Most veteran trial attorneys will agree that while a case is not always won at jury selection, it can easily be lost there. It is one of the three most critical moments of any trial (the other two being the opening statement and the cross-examination of the first witness), yet the voir dire is usually relegated to the proverbial background, only to be dealt with in the last few moments. days. –or even hours–just before the trial begins.
IF YOU WAIT UNTIL THE WEEKEND BEFORE TRIAL TO PLAN YOUR VOIR DIRE, YOU HAVE WAITED TOO LONG
Building your jury selection strategy should begin weeks before your case goes to trial, after you’ve done your pretrial research (you’ve done pretrial research, right?) and are beginning to prepare your case boss seriously. If you find yourself waiting until the Saturday or Sunday before trial, jotting down a few questions on a pad, and then showing up in court on Monday and conducting your voir dire, without the benefit of research-based or essay profiling, you may be missing out on the opportunity to educate your jurors and remove the ones most dangerous to you.
THE PURPOSE OF VOIR DIRE IS NOT TO DETERMINE WHETHER JURIES CAN BE FAIR AND IMPARTIAL!
I’m sorry, but there is no such thing as an impartial jury. Each person who comes to the courtroom (jury, attorney, judge, clerk, reporter, bailiff) brings two things with them:
1. Life experiences.
2. The attitudes that result from those life experiences.
Therefore, the purpose of your cross-examination is to uncover those attitudes and experiences, get jurors to talk about them, and then send home the people who have hostile attitudes toward your case and/or your client.
The key purposes of Voir Dire
o Find and fire jurors who will be detrimental to your case
o Put the issues of your case in front of jurors
o Find out who your jurors are and what they have to say on the issues, so you have a better idea of how to communicate with them during your case.
Your goals in Voir Dire
or Get them talking!
o Get them to talk about your topics
o Talk them out of jury duty if they are hostile to your case.
IF YOU ONLY REMEMBER ONE THING ABOUT THIS ARTICLE IT IS THIS
Going to trial without practicing your opening statement? So why not spend time rehearsing the part of the trial where you talk to the jurors first? If you don’t practice your voir dire, why not? If you practice it, do you practice with people in the room? If you practice with people in the room, are these laymen? If these are lay people in the room, do you ask for their input? If you ask them for feedback, do you apply it to the selection of your jury for trial?
The bottom line is that your voir dire, not your opening statement, is when you make your first impression on the jury. Make the most of the opportunity. Practice, refine your voir dire.