Litigation Counsel of America

Edward P. Schwartz, Ph.D., M.S.L. Jury Consultant

April 22, 2016

Voir Dire Tips from the Trenches:

It’s all about the Follow-Up

Judge Conducted Voir Dire

A Recipe for Reticence

Upwards of 40% of jurors decline to volunteer relevant information• Sensitive subject matter

• Potential embarrassment

• Apathy/Fatigue

• “None of your damn business!”

• Creative interpretation of the question:• Doesn’t apply to me• They wouldn’t care about that.• I’ll probably never end up on this jury anyway.• They won’t get to me.• It won’t affect how I think about the case.

What do jurors lie about?

Whatever they don’t want to talk about

• Experience with criminal justice system• Arrests and convictions

• Victim experience

• Being witness to a crime.

• Sensitive topics:• Mental Illness/depression

• Discrimination

• Divorce/Family Issues

• Trauma

What can you do?

Maximize chances for jurors to talk

Craft voir dire questions to elicit “yes” responses.• Identify only your problematic jurors.

• Skip the, “Do you disagree…” questions.

• Focus on experiential questions.

• Use “Have you or anyone close to you...” language.

• Keep the questions as broad as possible.

• Avoid loaded questions and loaded language.

What can you do?

Maximize chances for jurors to talk

Follow-up questioning should be at side bar• Reduces stress – more informal

• Jurors will be more forthcoming

• Easier to allow attorneys to suggest follow-up questions.

• Naturally flows into discussion of for-cause challenges.

Encourage Juror-by-Juror follow-up, not question-by-question• More time to prepare for follow-up

• Topics can be prioritized

• Avoids fatigue issues

What can you do?

Maximize chances for jurors to talk

Avoid the dreaded compound question• One straightforward question at a time.

• Jurors should not be asked to evaluate their own biases

• Nobody wants to believe they aren’t fair

• Jurors don’t know enough about case

• Big loophole for those who don’t want to talk

• A juror’s ability to be impartial is ultimately a judicial call.

• Avoids confusion over what “yes” means.

What can you do?

Maximize chances for jurors to talk

Research jurors’ backgrounds• Issues missed in voir dire

• Concrete results force the judge’s hand

• Sometimes conflicts with voir dire answers.

• Use information strategically.

• Prioritize limited follow-up opportunities

Online Juror Background Research

Types of Juror Information

What do we look for?

What do we look for?

What do we look for?

What do we look for?

Experience with the Legal System

Searchable Database of State Court Cases

• Available in most states

• Can search by name of party, refine by date range

• Sometimes, disposition information is available.

• Sometimes, document can be viewed, downloaded and printed.

• Usually available for:• Civil matters• Criminal cases• Family court• Small Claims• Probate

Experience with the Legal System

Alaska

Experience with the Legal System

Arkansas

Experience with the Legal System

Arizona

Juror Data Sheet

Descriptive Information

Specialized Knowledge and Leadership Potential

Positive and Negative Attributes

Additional Information for Follow-up