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Voir Dire: An Overview-y Th oma s J . M cD erm ott, J r.

Voir dire is your first opportunity tosell yourself, your client and yourcase to the jury. Voirdire, if you canget it, should not be wasted.A B a general rule in Southern California, you

can get voir dire in State Court but not inFederal Court. Federal voir dire, when con-ducted by the Judge, at best removes the com-pletely incompetent from the jury. It doesnothing to weed out the biased or the preju-diced, much less allow a modeling of the juryor preconditioning of the jury to your case.Most lawyers consider the principal pur- .poses of voir dire to be the following:1. Eliminate the incompetents from the jury.The defendant's brother is incompetent to sitin judgment.2. Eliminate the biased or the prejudiced

from the jury. In Irving Younger's words; a"biased" person is one irrationally predis-posed in favor of something, while a "preju -diced" person is one irrationally predisposedagainst something. The dictionary does notnecessarily support this distinction, but if itwas good enough for Professor Younger, it's

good enough for me.3. Model or profile the jury to your case.This means, in crude terms, that the plaintiffwants nothing but bleeding heart, guilt-riddenliberals who recently have been defrauded byan insurance company, while the defendantwants all CPA:s.With the advent of today's jurythink tanks such as Litigation Sciences andHale Starr & Associates, your juror profile canbe developed to the fine point of a 500-wordPersonals advertisement in the Village Voice:e.g., "SWF, into kittens, pasta, long walks andBach desires. . ." etc. .4. Precondition the jury to your case. At theend of a successful voir dire, the jury shouldbelieve roughly that your client is the salt ofthe earth and irrationally honest; that theother party is a scum; that the facts are so one-

sided that the whole trial would be a bore ex-cept for the anticipated pleasure of socking it............................Thomas J McDermott, Jr. practices with Rogers& Wells in Los Angeles. He wishes to ackmouiledqethe contribution of Mark Selig, also of Rogers &Wells.

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to the other party with the verdict; and thatyou, the trial lawyer, are a decent person, nottoo bright, but who cares since the facts areall on your side anyway.There is continuing tension between thebench, who generally feel that only one andtwo above (getting rid of the incompetent, thebiased and the prejudiced) are proper, and thetrial lawyer, who wants one, two, three andfour and would invite the jurors over forcocktails if he could get away with it. Thereis, to my knowledge, no conventional wisdomor rule of law or ethics to resolve thisdichotomy (although there is some literatureto the effect that attempting to tell your storyto the jury may be unethical). The trial lawyeris designated an advocate and, in my opinion,should push to accomplish all four. The judgemust make the system work and cannot allowunfettered voir dire or we might never get tothe trial itself.You cannot have a meaningful voir direunless you ask the questions. Forget FederalCourt. (As with anything, there are certainminor exceptions to this.) You can't hope toweed out the biased or the prejudiced or toprofile the jury unless you get the jurors talk-ing. This requires your use of open-endedquestions, those where the jurors must expressan opinion and not just answer' 'Yes" or "No."Therefore, getting a free dialogue, a conver-sation, if you will, with the juror is important.On the other hand, you cannot preconditionthe jury to your case unless you tell your story.This requires some talking by you. Balancebetween these two opposing concepts isnecessary.There are two items that seem so obviousto me but are often not allowed. First, it makesno sense to attempt to empanel a jury thatknows nothing about the facts. Lawyers shouldbe allowedto explain their case in broad termsand to ask specific questions about aspects oftheir case. The statement usually given by ajudge - "This is a breach of contract case bet-

ween the plaintiff ABC Company and thedefendant XYZCompany" - simply does nothelp.Second, it is rude to ask a total stranger aseries of personal questions, which is what voirdire is. To ameliorate this, the lawyer shouldbe allowed to introduce himself or herself andprovide some personal information. The juror

, G etting a free dialogue,a conversation i f youwill, with the ju ror

,is im porta nt.

does not want to hear that you went to Har-vard Law School, but will be interested toknow if you are married, if you have children,and other semi-personal items such as that.Officially,voir dire is a formal selection proc-ess by which the trial counsel and the courtare given the opportunity to converse with andquestion a number of randomly selected in-dividuals. The process of voir dire variesamong jurisdictions but [mal decisions as tothe specific procedures are usually within thetrial judge's discretion. The purpose ofvoir direis to provide counsel and the court with anopportunity to question and evaluate poten-tial jurors for possible prejudice and bias whichmay interfere with a fair consideration of theevidence. Once a prospective juror has beenquestioned. he or she may be excused forcause, counsel may exercise a peremptorychallenge, or counsel may elect to accept theindividual on the jury. The ultimate goal of voirdire, ideally, is to empanel an impartial jury.

