3. Interacting With Potential Jurors
Since the jurors are forming impressions of you and your case, remember, first impressions are lasting. They also affect what happens to incoming information. People accept subsequent information from a source that they view as credible, and reject information from discredited speakers. A positive first impression will give you a halo of credibility and open the door for the prospective jurors to believe you and your witnesses. A negative first impression will do exactly the opposite.
What Prospective Jurors Look For. Jurors will be evaluating your credibility, sincerity, and trustworthiness from the very beginning. They will also be looking for cues about your confidence in the case. Don’t be overly dramatic and don’t go out of character. Be real, be human. Demonstrate your convictions.
Set the Right Tone. The tone you set is important. You want to create a relaxed informal atmosphere in which people feel comfortable speaking up. The formality of the courtroom atmosphere does not invite open, free exchanges. You will have to work at establishing rapport.
Self-Disclosure. Social psychologists regard voir dire as a self-disclosure interview during which an interviewer is seeking information from interviewees about their history, attitudes, and beliefs. Research has consistently demonstrated that self-disclosure on the part of the interviewer leads to greater self-disclosure from the interviewee. People do not readily reveal their thoughts about sensitive topics to strangers. Instead, they reveal themselves to those who have disclosed to them; they "reciprocate," hence the phenomenon known as the "reciprocity effect." People seem to feel compelled to respond in kind to another’s self-disclosure. This principle is often neglected during voir dire.
Overcoming Resistance. Many lawyers offer a cursory introduction of themselves and their clients, begin asking prospective jurors very personal questions, and are then frequently puzzled and frustrated by the "resistance" they meet, or complain that jurors never tell the truth during voir dire. The problem, in all likelihood, is a lack of reciprocity. They are asking for too much information while offering too little of it themselves.
Breaking the Ice. Many attorneys very effectively break the ice by acknowledging to jurors that facing a group of strangers can be a little unsettling during the first few minutes. They tell the jury that they can understand how it feels to be in the jury box facing a courtroom full of strangers. Such comments "model" self-disclosure to the prospective jurors. One of the ways we learn to behave appropriately in a new situation is to observe other high-status individuals. Handled with poise, such "admissions" do not diminish the attorney’s credibility, but instead enhance his or her effectiveness in jurors’ minds.
Establishing Empathy. You may want to tell jurors that you understand how difficult it is for them in the jury box. If you’ve been there yourself, you might consider telling them so. Seek to establish a common bond with the jurors. Suggest that by working together perhaps you might be able to help each other feel more at ease and get through the process relatively quickly.
Let Them Know What Your Role Is. Let jurors know that is it difficult to ask some questions, but that you know from past experience that it is helpful to everyone involved if you ask them. Don’t just tell them that you have to ask certain questions for your client’s sake. Jurors know you’re interested in your client. Let the jurors know that you are interested in them. Point out that questioning generally benefits jurors as well. Explain that many jurors in other trials were grateful they had been asked about issues and evidence that would be introduced in the trial. It allowed them to evaluate whether they could be objective jurors for a particular case, and not find out too late that the case presented many personal, painful connections that they could not remove from their thoughts.
"Self-Induced Challenges." You may also want to model a few so-called self-induced challenges. Think about your own background. What type of case would be difficult for you to sit on as a juror? Think of one, and then describe it for the jury. For example, if the situation fit, you might explain to jurors that as a parent of a six-year-old boy who had been injured in an automobile accident involving a drunk driver, it might be rather difficult for you to be an open-minded juror in a driving-while-intoxicated case. It simply might be too hard for you to pay attention to the evidence, which would be a disservice to both sides. Explain that in such a case, you feel you would need to be excused from serving on such a jury. Then explain to the panel that you want to give them the opportunity to tell you about the things they feel might interfere with their ability to hear the case. You are essentially inviting jurors to "self-challenge," thereby removing some jurors you might otherwise have to eliminate through a risky challenge for cause. Challenging a sympathetic prospective juror has its risks.
Strive for Openness. Create an atmosphere of openness rather than interrogation. Always encourage the potential juror to tell you how he or she feels, rather than telling "us" or telling "the court." It is easier to reveal feelings to another person than to broadcast them to strangers in a courtroom.
Listening and Reinforcement. One common complaint among former jurors is that they felt the lawyers were more interested in recording their answers than in listening to them. By demonstrating your interest in the replies of jurors, you can show that you value what they say. Have a master seating chart for recording jurors’ names and a checklist of voir dire topics that you plan to cover with each juror. You must be able to talk with jurors and not merely direct questions at them.
Reinforcing Helpful Speakers. Reinforce those jurors who provide descriptive answers. By thanking jurors who speak up, you invoke an age-old principle of psychology; a behavior that is reinforced will occur more often. Not only do you encourage the individual to whom you are speaking to talk more; other jurors looking for cues on how to behave appropriately learn how to win praise. Potential jurors value praise from a high-status individual, and the praise reinforces the praised behavior. "I admire your honesty" and "I appreciate your willingness to be candid with me," are potent reinforcing messages.