Most non-lawyers believe that trial lawyers actually “pick” who will be on their jury. In reality, the lawyers pick who will not be on their jury and the remaining, non-excluded jurors make up the jury. This is done through a process known as voir dire, a Latin word that means “to seek the truth.” Voir dire is a trial lawyer’s one and only opportunity to have a direct conversation with the potential jurors and learn more about their background, beliefs and attitudes.
In a typical case involving a 12-person jury, the jury pool might consist of 40 jurors. The jurors’ names are drawn by computer and put in a numbered order from 1 to 40. The 12-person jury will be comprised of the first 12 persons who are not excluded during the voir dire process.
The process itself begins when the lawyers are given certain basic information about the members of the jury pool. The basic information normally consists of name, address, age, occupation, gender, race, marital status and other basic information. After having a brief opportunity to review the information, the lawyer then has an opportunity to speak directly to the jury pool to tell them about the case and ask them questions. While many lawyers tell the jury pool that they are simply looking for a jury that can be fair and impartial, they are either lying or are terribly naïve. What a lawyer really wants is a jury that will be predisposed to his client’s position and free from any biases that might make them difficult to persuade.
The key to a successful voir dire is to learn as much as possible about the jurors’ attitudes towards your case. While it is important to learn some general information about the jurors — such as their political persuasion, whether they are conservative or liberal, their attitudes towards large damage awards, etc. — what a lawyer really wants to know is how the jurors will react to the specific facts of their case and the “story” that the lawyer plans to tell during opening statement.
Although lawyers are prohibited from using voir dire to argue their case, a skillful lawyer will tell the jury as much as the judge will allow about the facts of the case, the themes of their case and the issues they will be called on to decide. A good trial lawyer will ask jurors direct questions to test out their trial themes and factual contentions. One very useful way to do this is to use “scaled” questions where the jurors are given two opposite propositions and asked to identify where they would fall on a scale between the two positions. These scaled questions can be phrased to learn the jurors’ thoughts on the trial lawyers’ theories of the case.
While it is important to tell the jury about the facts and themes of the case and to establish a rapport with them, it is far more important in voir dire to listen than it is to speak. A trial lawyer will have more opportunities to tell the jury their side of the story, including during opening statement, which immediately follows voir dire. But voir dire is the only time until the trial is over that the lawyers can actually hear from the jurors themselves. Some lawyers lose sight of this fact and spend too much time conveying information and not enough time gathering information.
After the lawyers have asked questions of the jury pool during the voir dire process, they then “de-select” certain jurors. This is done through challenges for cause and peremptory strikes. A challenge for cause is made by arguing to the judge that a certain juror should not be seated because something they have said makes it clear they cannot be impartial, that they have already made up their mind or that they cannot give their client a fair trial for some reason. The judge decides whether the attorney has proven the juror should be excused, often by questioning the juror outside the presence of the rest of the jury pool. Peremptory challenges are made by simply identifying those jurors the lawyers wish to strike for whatever reason. The lawyers are not required to identify the reason for the strike and simply provide the court with a list of the jurors they wish to eliminate. Typically in a case involving a 12-person jury, each side is given six peremptory challenges. Once the challenges for cause and peremptory strikes are made, the first 12 jurors on the numbered list who have not been eliminated comprise the 12-person jury that will hear the case.
By thoroughly preparing for voir dire, a lawyer can literally make or break his case. The fact is that everyone has certain biases and beliefs that have been shaped by their life experiences. Those biases and beliefs make some people predisposed to a lawyer’s case and others predisposed against it. While a skillful lawyer can sometimes overcome a hostile or unsympathetic jury, the best lawyers make sure that the jury that is seated is already on their side.