day.

After dropping Nala off at doggie day care, get on the freeway. Head to Everett. This will take 45 minutes. Plenty of time to practice opening. Or conceptualize voir dire. Maybe review testimony of the first witness. After all, Steve Hay asked me to try this UIM case not quite a month ago.

It is raining. Gray. Too quiet in the car to listen to these thoughts. So turn on The Appeal by John Grisham. The narrator is real good. Am transported to Mississippi.

Park. Ride up the elevator. Walk a few steps across the courtyard to the entrance. There are no security lines around the ugly courthouse. Sorry if you’re from Everett. But that courthouse is about the ugliest thing have ever seen.

Make it to presiding and the court has just read our name. Don’t care, because Steve (Hay) is covering this.  He waves at me. We get assigned out within five minutes.   I get up before I even sit down and we head up to the fifth floor dept. 12.

Now there is a reason why I’ve just spent so long telling you about trial day 1. When we aren’t even in the courtroom yet. You’ll see soon.

We get there and our judge is Marybeth Dingledy. (pronounced Deengel ‘ die) What a fantastic name.   She is very direct, prompt, makes sound rulings on the motions in limine, has a twinkle in her eye. That’s all good.

So what is the problem.

Well, the Allstate attorney Jodi Held, says that she won’t agree to simply calling a panel of 29 prospective jurors. She’s worried there could be bias against Allstate, so she wants 35. Problem is there are only 29. We need to wait to see if any jurors are going to be released from the other voir dire panels around the ugly courthouse.

So we wait.

And wait.

Each lunch.

Come back and wait.

And wait.

Until finally at 2:30 pm Jodi cries uncle and agrees to go with whatever number there is.

Which turns out to be 31.

And then we wait for them to be brought up.

And for the judge to swear them in and do preliminary instruction and voir dire.

Which means that by the time I start voir dire – it is ten minutes until 4:00 p.m.

Can you imagine how upset those jurors must be. I see a lot of lips turned down Mr. and Ms. grumpy pants. And don’t blame that all. 29 of 31 have been sitting in the jury room all day long. Waiting on us.

Oh, this is going to not go well at all.

I put on a smile and start in.

Have you ever been to a comedy show where the audience doesn’t laugh. Or at a music concert where instead of people loudly clapping for an encore, they just leave. Or at a legal education seminar where people are reading the news on their computers and texting on their phones.

Well, that’s what it feels like when you start voir dire at 4:00 in the afternoon of a jury that’s been waiting for six and a half hours to start.

In the words of Winston Churchill which I keep quoting to my children. “Never. Never. Never give up.” So smile. Push forward. And complete the first 20 minute round of voir dire. By the end these folks are loosening up. Talking and shaking their heads yes and no. Sometimes smiling. They are getting into it.

Then Jody stands up.   And starts to give a closing argument in the guise of voir dire. Which is not really even in a guise at all. She asks a series of questions which requires everyone to nod yes. She doesn’t have them say or explain anything. She just wants them to agree with her.   Does this ever really work. This technique of pseudo-brainwashing. Well, maybe. But not today.

Do you agree Allstate should investigate and look at all the facts and circumstances before they pay a claim. Yes they nod.

They may not be getting anything out of this. But she is. Her voice is getting stronger. She’s becoming impassioned. Says: Allstate has a right to look into the…

And at that point, I interrupt and lob an objection. Sweetly. Which the court overrules. Graciously.

Rick Friedman would be sighing and telling me Karen Karen Karen. What have I told you about objecting so much.

Am unrepentant. It needed to be done.

Jody is thrown off. Actually she probably comes out of her trance and realizes, the jury is just about totally asleep.   It is now 4:20. She’s gone 10 minutes. She calls a sidebar and offers to end her round of voir dire early.   Says the jury is flat. Well, no duh they’re flat. I’m about asleep myself.

So we end the day

My Updated Voir Dire List

• Make sure you know the judge’s special protocol
• Stand and face the panel
• Don’t try to ingratiate yourself with the panel
• Own the courtroom floor, don’t stand still, don’t pace frantically either
• Don’t clasp your hands behind your back or in front and keep them out of your pockets
• Make sure every juror in the room can hear and see you
• Maintain proper interpersonal distance, don’t stand too far away, don’t get too close
• Don’t think of it as rocket science, think of it as chit chat…organized, focused chit chat
• Pay attention to body language – yours and theirs
• Don’t read questions
• Create a list of topics but don't try to follow an exact outline
• Don't try to control the panel
• Give to get
• Don’t write down answers (there’s not enough time)
• Have a staff member take notes for you if needed – don’t ask your client to help
• Make eye contact with everyone, somehow, and don’t look like an FBI agent while you’re doing so
• Invite the jurors to join the group discussion
• Be animated, friendly, engaging, interested, open, genuine
• If you feel phony guess what…
• Listen to the person who is speaking
• Listen to their body language
• Listen to the aura of the entire panel
• Listen to everything you don’t want to hear
• Listen
• Don’t spend too much time talking to a few jurors
• If any of the jurors are monopolizing the conversation feel free to gently tell them you would like to give others a chance to speak
• Make sure everyone says something
• Stop talking so much – the jurors are the ones we’re interested in hearing from
• Show that you care
• Smile with genuine interest and friendliness
• Stop frowning
• Don’t try to ingratiate yourselfGive tidbits of information about the case, but don’t make an opening statement – the jurors will see right through you and the judge won’t be too happy either
• Don’t be judgmental
• Thank jurors when they dig deep to give hard answers
• Make the court room feel like a safe place for the jurors to speak
• Don’t think you can build credibility by saying the right things
• The jurors won’t be focused on figuring out what you think but in forming impressions on what you do
• Proactively transition between jurors instead of reactively jumping around
• Be polite and respectful to everyone always
• Don’t roll your eyes and huff and moan when it is the defense lawyers turn
• What you do when the defense lawyer is having a turn, is just as important as what happens when you are having yours
• Don’t talk with your client and act like they are having a roll in choosing the jury
• Don’t call a juror by their first name, instead use Mr, Ms, or Juror # blank
• Relax your face muscles and let them speak too
• If the jurors are answering “yes” and “no” then wake up and smell the coffee – you’re doing it wrong
• Don’t point at them
• Keep track of the responses somehow and highlight problem or question mark jurors after each round
• Don’t look scared even if you are, but it’s fine to admit to being nervous
• Embrace the cliché - honey works better than vinegar