As it is in life, it is with juries: "You can’t always get what you want."¹

Yet, it is the task of the trial lawyer, through voir dire, to get what she needs – the best possible jury to hear her client’s case.

Many trial lawyers will agree that voir dire is among the most important and most intimidating parts of any trial. With limited time, the lawyer has to meet, question, and assess the biases of at least 25 total strangers, and ultimately place the case in the hands of those strangers.

Countless articles and books have been written on the subject of voir dire.² But who needs to read a whole book when you have the State Bar Litigation Section Blog at your fingertips? (You’re welcome.)

What Is the Purpose of Voir Dire?

Voir dire culminates in the empanelment of the jury to hear your client’s case. But that happens less through selection and more through deselection. In voir dire, attorneys do not actually select their desirable jurors, but rather identify and eliminate their undesirable jurors. This is done by assessing bias.

But, the lawyer who uses voir dire only to assess jurors’ bias misses other invaluable opportunities. Voir dire should also be used to:

• introduce the jurors to your client and your case;

• introduce the jurors to the applicable law of your case; and

• establish credibility and rapport with the jurors.

Discovering Biases of Prospective Jurors
Knowing exactly how to uncover bias is the challenge of voir dire. Here are some practical tips:

• assure the panel there are no right or wrong answers and that you are only seeking to learn about their views – not promote, judge, challenge, or change them;

• acknowledge that the process is awkward and that discussing personal views with a bunch of strangers (usually reserved for networking and speed dating events) is uncomfortable, yet necessary, to find the jury best suited to hear the evidence;

• ask open-ended questions;

• listen to the answers; and

• follow up.

Instead of an interview, treat voir dire like a conversation. Move away from the podium if allowed. Use jurors’ names in addition to numbers.

Allow an answering juror the time he or she needs. Be respectful and attentive, and offer as much opportunity to expound as necessary. Statements like, “Tell me more,” or “What else?” or “What makes you say that that?” should follow just about every answer.

Refrain from challenging a view shared by a juror. You are not there to change jurors’ minds. Other jurors will shy away from sharing honestly if they see you on the offensive with one of their fellow panelists.

Every time you move on from a discussion with a juror – regardless of how you felt about his or her answer – say, “Thank you,” or “I appreciate you sharing that.”

If, in the course of an answer, a potential juror brings up a bias or opinion you fear, do not shy away from follow-up questions. Let that juror answer fully, thank him or her, and then use the opportunity to ask, “Does anyone else feel that way?” You want biases – particularly the ones most harmful to your case – to come out during voir dire, not during deliberation.

Introduce the Jurors to Your Client and Your Case
Often, before the attorneys begin voir dire, the judge provides the panel with a brief description of the case. But the lawyer should also use voir dire to introduce the jurors to the client and key concepts of the case.

When introducing your client, know the judge’s rules about using first names; if allowable, refer to your client by first name to create rapport.

You should also use voir dire to introduce negative information about your client – whether it pertains directly to the case or simply bears on his or her likeability and credibility.

You may also want to discuss other key aspects of your case. If, for example, your case is a car accident that happened at a particularly treacherous intersection, you may want to ask the jurors if they are familiar with the intersection, and then use their responses to inject pieces of your theory into the discussion. While this line of questioning might not result in the identification of jurors to strike, it lets you educate the jurors and direct their attention to concepts you will present once trial begins.

Introduce the Jurors to the Applicable Law of Your Case
Whatever legal concepts may be at work in your case, use voir dire to introduce them and educate the jury on how the concept applies to the case they will hear.

As you explain legal concepts, use plain language and steer clear of terms of art. For example:

Establish Credibility and Rapport with the Jurors
Voir dire is your only opportunity to interact directly with your jurors. Use the process to establish credibility and rapport. If possible, have someone else present to take notes, so that you can maintain eye contact, nod, and truly listen to jurors’ answers. Don’t be afraid of opportunities to break tension or provide levity.

If you encounter a juror who is rude or combative, maintain composure. Refrain from negative or defensive reactions. If you encounter a juror who is upset or emotional when offering an answer, show respect and genuine concern.

As you present concepts or glimpses of evidence, be absolutely sure you will keep any promises you make to the jurors. If you promise during voir dire to show them a piece of evidence and fail at trial to do so, your credibility is lost, and jurors will remember that when you ask them to adopt your client’s view of the case.

