What To Do (And Not Do) With Short Voir Dire Time

Voir dire time in many places is now limited to 15-30 minutes (if you get attorney-conducted voir dire at all!). Aside from filing motions for extended voir dire, arguing with the judge, asking for more time when your time is about to be up, and many other suggestions for getting more voir dire time, I want to address some ideas of what to do when you are stuck with such a small amount of time.

There are some very good attorneys and consultants who will suggest using scaled questions (those are questions where you have people give answers on a scale of 1-5 or 1-10, etc.) in such situations. They suggest coming up with some questions about tort reform or specifics about your case and go down the line of jurors asking where they fall on the scale.

I would suggest something different, however. I understand the need to get as much information from jurors in such a short amount of time but my fears in using the scaled method are:

  1. Unless you have really tested the questions and reliability of the scales, you may learn absolutely nothing. I often use scaled questions on my intake forms for focus groups and most of the questions asked have no correlation to the juror’s ultimate opinion. Many jurors who say they are in favor of caps, for example, will go way beyond their maximum dollar amount when they hear the facts of the case. Further, you don’t know why the jurors hold such beliefs or how ingrained the beliefs are unless you talk to them.
  2. You give up any chance you have to become likeable and create rapport with the jury. If all you do is go down the line and have jurors shout out numbers at you, the jurors learn nothing about you and you learn very little if anything about them. Jury selection is a time for you to create a bond with the jurors. Jurors are already degraded by being given a number instead of a name, herded like cattle, and told where to sit. You only add to their degredation by having them give numbers instead of answers.

My suggestion is to use whatever little time you have getting jurors talking. If you’re a plaintiff’s attorney, you probably want to focus on tort reform and just get them spouting off about frivolous lawsuits and greedy attorneys. Let them see you listening and thanking them for their answers. They will feel a whole lot better about you if you spend your 15 minutes with them asking questions and facilitating a dialogue than giving scaled answers. That’s not to say that you can’t use one or two scaled questions within the discussion or ask a couple of hand raising questions to find out which jurors to start the conversation with, but the main focus should be on getting to know the jurors as people and them seeing that you have an interest in them.

2 Comments

Filed under Voir Dire

2 responses to “What To Do (And Not Do) With Short Voir Dire Time

  1. Richard Matthews

    Privileging Likability above all else, as the post sure seems to suggest, is a provably bad strategy. There are studies that show a lack of correlation between attorney likability and verdict. However, leaving a juror on the panel who holds worldviews that are devastating to my side — simply because I did not detect those views with some fairly straightforward tools — can result in a loss for sure.
    The post presents a false choice: scaled questions OR building rapport/enhancing likability. A warm tone and an apology for having to use this stilted method will help likability. Assuming a 15-minute time limit (barbaric but not rare), I would suggest 5 well selected scale questions (even-numbered scales to force some sort of differentiating data), this should still leave time for brief and well-managed follow-up that gets a few of them talking and possibly reveal the leaders. So you get some of the benefits of both approaches.
    But I think just using the precious 15 minutes to get them talking is a needlessly dangerous game of informational Russian roulette– you MIGHT find out some information about jurors that could ruin/help your case, but you really, really, really might not. Privileging likability over getting some basic crucial juror information is both folly and a false choice.

    • Rich,

      Thank you for the comment. I will have to agree to disagree with you on this. People who have gone into depth on the Reptile approach understand why I say what I do but I am not allowed to share any more detail in an open forum such as this blog. I also don’t say not to use ANY scaled questions, just a few to get people started. I don’t say to forget about attitudes – only that I don’t believe true attitudes can be found without follow up. I hope you are well.

      Jessica

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