By Dr. Ken Broda-Bahm:
When voir dire goes well, it creates a balance between the goals of spotting the high-risk jurors and safely drawing themes from the more favorable jurors. At the same time, the questioning process should build rapport and feel natural to both the attorney and the panelists. When voir dire goes wrong, it is often in one of two ways. On the one hand, some attorneys will ask only tightly controlled questions (yes/no, or cross-examination style) that are designed to lead and minimize the risk that prospective jurors will taint the panel by sharing opinions and experiences that run counter to your messages in the case. On the other hand, some attorneys will simply ask jurors what they think on topics relating to the case, giving equal voice to those whose views would help and those whose views would harm your message. The first approach errs in learning too little: constraining the discovery of relevant information on those who will judge your case. But the second approach errs in potentially learning too much: creating the real risk that unfavorable jurors will not only be discovered, but given a soapbox as well.
The right balance is to identify the bad jurors, but talk to the good jurors. In other words, your questions should create a context in which less favorable jurors are comfortable admitting to a bias (often, by simply raising a hand to agree or disagree with a statement made by another panelist), while eliciting the greater balance of thematic statements from favorable jurors when they are in a safe and strike-proof majority. Even as you try to limit the soapbox opportunities offered to less favorable jurors, you also need to ensure that the panelists believe that you are genuinely interested in hearing all they have to say.
In this post, the first of a three-part series, I will be introducing an approach to question structure that I call the "pivot." The basic approach is to ask open-ended questions (so panelists don't feel hemmed in or led), but then strategically pivoting off those answers in order to focus discussion in ways that reveal the higher- risk jurors while talking to the lower-risk jurors. In this post I'll describe the basic model, in the next post I'll discuss some adaptions to make when the conditions get tricky, and in the final post I'll share a short video demonstrating the process.
Like a good witness examination, your voir dire should be neither off-the-cuff, nor unalterably scripted. It is essential to have a plan, but equally essential to stay loose enough that you can react to what you're learning and choose follow-up questions that aren't in your notes. Unlike good witness examination, the goal is to genuinely discover what the target is thinking. That is where the pivot comes in: You need to control and focus discussion while still showing genuine interest in what they have to say. In exercising this kind of soft control, the fundamentals are to avoid overexposing favorable jurors, or overcommunicating with unfavorable jurors.
To do that, my model breaks down into a series of steps. It helps to keep the broad structure in mind so you mentally know where you are in the process instead of just marching through a list of questions. Using a running example of voir dire in an employment defense, let's look at the sequence you would follow within each major topic.
1. The Warm Up
When taking a deposition or examining a witness in trial, you have a right to expect that the witness is ready to answer as of the first question. But you can't expect that with your potential jurors. Because you are expecting them to not just answer questions, but feel comfortable enough to share their own attitudes and experiences, they need to be warmed up, or in psychological terms, "primed" to think about and share their feelings. As you introduce each topic, start with a softball that brings the issue to mind. You can pose the question to the whole group or you can select a potential juror that you haven't heard from yet.
Attorney: How many of you have had a job where someone else is deciding if you're hired and fired -- In other words, not the boss at the top, and not your own boss either? By a show of hands, who has or has had that job? Okay, that is pretty much everyone. Mr. M, what was the most recent job like that for you? Ms. J, how about you?
2. The Open-Ended
Once the topic has been introduced and panelists have drawn on their own experiences and thoughts on the subject, it is time to ask an open-ended question. The goal is to get a potential juror to express an opinion, but you don't need to (and won't have time to) ask each one individually. Initially, you can chose someone you haven’t heard from, or someone at random. As you learn more about the likely opinions they hold, however, you can select panelists who are more likely to give a helpful response. If time permits, ask each member of the panel at least one open-ended question. If a potential juror is neutral or has no real opinion they can articulate, simply select another member of the panel and ask the same question.
Attorney: How many of you have heard of something called "at will" employment, or the idea that an employer or an employee can end the employment relationship at any time, with or without cause, just by giving notice? What do you think about that idea? Do you think it is fair or unfair?