Additionally, be respectful of opposing counsel and parties. A tense environment with animosity between counsel will not foster the environment of openness you want in voir dire.

Selecting the Jury by Deselecting Jurors

Potential jurors may be eliminated from the pool by either strikes for cause or peremptory strikes.

Strikes for cause are based upon a juror’s statutory bias, objective bias, or subjective bias. Statutory bias is defined in Wis. Stat. section 805.08(1), and is the easiest to establish.

Statutory bias is present where a juror is:

• related by blood, marriage or adoption to any party or attorney;

• has any financial interest in the case; or

• “has expressed or formed any opinion, or is aware of any bias or prejudice in the case.”

Objective and subjective biases are less clear-cut, and are determined by the court’s assessment of a prospective juror’s responses throughout the voir dire process.

Objective bias is established when a juror’s responses satisfy the court that a reasonable person in the juror’s positon could not be impartial.³ The question of objective bias does not consider the particular juror’s state of mind, but rather the expectation of how a reasonable person in his position would fare.

Subjective bias, on the other hand, does consider the particular juror’s state of mind, as revealed during questioning of voir dire.⁴

The court will also allow each party or side a certain number of peremptory strikes,⁵ which can be exercised for essentially any reason – and that reason need not be disclosed. There is, however, a prohibition on striking jurors based solely upon race or gender.⁶

In deciding how to exercise peremptory challenges, you may consider any of the following with respect to the juror: education; employment; socio-economic status; marital status and family makeup; age/generation; military service; religion (particularly insofar as some religions prohibit followers from passing judgment on others); political affiliations; society memberships (e.g., charitable organizations, issue organizations, etc.); community involvement; previous jury experience; and personal involvement in the judicial process.

There is no perfect science in exercising strikes. Conventional wisdom, for example, holds that liberals/Democrats tend to award higher money damages than conservatives/Republicans. The actual truth of that conventional wisdom was the subject of an article in Wisconsin Lawyer magazine.⁷

Jurors’ appropriateness for your case is best ascertained by reflecting on their overall answers and demeanor throughout voir dire as a whole, versus any single factor. Consider the juror’s openness and engagement with the process; facial expressions, body language and physical demeanor; mood/affect; apparent honesty; comprehension of concepts you introduced; and display of leadership abilities.

Where to Find Out More

If you have read this far and are thinking “MORE, I NEED MORE,” you are in luck.

A superb panel of four attorneys and one judge will offer practical tips on both voir dire and opening statements at this year’s State Bar Annual Meeting & Convention. Join the Litigation Section on Friday, June 14, 2019, at the Hyatt Regency & Convention Center in Green Bay.

See you there.

Endnotes

¹ Song by Mick Jagger & Keith Richards, 1969.

² See, for example:

• Jeffrey Frederick, Ph.D, Mastering Voir Dire and Jury Selection, 4^th Ed. (2019);
• Herbert J. Stern, Trying Cases To Win: Voir Dire & Opening Argument (2013);
• Gerry Spence, Win Your Case: How to Present, Persuade, and Prevail – Every Place, Every Time (2006).

³ See State v. Faucher, 227 Wis. 2d 700, ¶ 29, 596 N.W.2d 770 (1999)

⁴ Id. ¶27

⁵ Wis. Stat. section 805.08(3) provides:

Peremptory challenges. Each party shall be entitled to 3 peremptory challenges which shall be exercised alternately, the plaintiff beginning; and when any party declines to challenge in turn, the challenge shall be made by the clerk by lot. The parties to the action shall be deemed 2, all plaintiffs being one party and all defendants being the other party, except that in a case where 2 or more defendants have adverse interests, the court, if satisfied that the due protection of their interests so requires, in its discretion, may allow peremptory challenges to the defendant or defendants on each side of the adverse interests, not to exceed 3. Each side shall be entitled to one peremptory challenge in addition to those otherwise allowed by law if additional jurors are to be selected under sub. (2).

⁶ Batson v. Kentucky, 476 U.S. 79, 84-86, 106 S.Ct. 1712 (1986)

⁷ Alan Tuerkheimer, "Politics in Civil Jury Selection", Wisconsin Lawyer, December 2008.