Make Limited Time For Voir Dire CountAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 84, No. 12 (DECEMBER 1998), pp. 66-67Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840568 .

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BY JAMES W. McELHANEY

Lawyers are losing voir dire. Most federal District Court judges no longer let the lawyers ask poten tial jurors any questions?they do it all themselves.

Oh, you can suggest appropri ate lines of inquiry. But you aren't going to ask the questions and you aren't going to be able to see how the jurors respond to you.

Some state courts have been

cutting back on lawyer participa tion injury selection, too. In a num ber of jurisdictions, the long hours or even days of jury interrogation are largely gone.

When you conduct a voir dire in a civil case in some jurisdictions, it may be limited to a half-hour or an hour per side?sometimes less.

That's the old news. What's new is that some law

James W. McElhaney is Joseph C. Hosteller Professor of Trial Prac tice and Advocacy at Case Western

Reserve University School of Law in Cleveland. He is a senior editor and columnist for Litigation, the journal of the aba Section of Litigation.

yers are learning to accomplish a lot in their limited time. And while reduced time for voir dire is becom ing more common, interestingly, it is also creating a new pressure on fed eral courts to permit lawyers to do some voir dire themselves. After all, what is so wrong with the lawyers asking some questions ifit does not take too long?

The result is that more feder al judges are "experimenting" with letting lawyers conduct part of the voir dire again, and finding it's work able.

While lawyers grumble about reduced time, most admit that even a half-hour is better than nothing, so long as they know how to take advantage of it.

Throw Away Your Clipboard The "laboratory system" of voir

dire was based on the notion that you could get a perfect jury with ob jective information. The trick was to put together a checklist that would spot the right combinations of social, economic, educational and religious factors that would predis pose a juror to vote your way. This factual checklist was often coupled with a series of generalized and

largely useless "test questions." This whole approach naturally

led to a "grab your clipboard; it's time to check on what's growing in all the petri dishes" mentality. The

lawyer would stand in front of the

panel, going through the same in terminable list of questions?one juror at a time.

Checking off the questions on the clipboard, taking notes during each interrogation, and avoiding eye contact with any of the panel

members helped complete the image of complete indifference.

Of course, demographic infor mation can be helpful. But you get most of what you need from the jury list and a well-planned ques tionnaire that every panel member fills out before voir dire begins. There is no need to treat everybody like laboratory specimens to get good background information, and lawyers only make it worse when

they try to use voir dire to program the jury into reaching the "right" conclusion.

Suppose a prosecutor started jury selection like some motivation al speaker. But instead of calling out, "How do you feel?"?to which everyone is supposed to yell back,

66 ABA JOURNAL / DECEMBER 1998 ILLUSTRATION BY JOHN SCHMELZER

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tfeel great!"?the prosecutor says, "Folks, we have a major felony case this morning. Murder One. And just to make sure you are all in the right mood, let me hear everyone say, 'Guilty!'

"

And after a half-hearted response, the prosecutor says,

"Come on, everybody, you can lo better than that. All together low?one, two, three: Guilty!"

How far do you think this vould get before the judicial hook vould reach out and pull the hap ess prosecutor to the bench?

Of course the purpose of that ixercise would be to make the ju rors feel comfortable convicting ihe defendant by getting them ?sed to saying "guilty."

Which is exactly what prose ttore try to do when they ask ?very potential juror long series of questions like:

"Mr. Litton, will you be able to return a verdict of guilty against the defendant if that is the appro priate determination?"

"Yes."

"And, Mr. Litton, if the state proves that the defendant is guilty of the crime of murder beyond a reasonable doubt, what will your verdict be?"

"Guilty." A sermonette and long strings

of questions will not change how anybody feels about basic issues. Even if they seem to go along with you, they will not reject their per sonal opinions. They will keep their opinions and reject you.