3. The Pivot
This step is obviously the key to the approach. Instead of asking each of the venire members in sequence what they think, the trick is to turn an individual answer into a group answer by pivoting off the first panelist's response. It can be as simple as asking, "how many of you agree?" or "how many of you disagree?" and calling for a show of hands. Keep two questions in mind as you transition from the prior answer: One, "Does the response help or hurt my case?" and two, "Is the response likely to be a majority or a minority point of view?" I'll cover this more fully in part two of this series, but there will be some situations where you'll want to recast the question a bit as you pivot in order to reduce the chances of putting a spotlight on potential jurors that are favorable to you, but in the minority on the panel (as doing that just helps the other side identify their strikes). Ultimately, you want to pivot with the goal of dividing the group and having a safe and unstrikeable majority on your side of the question. For now, let's focus on the simplest illustration in response to the open-ended question above.
Mr. A: "At will" employment is just the reality these days, it's inevitable.
Attorney: Why do you think so, Mr. A?
Mr. A: Companies need to be flexible, so sometimes they just need to reduce their work force, and sometimes it just isn't working out.
Attorney: Thank you, so you think "at will" employment is something companies need? By a show of hands, who disagrees with Mr. A? And who agrees?
Note that in response to that question, most groups will divide themselves so that a majority ends up supporting "at will" employment, at least in theory. If it breaks that way, you can take note of who the worse potential jurors are (those who disagreed with Mr. A), while also noting the better potential jurors within the safe majority (those who agree).
4. The Low Risk Follow-up
There is always some risk when you follow up - since you never truly know what a potential juror will say. But after the group has been divided based on a question like the one above, it is decidedly more predictable to follow up with the group that is likely to be lower risk and more favorable to your side of the case. Remember the two questions to keep in mind when you hear the open-ended response: Is it helpful or harmful to my side, and is it likely to be a majority or a minority point of view? Your expected answers to those questions will guide how you follow up. When a potential juror responds with a helpful majority opinion, you will want to amplify that response by spreading the theme to others on the panel, asking for more on that opinion from the same jurors and others. When jurors respond with a harmful minority opinion, flip the statement by asking about the opposite opinion.
Attorney: Ms. S, you raised your hand indicating that you agree that "at will" employment is necessary. Why do you think so? Tell me more about that.
Ms. S: Its never nice to let someone go, but the business has its first obligation to the customer.
Attorney: Thank you. Mr. D, you also agreed with Mr. A. Can you think of any examples where a business would need that kind of flexibility?
Mr. D: Sure, a company may need to close a location or they may need to address a productivity problem. Bottom line, they need to build the best team they can, and that's their right.
Attorney: Thank you.
5. The Wrap
As a final step before you leave a topic, it is often necessary to wrap things up by getting a commitment, correcting any misimpressions that your question may have left, or countering any bad messages that may have come out of juror comments. Note that the wrap up can be one of the few times where you will want to ask a leading question. And in that case, you lead for the same reason you lead in cross: because your goal is more focused on making a point than on gaining information.
Attorney: Thank you all. So knowing that there are different views on whether "at will" employment is fair, does anyone doubt that in many cases, it is perfectly legal?
Following that series of questions during a typical employment defense voir dire can be expected to fulfill all of the goals. You build rapport by demonstrating interest in what the panelists think and by asking open-ended questions. You learn about the higher risk jurors by pivoting off a response in order to divide the group. And you allow panelists to reinforce your case's positive themes by following up with the lower-risk members of the venire. Of course, in the real world the questioning is not always that clean. I'll follow up with a discussion of some of the difficulties in part two of this series and provide a video of a demonstration in part three.
There are naturally many approaches to oral voir dire, and the pivot model is just one approach. Whatever approach you choose, your goals in conducting oral voir dire should be to build rapport, learn about high-risk attitudes, and get jurors talking in ways that reinforce your themes.
Other Posts on Oral Voir Dire:
- Spot Your Jury Leader
- The Products Survey (Part III): Safety Test Your Jurors
- Don’t “Narrow Bracket” Your Choices in Jury Selection
Image Credit: Jason Bullinger, Persuasion Strategies