Voir dire is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve (knowledge of the facts; acquaintanceship with parties, witnesses or attorneys; occupation which might lead to bias; prejudice against the father being appointed the primary; or previous experiences such as having been sued in a similar case).
Actually one of the unspoken purposes of the voir dire is for the attorneys to get a feel for the personalities and likely views of the people on the jury panel.
In some courts the judge asks most of the questions, while in others the lawyers are given substantial latitude and time to ask questions. Some jurors may be dismissed for cause by the judge, and the attorneys may excuse others in “peremptory” challenges without stating any reason.
Questions asked to determine the competence of an alleged expert witness
Any hearing outside the presence of the jury held during trial. A well prepared voir dire allows the attorney to focus on having a conversation with the jurors and appreciating their nonverbal behavior.
When entering the courtroom, the attorney or paralegal should be watching the jury panel interact with each other.
Who is sitting by whom? Who seems to be friends? Are more than one of these friends sitting on the panel? If they are together, they are likely to vote together. Make sure that they are “good” jurors.
Block voting can help or hurt
Are they reading any books? If so, what kind of book?
If they are reading a romantic novel, then they tend to be more emotional in their thinking.
Whether one is first or last in voir dire, be prepared to start talking with the jury immediately.
Do not fumble around for papers or move the podium, but stand up and start a conversation. Get their attention first.
This is their first impression of you speaking, and you should give them your full attention. Make them feel important. Some attorneys may talk really brief about the tradition of jury trials and how important their service is to our society.
If the jurors’ first impression is that you are giving them your undivided attention and that they are important, then that would be considered a good first impression. After the first impression is laid, then you can move a podium or look through your papers to continue. You have to be sure that the questions you crafted will not embarrass any jurors.
Remember that many will not be comfortable speaking in public.
Asking them personal questions may end up ostracizing you from the panel.
Questions that will put jurors at ease about the process
Try to start with questions that will put jurors at ease about the process so they will open up.
Avoid questions that make the jurors feel inferior. If you come across as arrogant or superior, no one will like you or listen to anything you have to say. This is probably the biggest mistake that an attorney can make in voir dire.
Jury selection is not a cross-examination, but more like a direct examination. In cross, you ask leading questions to illicit a specific answer. In direct, you want witnesses to tell their side of the story. That is what you are trying to get out of the jurors.
You want to start up a discussion with them about certain topics. Cross examination questions are adversarial in tone. You want the jurors to like you, not get defensive. Ask questions about them in a way that they will be glad to respond. Be careful about asking too personal of questions.
You do not want to alienate somebody by hitting a raw nerve on a personal topic.
Make sure your questions are obviously relevant to the case at hand. Do not ask “What was the last book you read?” That might be good in a large case with a written out jury questionnaire form prepared by the parties beforehand but not in open voir dire.
If you have pre-ranked your jurors, direct the question to those that you rank low. As a general rule, avoid asking questions of your higher-ranked jurors. You do not want to give the other side any reason to strike them. You need to be looking for a good reason to strike for cause the ones you do not want. The exception is when there is a particular issue that needs to be flushed out early.
Risks of voir dire
If you can get enough jurors talking positively about your position, the others may be influenced. One of the risks of voir dire is that you expose your high-ranked jurors to opposing counsel for them to strike.
One strategic aspect is to ask questions in a way to bury your good jurors and flush out your strikes. In an insurance bad faith case, an attorney may ask, “Do you believe insurance companies try to unfairly avoid paying claims?” This question may get a whole lot of affirmative answers, too many to be really helpful. Neither attorney will have enough peremptory strikes to deal with that question, so it is tactically ineffective.
However, if you quantify the question, you narrow the scope and bring out those with stronger opinions on the issue.
So, now the pool of strikes became a lot smaller for defense counsel to identify, while the plaintiff’s counsel will be stuck with an even larger group that could be focused against him or her.
The attorney wants to get a small number of jurors to answer to a question that will show strong convictions on an issue.
This narrows the number of potential strikes to work with while not exposing your best keepers. Divorce and Child Custody cases typically will find strong emotional issues when they have went through a divorce in the last 5 years, or have young children.
Also, you will find some people who very much favor women under almost every circumstance.
ABOUT THE AUTHOR
Michael Busby Jr. is a divorce & family law attorney, who practices in Harris and Fort Bend Counties, Texas. He has been in practice for over 14 years and has tried over 300 cases.
He is familiar with the policy and procedures of the Harris and Fort Bend County Texas family law courts.
Our office is open until 8:30 p.m. on Wednesdays and Saturday from 9 a.m. to 1 p.m. for working folks. Michael Busby Jr. 6100 Corporate Dr Ste 190 Houston, Texas 77036 (713) 974-1151 281-DIVORCE Visit me on the web at www.busby-lee.com
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