Don't Argue the Case Too Soon Arguing your case before the

jury panel members even know what it's about triggers genuine sales resistance. So does trying to push the jurors into making com mitments about how they are going to decide the case.

When you are picking a jury, they are picking a lawyer, a guide, someone they can trust to lead them through the thicket of the facts of the case. If you argue the case before they know what it's about or try to get promises from them to deliver a particular verdict, they're going to think you are some kind of street corner huckster who is trying to sell them phony Rolex watches

"OK, OK," you say. "If all the old techniques have problems, what is worth doing?" Try listening.

There are so many things we

think we should accomplish in voir dire, it is almost an irresistible im pulse to do all the talking?espe cially when we only have a half hour.

That is a serious mistake. You have two opportunities to

listen to the jury: in voir dire and when the jury delivers its verdict. The time to find out how they feel about the case is at the start of the trial, not the end.

That means you should listen more than you talk in voir dire. And the less time you have, the mor? of it should be spent listening. Closed ended, leading questions are f?r cross-examination, not voir dire.

Like Michael E. Tigar of Wash ington, D.C., a past chair of the aba Section of Litigation, says, "Jury se lection is not about you. It's about the juror to whom you are speak ing. That covers a lot of territory. One of the things it means is you have to be interested in that juror as a person, to look into and care about the things that juror cares about."

Of course, you have ideas?and maybe a jury study or two?about the attitudes and opinions you should be listening for. But that is not all. You are going to be mak ing an important presentation to

people you don't know. Not only do you need to find out how they feel about the issues in your case but also how they learn, because that is what you want them to do: Learn the facts in your case.

For David Malone of Vena ble, Baetjer, Howard & Civiletti in

Washington, D.C., one of the most important things to look for is how the different jurors learn. Are they more creative or more logic al? Would they rather look at a

graph or read a book? What maga zines do they read? What kind of entertainment do they enjoy? What kind of games do they like to play? Things like that can provide clues to how they learn.

Michael L. Slack of Slack & Da vis in Austin, Texas, likes to use

Utfiharoy on Cross present a

telecQftifereflce seminar on cross ex^nkation techniques on Dec. 15. Tojfegister for this program

Section of litigation, ;v'.iu|^^^3{^'^^^|j^t -^r^f^?tti^Ci^ Services at 80O

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something he calls "controlled exor cism" as part of what he does on voir dire. The idea is to encourage the jurors to talk about their hos tile feelings concerning lawyers, lawsuits, personal injury cases and claims against manufacturers?or whatever is involved in the case

right in front of everybody. ? lot of people come to court

with more than preconceived posi tions?they have agendas?and you need to know who they are. You are not likely to find out if you tell them you disapprove of their ideas when you start talking.

Break the Ice When time is short, you've got

to get the jury talking right away. But how can you get people to open up without taking a lot of time?

First, if you want them to be honest and open with you, you've got to be honest and open with them. Share your, concerns about the most important, most danger ous questions in your case. Remem ber: better now than later.

How you tap those attitudes makes all the difference. The peo ple on the panel are naturally more interested in themselves than they are in you and your client. So ask them about things they can relate to in their own lives?and weave bits and pieces from your case into the discussion.

Randi McGinn of Albuquerque, N.M., was representing a woman

charged with shaking a child to death. McGinn started out voir dire by saying, "When they read the charges, I saw the looks on your faces?and some of you looked at my client with hatred. I can under stand that. This is a horrible crime.

"But you need to know that this woman didn't do it. So I want to start out with a basic question: Has any one of you ever been un

fairly accused? Gotten blamed for something you didn't do?"

One of the jurors, a 68-year-old woman, raised her hand during the discussion and said that when she was 8 years old, she found a ring in the street and took it home. Her mother thought she stole it and didn't believe her even when she showed her mother where she found it. The juror said, "She thought I was a thief until the day she died. You have no idea how

much that hurt." You're right. Randi's client was

acquitted.

ABA JOURNAL / DECEMBER 1998 67

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