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Monday, January 24, 2011

More on Voir Dire: Teaching Techniques from Jeanne Jourdan

Jeanne Jourdan is a master advocacy teacher whose creativity, enthusiasm and skill have enriched generations of Notre Dame and NITA trial advocacy students. In the following post, she describes her methods for teaching voir dire to students.

I read both Professor Stewart's lecture on Jury Selection (available here) and Judge Habas's comments (available here) with interest. Here is a handout I use for a drill on Jury Selection when working with young lawyers and/or students. It offers practical techniques, borrowed from other professions, designed to help keep potential jurors actively engaged in the process, feeling competent, and listened to. It reflects my observation that lawyers who have no time limits are very boring and those with time limits often waste precious time. The class assignment is to prepare 5 minutes of jury selection in their case demonstrating 5 different techniques. By the way I think Teach like a Champion is a really helpful book for all of us who are teaching.

In Teach Like a Champion, Doug Lemov shares classroom techniques that put inner city students on the path to college. At Teacher’s U, the faculty from Uncommon Schools, KIPP and Achievement First are teaching these techniques to thousands of teachers. Lawyers can borrow many of these techniques in questioning potential jurors to put them on the path to a favorable verdict.

In the courtroom just as in the classroom, boredom, confusion and lack of activity are negative possibilities. Master teachers use a set of tools to help students stay engaged. We can too. In fact we must. Too often, if there are no time limits, jury selection is, as one judge in Goshen Indiana told jurors, “very, very tedious.” When there are time limits set by the court precious time is often wasted. We need to change. None of us wants tedium to be the first impression we create; nor do any of us want our first experience in the trial to be frustration.

Jury selection has one goal – excuse people whose experiences indicate they will reject our case. We ask questions to discover people who are pre-disposed to reject the law, the witnesses or evidence in our case. We ask questions to explore concepts key to our case and determine which potential jurors will reject them. Our questions are open... "Tell us, Describe, How did you, Raise your hand if...?" when we are seeking information and leading when we challenge for cause.

We can borrow techniques that effective teachers use to keep their students engaged and learning. There is a right and a wrong time to use these techniques, a time and a place for every tool. The art of trial advocacy is in the vision of when to apply a particular technique. Nevertheless learning the techniques is the first step toward success.

Please read this list of techniques which Doug Lemov has labeled and explained for the classroom and I have put into a courtroom context.

A.In the margin put a “?” beside those you do not understand;
B. Put a “+” beside those you think will be useful tools for jury selection.
C.Put a “*” beside five techniques you are prepared to demonstrate so others can learn from watching you.
D. Come to class prepared to ask questions for 5 minutes demonstrating your 5 starred techniques.

1. “Stand still” - when you want undivided attention. (Nothing in your hands, no checking, reading or walking).

2. “Cold call” – Ask a question first, pause briefly, then call on someone so that everyone prepares an answer.

3. “Wait time” – Ask question to group then say “I’ll give you think time”, pause before you call on someone.
Example: Q1. “What are the 2 most important aspects of doing your job well?

4. “SLANT “ - Stand straight, lean forward, act interested, nod and smile, track (look at) the speaker when a prospective juror is answering your question. It’s important to the speaker that you look like you are listening.

5. “Strong voice” - if it matters it’s important that everybody can hear.

6. “No opt out” - You get the answer “I don’t know” (the opt out) get another person’s answer and go back to the person who opted out and find out if he agrees.

7. “100%” - You get an almost right answer, smile say “you’re on the right track”, say “not quite”, say “almost there”, say “what’s still needed?” praise effort but do not confuse it with getting the answer right.

8.”Transaction costs” –. You want to get everybody involved with the least time devoted to any single person. Identify persons who reject your theory of the case or the requirements of the law; don’t try to change minds and hearts.

9.”No apologies” – A belief that jury selection is boring, a hardship or tedious is a self-fulfilling prophecy. Do not apologize for doing your job. Do not blame others for what you are about to do. Do not denigrate your competence or jury service itself as a hardship.

10”.Begin with the end” – Plan, plan, plan for the big picture first. It will tell you the factual and legal issues you need to discuss with the potential jurors and limit yourself to those points. Write down your objectives – challenge people whose experiences are negative on points 1. 2. 3. 4. 5. 6. 7. Limit the points to those that are needed for success.

11. “Post it” – write words down on a chart. Many prosecutors write down the elements. Are there any other charts? How many charts are too many charts?

