Judge Thomas Hart, Circuit Judge, Marion County Circuit Court
(With the assistance of Kate Hall, Judicial law Clerk)
“If you can talk with crowds and keep your virtue,
Or walk with Kings – nor lose the common touch…”
This excerpt from Rudyard Kipling’s 1895 poem “If” provides a good illustration of the breadth of perspectives attorneys navigate when conducting voir dire. It is important to navigate well: lawyers who respect the variety of life experience that comes with each panel win more cases.
A seasoned trial attorney has only a small percentage of the life experience of those sitting in the box, and common sense is not checked at the door. I averaged individual juror age and total years for my last twenty 12-person jury trials: The average juror was 47.45 years old, and the average number of years sitting in each box was 571.65. The jury panel brings all of that experience to the trial. Voir dire is a chance to take advantage of all that life experience.
Voir dire is not a personality contest, job interview, or the time to try your case. Trial lawyers are overly ready to do battle on the first morning of trial; this is not conducive to effective jury selection. The most effective voir dire tactic is to engage in honest conversation with the panel.
Trial preparation includes voir dire. Questions should address actual or potential strengths and weaknesses in your case. It is your burden to make sure you know what aspects of your case might not sit right with an average juror. For example, in a low impact car accident that resulted in significant injury to your client, prepare to address your claims relating to these injuries from a seemingly minor collision. This is an invaluable opportunity to soften the hard points in your case. Addressing the “warts” in your case gives you credibility and increases your persuasive power.
To facilitate an effective, grounded conversation, an attorney should come across as interested, but not condescending; instructive, but not patronizing; and most of all, completely inoffensive. It is a difficult balance to strike, but good listening skills go a long way.
Creating a conversation in voir dire helps your case in several ways. In a conversation, jurors are more comfortable and answer questions honestly with less pressure to be “socially acceptable.” Skillfully phrased questions directed to the right juror can test the sensibilities of other jurors and educate the panel on the merits of your position. A conversational style can help to lessen any perceived power disparity between attorney and juror. This allows a juror to educate you on his or her position rather than just respond to questions.
Better yet, conversation can also help you explore the “why” behind people’s positions. People tend to personally identify with their positions, but can be more susceptible to a gentle testing of their biases if they don’t feel as though they are being grilled. When a juror speaks honestly about the reasoning behind their position, you can better identify how he or she will analyze your case.
Promoting a feeling of friendly conversation is effective in allowing jurors to open up so that you can get to know them. Pay attention to their responses, and don’t mistakenly offend. Whether the jurors actively like you is not that important. However, it is very important that they don’t dislike you. If you can master the art of conversation with jurors during voir dire, you will be a more successful trial lawyer.