Jury Research Institute

Voir Dire

Pretrial Preparation Techniques for an Effective Voir Dire

Assessing the Case

Discerning which type of juror will be most receptive to the arguments and issues in a case requires careful attention to key issues, and at times, the application of fundamental marketing research tools. Before conducting the voir dire, or planning a jury selection strategy, it is important to understand the emotional, psychological, or prejudicial elements of the case, which may draw the attention of jurors. You can accomplish this by observing the reactions and thoughts of non-lawyers in focus groups and mock trials.

Focus Groups. An informal, effective way to obtain such insights is to undertake a focus group. A focus group is a roundtable discussion undertaken with a dozen jury-eligible community residents. Counsel presents a summary of the case and a colleague, familiar with the issues, presents the opposing side. With the assistance of a moderator you are able to listen to the questions and comments from the group. You will be tempted to answer the questions and persuade the group on the merits of your case. Resist the temptation. It is more important that you hear their reactions and their questions. Which issues draw their attention? What assumptions do they make about matters that weren’t presented to them? What analogies do they use in discussing the case? Their comments, questions, and observations can provide valuable insights about what real jurors may think of the issues, and serve as important guides for voir dire and jury selection.

Mock Trials. For more complex cases, consider a more structured investigation. A mock trial is one of the most powerful tools for analyzing your argument strategy and assessing jurors’ likely responses. They provide a wealth of information beyond what a focus group can offer. Mock trials force you to think through the entire case several weeks before trial. Moreover, planning a mock trial demands that you fully evaluate the opposition’s case, because you must present a strong case for the other side if your mock trial is to be meaningful.

The Advantage of Large Panels of Mock Jurors. If you use several panels of mock jurors, you can obtain a sample size large enough to yield meaningful distinctions about juror profiles. For example, in a products liability case, you may be able to learn whether men or women, or people who have some experience with similar products, would be more favorably disposed toward your case. Mock trials call for extensive preparations and careful attention to the recruitment of jurors to accurately reflect the jury pool in the trial jurisdiction. Research at the mock trial level is generally more cost-effective if coordinated by those trained in their design and implementation. The cost for a one-or-two-day long mock trial has become increasingly affordable, even for relatively modest cases.