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"Our research shows that 50% of all jurors decide a caseafter opening statement. Since I just finished mine, those ofyou who feel my client is innocent please raise your hands."

As an advocate, however, your function dur-ing the jury selection process is both clear andsimple: you want to .select the jury that willbe reasonably fair, is favorablydisposed to you,your client, and your case, and will ultimate-ly return a favorable verdict. Your opponent,of course, while also looking for a jury that hasan open mind about the case, is looking fora jury that will react favorably to him, hisclient and his case.The bench and bar each have a differentperspective of voir dire practice. Court deci-sions, dicta, and the general literature indicatethat much of the judiciary objects to attorneyabuse of the probative and explicative pur-poses of voir dire. Instead, the judges com-plain, lawyers use the examination to gainadversarial advantage. The Judicial Conferenceof the United States predicts the following:

(1) Attorneys will strive to convert voir direinto a search for partial rather than impartialjurors; (2) attorneys will use voir dire to ad-vocate their cases, offer instructions on thelaw, and influence prospective jurors;(3) prospective jurors may be exposed to"abusive, unfair and unnecessary voir direquestions' ': (4) voir dire will consume moretime, contributing to court backlogs.California Superior Court Judge RonaldGeorge said that the California law permittingreasonable attorney voir dire has resulted inlengthy juror questioning. ''As the judge in thetwo-year long Hillside Strangler trial, I foundit rather disconcerting to be congratulated bysome of my judicial colleagues for taking only54 court days to select a jury, a shorter periodthan was anticipated given the complexitiesof jury selection under California procedure.' '

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- Scope and Conduct of Voir Dire-There are several methods by which courtsconduct the jury voir dire examination. Thestyle of voir dire can vary in terms of lwwquestions are put to the potential jurors anduiho asks the questions. Depending on thejurisdiction, the judge, or even the type ofcaseinvolved, potential jurors may be questionedeither in a group or individually or a combina-tion of both. The questions posed to jurors

may corne from the judge, attorneys, or a com-bination of the two. There are, nevertheless,three principal methods by which prospectivejurors are examined.The procedure for jury selection in federalcourts is set out in the Federal Rules of CivilProcedure. Rule 47 provides as follows:E::cam ination oj Jurors. The court maypermit the parties or their attorneys toconduct the examination of prospectivejurors or may itself conduct the examina-tion. In the latter event, the court shallpermit the parties or their attorneys tosupplement the examination by such fur-ther inquiry as it deems proper or shallitself submit to the prospective jurorssuch additional questions of the partiesor their attorneys as it deems proper.Rule 47 gives the trial judge wide discretionas to the scope and conduct of voir dire. Therule has been given a liberal interpretation bythe courts. Some federal trial court judges inthe complete exercise of that discretion insiston doing the voir dire to the exclusion ofcounsel.This procedure has been condemned bycourts which acknowledge that voir dire inboth civil and criminal cases has little mean-ing if it is not conducted by counsel for theparties. The American Bar Association's stan-dards for trial courts state that:A judge cannot have the same grasp ofthe facts, the complexities and nuancesas the trial attorneys entrusted with thepreparation of the case. The court does

not know the strengths and weaknessesof each litigant's case. Justice requiresthat each lawyer be given an opportuni-ty to ferret out possible bias and pre-judice of which the juror himself may beunaware until certain facts are revealed.The procedure for jury selection in moststate courts allowscounsel to conduct voir direand cover all relevant and material mattersthat might bear on the possible disqualifica-

tion of a potential juror. The trial judge hasthe power to exercise "broad discretion" withreference to the scope of the inquiry of andconcerning prospective jurors. The court willusually ask the jurors some preliminary ques-tions to determine i f any jurors clearly can beexcused for cause. After asking these ques-tions, the court will generally turn the ex-amination over to counsel, after advising thejury that questions asked by counsel, thoughseeming to be personal in some respects, arenot meant to be and are asked for the purposeof ascertaining whether any person on the jurypanel has any feelings or background that

, The juror does not wantto hear that you went,to Harvard ...

would be prejudicial to one of the parties tothe litigation.The voir dire should have no time limita-tion. The trial judge, however, may seek to ex-pedite the jury selection process by directingthat some questions be put to the jury as agroup and some to the individual jurors.

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Some courts incorporate elements of boththe Federal and State court systems. The trialjudge generally asks preliminary questions ofall potential jurors, followed by questioning of.one or all jurors individually. After the courthas completed its examination, the courtallows counsel to probe (usually within timelimitations) further into the background of anyof the potential jurors.

