By Dr. Ken Broda-Bahm:
If, by the end of oral voir dire, you've broken the ice, earned some credibility and rapport, learned the basis for at least a handful of cause challenges and strikes, and spent the balance of your time eliciting themes from jurors that help your case, then you've done your job. In part one of this series, I shared one approach for balancing these goals that I call the "pivot" approach. The basic idea is that, instead of simply opening up the forum to let jurors voice thoughts good and bad, or asking leading questions that just prompt jurors to agree or disagree with your words, you start with an open-ended question, then pivot off a juror's answer in order to divide the group so as to know who is higher risk and who is a safe bet for sharing helpful themes. In theory, it comes down to loosely following the six steps discussed in part one. But in practice, the situation is not always smooth or simple. That is because people aren't fully predictable (if they were, voir dire would be less necessary).
Because the large group discussions in oral voir dire aren't fully predictable and individual comments can sometimes go in unexpected directions, there is a need to follow a plan, but also to stay loose in order to deal with surprises. The most important thing to be doing in voir dire is to be carefully listening to what the candidates are saying. And when those comments take you off script and into a tricky situation, what saves you is the ability to fall back on some good habits. In this post, I step beyond the basic model to add a discussion of what to do in trickier situations, and also share my own list of good habits in questioning.