2. Spotlight on Voir Dire - Six More Tips on Voir Dire for Defense Counsel (4-6)
When possible, respond to jurors' need for information.
In order to be persuasive, a speaker must be viewed as trustworthy, competent and likable. You have a change to begin fostering these perceptions during voir dire. Jurors are nervous, confused and often wondering: 'How does all this work?' 'What does burden of proof mean, anyway?' 'How do I know how to decide who should win?' Help jurors understand their task. If you reduce their confusion, they can attend to you more closely and they will begin to see you as a leader and a teacher. You may have an opportunity to explain, ''In a civil trial such as this, you will hear the evidence, then the Judge will give you instructions regarding the definition of negligence. You will then examine the evidence and decide if anyone, including the plaintiff, was negligent. The law is your set of decision rules. You will decide whether the facts fall under those definitions. Does that sound like a job you're comfortable carrying out?''
It is important to obtain commitments for jurors to follow basic tenants.
Ask jurors, ''Will you, throughout the entire proceeding, wait (hold in abeyance, suspend a decision, refrain from committing to a position) until you hear both sides of the case before making a decision?''
''Will you be vigilant in following the Judge's instructions about not allowing passion or sympathy to sway your verdict? If you find yourself or others sugesting, 'gee, the poor plaintiff, we should somehow find the defendant responsible so the plaintiff can get the financial help he needs,' will you call attention to such a statement, and remind yourself and others about your duty as jurors?''
''Will you voice your opinion, even if you are in disagreement with all of the others?'' (Diversity of opinion generally works for the defense.)
Know, in advance, what you need to know about jurors. What you need to know from jurors certainly varies from case to case. However, in general, at the end of the voir dire, you want to be able to look at a juror and answer the following questions:
A) Where does this person fall along a leadership/influence continuum?
Is this person a persuader,
a participant or,
b) What is the likelihood that this person could become an ''expert'' on the jury because of some personal experience he/she has had with the issues in this case?
c) In light of all of the information about this juror (The 'constellation' of all relevant information), is he/she likely to be predisposed against me? If given a chance to talk to him/her, one-on-one, could I persuade him/her of the merits of my case?
Often, there is a tendency to focus on one of two isolated aspects of a juror's background, and make challenge decisions based upon those items alone. Unless you have conducted pretrial research and found that there is a reliable relationship between jurors' predispositions in your case and one or two demographic variables, decisions made on narrow interpretations are often misguided.
It's also important to reflect on your rapport with each juror. Rapport should be factored into the analysis in the final decision-making stage. Inexperienced attorneys will often use rapport as the first, or only, criteria for keeping/challenging a juror. It should never be overlooked but it should be examined only after an objective review of the juror is undertaken.