12. “Shortest path” – Take the most direct route. If you want to ask questions about the law tell the jurors the instruction’s words then ask questions. If you want to challenge for cause switch to leading and ask the “fair and impartial” question. Example: Given your belief that police officers lie can you be a fair and impartial juror who listens to an officer’s testimony with an open mind?

13. “Double Plan” – What will all the other jurors be doing when you are talking or asking one person questions? Note: The fewer words spoken/ the greater the interest in them.

14. “Ratio - Play volleyball not soccer “ – You want to hear from as many potential jurors as possible. This means you cannot talk for a long time before you give the ball to them nor can one juror talk for long before you get the ball back and throw to another person.

15. “The Hook” – give a short engaging introduction. A story, an analogy, ice breaking humor, or a call to status before beginning your questions. Do not repeat the judge, talk about yourself or re-explain the selection process. Above all take less than a minute.

16.”Name the steps” - break down a complex task into specific steps. 10 STEPS to “decide the case” do any trouble you? Or There are ways to judge credibility (go to the instruction) who has used these before?

17.”Break it down” – Help by providing examples before asking questions. Example: The judge will instruct you that “beyond a reasonable doubt is a firm conviction in a matter of the highest importance to you when you are not required to act at all” for most people that was buying a house. For others it was the decision to have elective surgery. Who has had one of those experiences? A similar one?

18. “Check for understanding” - At end of discussion ask if everyone agrees then circle back to those who disagree to challenge for cause.

19. “Hands up” – Tell jurors to put their hands up when their answer is yes. Example: Who has a driver’s license? Who’s gotten a ticket? Who thought the ticket was unfair? Who drinks alcohol? Who has seen someone and decided he/she was drunk? Whose job required training? Who thought training improved their performance of the job? Who ever came to court before?

20. “Pepper” – short questions delivered without interruption or exploration during which everyone participates by answering with a hand gesture or nod.

21. “Write it down” – something you want them to remember requires that potential jurors already have paper and pencil. Look at #3.

22. “Everyday” – Reflects the theory that people’s everyday experiences and behavior reflects how they’ll act as jurors.

23. “Be positive” – model confidence in your case through body language – stand straight and still, look people in the eye, get away from the podium.

24. “Circulate” – Make sure you give every potential juror a chance to speak; don't start at either end.

25. “Communicate confidence” – Just as a teacher tells his students that they can do the task at hand the lawyer wants to communicate confidence in potential jurors ability through questions. Example: Will each one of you tell me an experience you have at work or within your family that will help you be a good juror?


“People who can get things done through others – those who persuade, those who can motivate, those who are liked and get along well with others – stand the best chance at becoming effective leaders.” Michael Zigarelli writes that there are 20 time tested human relations practices, “soft skills”, which are critical to success in business management. Often, lawyers who consider “hard skill “ points neglect “soft skill” considerations. Hard skills are the issues that need to be explored; soft skills are interpersonal skills. None of Zigarelli’s suggestions are original. They are time honored and battle tested. They are especially helpful to practice during jury selection. Here are the top 10.

1. Listen closely and actively – Nothing incenses a potential juror quite like the feeling of being ignored. SLANT will help you look like you are listening.

2. Smile A Lot - Check out your expression does it say “leave me alone” or “we’re in this together”?

3. Make Them Feel Important – Be an encourager and affirmer. Let jurors know that you think who they are and what they do has genuine value.

4. Remember every Name – Everybody likes the sound of their own name. When you use a person’s name it makes them feel memorable.

5. Focus on your Similarities – Look and talk and dress like they’d do in your place. Jurors are more likely to be influenced by people who are similar to them. Focus on commonality when you can.

6. Don’t interrupt when someone is speaking or complete their thought for them – it infuriates them.

7. Ask about their interests – People are most at ease talking about their work, family and hobbies; people love to talk about these topics and you will learn a lot about them when they do.

8. Show appreciation – when someone expands an effort from which you benefit – even if its something they’re obliged to do – let them know you appreciate it. People feel entitled to it and when gratitude is withheld resentment can fill the vacuum. Thank you, I appreciate your candor, That’s interesting all work – Do not reserve them for bad answers!

9. Identify jurors needs and get in the habit of meeting them – the trial is not all about you; some of the people in the box will have the power to return a verdict. Be sure everybody can hear, can participate, will feel smart, will feel listened to and appreciated.

10. Don’t assume you’re looking for a right answer – Change your mind-set from “let me tell you the right way to be a juror” to "this is a learning conversation". Ask questions to learn about people; every answer is the right answer.

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