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Monday, January 24, 2011

Teaching Voir Dire - an Approach where 'Cause' is King

Tom Stewart, director of trial advocacy programs at St. Louis University School of Law, contributes the following piece on teaching voir dire to law students.

The only place where a person ought to get a square deal is in the courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into the jury box.
Atticus Finch, To Kill a Mockingbird

Jury selection is the ultimate paradox: ask any 25 judges and lawyers which part of the trial they like least, Voir Dire will win hands down. Ask the same group which part of the trial is the most important, most will pick the very exercise they like least. In fact it is undoubtedly due to its importance, coupled with the false illusion of lack of control, that leads most advocates to dread the art of selecting a jury. Judges for their part have come to hate the exercise because misguided council see Voir Dire as their first opportunity to argue their case.

In teaching Voir Dire, I focus on the structural rules which naturally lead one to conclude that if the advocate is to have any real chance in removing jurors whose inner scripts prohibit them from fairly weighing the evidence, the advocate must learn how to question the venire with an eye toward identifying those who the judge would ultimately remove for cause. The peremptory challenges are just too few in number to do much good when the advocate is faced with a significant number of potential jurors whose minds have been decided by the type of case they where called to judge, or the presence of a particular fact. So the purpose of my Voir Dire lecture can be boiled down to one saying: "Cause is King!"

As to the approach, I have distilled the ocean of jury selection information out there into two fundamental acts the advocate engages in when she selects a jury: (1) Lawyer as speaker; (2) Lawyer as listener. I begin this discussion with the students by asking which one of these two approaches do lawyers like most? The answer is obvious, to say that lawyers are in love with the sound of their own voice is too cliche to be worth mentioning. But the real reason the advocate relishes the role of Lawyer as speaker is the illusion of control; the thought that if I am the one talking I am somehow "in charge" of the dialogue and thus the room. Why lawyers think this is anyone guess, lawyers as perpetual students, have been in any number of classrooms zoning out on a lecture delivered by the professor who thinks he commands the room.

Observe most any Voir Dire and you will see the Lawyer as speaker role in full display. A series of rhetorical questions designed not to elicit a response form the jury panel, but to impart (read argue) certain information: "Does everyone understand the burden of proof?"; "Can everyone hold my opponent to the burden the law imposes on her?"; "Does everyone understand that you are not to consider sympathy for the plaintiff in arriving at your verdict?" etc etc. While there is a place for the Lawyer as speaker role, it is too often the only role the advocate feels comfortable in, and rarely leads to a response that would trigger a for cause strike by the court.

The Lawyer as listener role requires the advocate to construct meaningful open ended questions designed to illicit responses on a topic central to the case. The goal here is to start a purposeful conversation with the venire. The goal is to identify those individuals whose life experiences result in inner scripts that make it difficult to fairly consider the totality of the evidence. This approach has multiple, interlocking steps, all of which require at least as much preparation as other aspects of trial:

1) Set the context: Describe your case or a particular issue in such a way that the audience will understand the reason for the open ended questions you are about to ask.

2) Pick a critical issue in your case: In my previous career as a plaintiff's trial lawyer, trying medical malpractice cases in rural Missouri, I always asked about the "tort reform crisis" and doctors "fleeing the state" from "frivolous law suits".

3) Develop a series of open-ended questions: These are questions designed to prompt the conversation on a critical issue in the case. The approach is everything; you want to create a welcoming environment so that everyone feels safe to express their views (see steps 4,5).

4) Role model, self disclosure: Take the opportunity to reveal something of your own thinking (or better still, evolution of thinking) on a topic in response to one of your own questions;

5) Welcome all responses: Remember, this is not the time or place to argue with the venireman; we want him/her to completely vent his feelings on the topic prompted by the open-ended question

6) Tip or waltz the troubling veniremen off into the hands of the judge for cause: Anticipation is key; anticipate the range of responses you are likely to get and predetermine a series of questions designed to gently move the venireman into the hands of the court. Most courts do not require the water boarded response "I cant be fair" but instead are satisfied when the juror admits that one side of the case starts at a slight disadvantage.

The wise advocate will remember the old saying, "You have two ears and one mouth and you should use them in that proportion". Listen twice as much as you talk, and with a gentle nudge, the court will help you toward the illusive goal of empaneling the fair and impartial jury.

Thomas Lee Stewart
Director of Trial Advocacy/ Asst. Clinical Professor of Law
St Louis University School of Law


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