, Rule 47 gives thetrial judge w ided iscretion as tothe scope andconduct of vo ir d ire. '

- Purpose of Voir Dire-The functions and purposes of voir dire ofthe potential jury are numerous. First of all,the purpose of voir dire is to discover the jurorthat has no biases, prejudices, notions orthoughts that are contrary to any of the posi-tions you have on either the law or the factsof the litigation at hand. Hence, the functionof voir dire is to get information from the juror,to know how the juror thinks. The voir dire.is used to question jurors about their back-ground. The information gained gives counselsome idea about the juror's receptivity tocounsel's case. The juror's occupation, educa-tion, residence, and even the book he or shebrings to the courtroom indicate a lot aboutthe person. The voir dire is used to discover

who on the panel will be imperceptive,unintelligent, unreceptive to your case, whilelooking to retain the more intelligent, unbiasedmembers of the panel who will, by reason oftheir background, experience or temperament,favor your client's view in the controversy.- Specific Purposes of Voir Dire-A. Impart Information to the Jury. The useof voir dire to develop the theme of your caseis essential. What is the selling point of thecase? What is the salient reason why a ver-dict should be returned for your client? Pro-perly formed questions can impart the client'sstory in a favorable light to potential jurors.Many judges report that lawyers use up to80% ofthe voir dire time trying to indoctrinatethe jurors. Judge Witman Knapp of New Yorkvoices a common bench attitude. "The vice[of attorney participation] is that voir dire isused to condition jurors, not to select jurors.Accordingly, many states give trial judgesthe authority to bar questions that "indoc-trinate" or "prejudice" prospective jurors. Not-withstanding the apparent proscription, trial

advocacy manuals frequently urge lawyers tocapitalize on voir dire as an opportunity to in-fluence jurors.B. Discovery of Adverse Bias and HiddenAttitudes. The opportunity to question jurorsabout their backgrounds to discover anyadverse bias, hidden attitudes, preconceivednotions, ideas or formed opinions is given sothat you may secure the information necessaryto exercise challenges for cause or peremptorychallenges. As plaintiff's counsel in a malprac-tice action, for example, you do not want adoctor or his or her spouse sitting on the jury.

Limitations on the scope of voir dire inhibitthe right to the intelligent exercise of peremp-tory challenges, the importance of which hasalways been recognized by the courts. It is thetrial judge's duty to ensure that the jury is im-partial; without adequate voir dire this dutycannot be discharged.

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C. F Syc ho lo gy o j the Case. From the momentyou step into the courtroom you are a psy-chological event to the entire venire of pro-spective jurors. Jurors watch every move youmake. Jurors observe how you interact withthe court personnel, your client, and anyoneelse you talk to. Youmust put your best footforward in all that you do. Youmust be an af-firmative force in the way you act and in whatyou say when voir dire commences. Youmustplan voir dire examination to be a persuasivepsychological event for the jury. In doing so,three things are essential:

1. Establish CredilYility with the Jurors. Per-sonal credibility with the jurors is of utmostimportance. If the jurors do not like you, it willbe harder for them to believe in your client'scase. There is no question that you canenhance your credibility by the way you act,dress, conduct yourself, and by demonstrating

, The use of voird ire to develop thetheme of your case. . 1 'S eseen iia .

during voir dire that you have done yourhomework. By establishing your credibility,you give credibility to your case. You shouldnot exaggerate the case. If you understate and. underplay, you will gain the admiration andrespect of the jury, which will rub off on yourcase.2. Be Sincere. There is no substitute for

sincerity. You should not be a phony. Youshould tell it like it is to the jury, who will seeit and understand it. Sincerity wins. Youobvi-ously want the jurors to likeyou and hope youwill like the jurors. If you feel you like a juror,it is probable the juror likes you. This issomething you can sense. Certainly you aremore persuasive to people you like. Or to putit another way, people who naturally like youare more likely to be of your persuasion, morelikely to listen to you, and more likely to followyour direction.

,Jurors w atchevery move

,you make.3. Establish a Rapport. The first contact the

actual jurors have with you is during voir dire.Building a rapport with the jurors is essentialto the effective presentation of any case. Whileoften overlooked by many trial attorneys, thejurors are ordinary people. They want tounderstand what has happened in the case,they want to do what is right, and they wantto trust you. Jurors must feel likethey are yourfriend, your confidant. Jurors need not alwaysbe your best friend, but they need to feel com-fortable with you. Voirdire is an excellent op-portunity to set the jurors, who themselves areextremely nervous, at ease. The jurors will ap-preciate it, and your case will benefit from it.Until the "perfect" method of voir dire isdiscovered, the tension between the variousviews on voir dire must be accepted. Thecourts' concern with speed and efficiencymust be outweighed by trial counsels' pursuitof the' 'impartial jury"; the adversarial systemdictates nothing less.

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