A Response to Professor Stewart on Voir Dire

From Judge Christina Habas:


After reading Professor Stewart’s blog entry regarding teaching jury selection, I thought it might be appropriate to offer some different thoughts. I completely agree that lawyers and judges alike know how important jury selection is: I vehemently disagree that nearly all lawyers and judges find jury selection to be their least favorite part of a trial. As a trial lawyer, I adored jury selection. It was interesting and never predictable and it helped me in my listening skills in a way that no other exercise could have. It was only after I realized that I was the least important person in the room during jury selection that I was able to calm my fears and ease my anxiety and take it for what it truly is: a way (if done correctly) to gain insight on the kind of story that I had to present to the jury panel that would be acceptable to them.

For this reason, I must take issue with Professor Stewart’s initial observation that “lawyer as speaker” is appropriate in jury selection. I do not read his blog as saying that he believes the “speaker” role is the most important role, however, he offers some insight that he believes there is a place for “lawyer as speaker” (i.e. 4) Role model, self disclosure). While I do not care to necessarily save a trial lawyer who starts telling the jury his opinions about certain issues, all this does is reinforce what the jurors already believe: that lawyers are full of themselves and want to state their own opinions. There is no need to offer self disclosure on anything. Instead of ever taking a “lawyer as speaker” stance, I offer “lawyer as facilitator”. Think of fully engaging your inner Oprah. While you must speak (no questions mean no answers) you are not the focus at all. You must phrase your questions in a way that makes jurors feel completely comfortable in answering them honestly and completely.

Professor Stewart’s comments about the series of rhetorical questions designed not to elicit a response but to “argue” is right on, for this very reason. Ask any juror if they understand the burden of proof, or some other legal concept, and all you will get is a sea of disconnected people who simply and unthinkingly nod their heads whenever you ask a question like that. This doesn’t mean they necessarily understand, or agree, with that law, only that they do not want to appear stupid or biased.

Professor Stewart’s suggestion number 2 (Pick a critical issue in your case) may be problematic from a different perspective: a judge may not let you do that. There may be a time and a place for this kind of questioning, but it truly does not get you to the ultimate issue – very few jurors will admit that they are fine with “frivolous lawsuits”, and many will simply tell you that they agree with tort reform. This does not a challenge for cause make. This is the trouble with asking people hypothetical questions in a factual vacuum. I am trying a witness murder case this week that will likely include evidence about gang membership. If all the lawyers did was ask people their views about gangs, all I would get is a lot of jurors telling me they are “against” gangs. In short, we would gain absolutely nothing. On the other hand, if the question was asked in a way that brought us to actual, real-life experiences (has anyone here ever had any dealings with a gang), and then the follow-up to ask the juror about those facts, you might get a good discussion going. Issues spoken of either in general terms, or without a factual anchor will not likely yield anything usable in jury selection.

Professor Stewart’s final comment about waltzing the jurors toward a challenge for cause is very interesting. A lot will depend on the amount of time the lawyer is given to complete jury selection. There are courts all over this country where there are significant time limits placed on jury selection. I can recall one case in particular (in County Court) where I was given all of 10 minutes to complete jury selection. I didn’t have time to “jitterbug” any jurors toward a challenge for cause, let alone a “waltz”. Further, in many federal courtrooms, the lawyers are given absolutely no chance to ask questions of any kind, yet still must prepare a jury selection through written questions. Because of this, lawyers should not be lulled into a false sense of ability to take their time. Lawyers must learn to get to the point – quickly and efficiently – or lose any opportunity they have to obtain sufficient information to make any intelligent choices about jury deselection.

Of course, the best jury selections are the ones that are started by an effective judge, who explains both the purpose of jury selection, and also lets the jurors know that they can comfortably admit to things that do not sound like they are “fair”. It would be nice to start a series of blog discussion on what we would like to teach judges about jury selection.

Jury selection is probably the single most difficult advocacy skill to teach. I appreciate the opportunity to hear about other ways of looking at it and to begin a good discussion about it. We will all turn out to be better advocacy teachers after that.