Vol. 79, No. 11, November
Persuading Jurors during voir dire
Knowing when and how to persuade jurors during voir dire is a matter
of striking a balance between open-ended questions and advocacy-focused
questions, proper timing, and letting the jurors talk.
by Alan M. Tuerkheimer
t's time for voir dire, but is anybody listening? Are jurors
listening to attorneys? Are attorneys listening to jurors? More often
than not the answer is "no." Regardless of case type or jurisdiction,
jurors are checking out. Their attention spans are flatlining during a
crucial phase of trial - voir dire.
At a critical time, when jurors need to be particularly focused and
engaged, they are losing focus and disengaging. Why is this happening?
The reasons are varied and the problem is serious.
Sometimes, jurors are put off by an attorney's combative style or
demeanor. Other times jurors are confused by awkwardly worded questions
they do not understand, or by attorneys who seem more concerned with
their next question than with listening to jurors as they respond to the
question at hand.
Ironically, it is during voir dire that attorneys have their best
chance to bond with the panel. Even if the jury selection is effective,
it is during these early stages of voir dire that jurors are forming
first impressions, and attorneys will never have another opportunity to
make first impressions. A successful jury selection is one that
identifies those jurors who will be negatively disposed to your case and
impanels (if the other side does not do its homework or does not do it
diligently) those jurors who will argue your case in deliberations.
Alan M. Tuerkheimer, U.W. 2000, is a trial consultant with Zagnoli
McEvoy Foley LLC, Chicago, and is licensed to practice law in Wisconsin.
He can be reached at com atuerkheimer zmf zmf atuerkheimer com.
Compounding the problem of jurors tuning out is that most attorneys
say voir dire is their least favorite part of the trial process.
Courtroom lawyers thrive on the adversarial nature of trials and have
learned how to be effective advocates. Achieving success during jury
selection, however, requires a somewhat different approach. Attorneys
need to play by a completely different set of rules if they are going to
conduct a successful voir dire. Combative, aggressive, or argumentative
questions when selecting jurors will not help attorneys connect with the
Getting the Jurors Comfortable
Listening to jurors and getting them to feel comfortable enough to
freely and openly express themselves is the key to success in jury
selection. Jurors do not want to feel as if they are being prompted to
say merely what the attorney wants to hear. The only answer counsel
truly wants to hear during voir dire is an honest one. While persuasion
is an important part of effective jury selection, learning about jurors
through their responses during voir dire is even more important because
jurors will determine your client's fate. Not surprisingly, the most
useful information is gathered when jurors are the ones doing the
talking, and when they are speaking in their own words.
Of course attorneys want jurors to view the case in ways that are
favorable to their client and will attempt to sway the panel to some
degree. The trick is to know when to attempt to persuade the jury and
how to do it effectively. Generally, the use of result-focused questions
should be modest and occupy no more than 25 percent of an attorney's
total time and questions. In turn, since 75 percent of voir dire
questioning will consist of more open-ended, information-gathering
questions, it is imperative to pick and choose the most crucial topics
for persuasion. Attorneys need to decide which questions will be best
suited for influencing jurors because there should always be a finite
amount of such "questioning" in voir dire.
Remind jurors early on that there are no right, wrong, or unimportant
answers, and then commence the open-ended phase of voir dire.
Result-focused questions that are asked at the front end of voir dire
stifle candid responses important to subsequent open-ended questions. It
is during these open-ended conversations that the most information about
the panel is learned in what often is a short time.
Three words should guide attorneys at the beginning of voir dire -
let jurors talk. For example, in a case alleging that a furnace
was negligently constructed so as to result in premature corrosion, the
plaintiff's attorney, rather than ask prospective jurors whether they
agree that a lifetime warranty ought to include labor costs, should ask
jurors what they believe typically accompanies a lifetime warranty. Or,
when talking about tort reform, asking the jurors how many think there
are too many frivolous lawsuits may result in a nearly unanimous show of
hands - except by those few jurors who you, as the plaintiff's attorney,
do not want the other side to identify. You just did the other side's
homework. Instead, try asking, "What distinguishes a frivolous lawsuit
from a legitimate one?" The answers will be telling.
It is important to keep in mind that jurors typically are smarter
than attorneys give them credit for. Jurors often realize as soon as an
attorney asks a question designed to sway them that they are being
forced and frequently manipulated into seeing things a particular way.
This reality may cause a backlash by causing jurors to feel less
inclined to open up and communicate fully with the questioner.
Jurors want to know that the attorney is listening to them talk and
showing interest in what they have to say. They do not want to be
lectured to, especially by someone they have yet to connect with. At the
right time, toward the end of voir dire, once rapport has been
established by using plenty of open-ended questions, lawyers may be able
to pose some questions designed to influence without risk of alienating
the majority of the panel.
Attorneys sometimes have difficulties connecting with jurors, because
jurors may have firmly-held, preconceived opinions on such topics as
tort reform, corporate mendacity, frivolous lawsuits, and the
government's role in regulating corporations, among other interrelated
hot topic litigation issues. These general beliefs help shape how jurors
will view the evidence in the case, so counsel needs to choose which
questions should be asked in open-ended fashion and which questions
would be more effective in the persuasive format later on in the
However you structure voir dire, it is important to not lose sight of
the overarching fact that voir dire is the opportunity to get answers to
questions that will help determine who you do and do not want sitting on
your jury. It also enables you to start framing the case in a
jury-friendly way that is most beneficial to your side.
Set the Tone First
What is the best way to identify and then strike someone from the
jury panel who believes all plaintiffs' lawyers are "money hungry" and
who will not give your client a fair shake and keep an open mind? How do
you identify someone who believes corporations are the root of all evil,
and despite pledges to follow the judge's instructions, will expect your
corporate client to prove it did nothing wrong? How do plaintiffs'
attorneys differentiate, for the jury, between the substance underlying
their client's claims and those "other" frivolous lawsuits? How can
counsel for a company distinguish between its chief executive officer
and those corporate executives seen on the nightly news being dragged
away in handcuffs?
As previously noted, asking open-ended questions is the best way to
get jurors to express themselves candidly, by empowering them to talk
earnestly about their experiences and world views. This is a universal
perspective on jury selection regardless of whether you are working for
the plaintiff or the defense. Therefore, all lawyers should always begin
with the "easy" open-ended questions first. There are no right, wrong,
or unimportant answers to these simpler questions, and this approach
often will yield invaluable information. Additionally, it gets the jury
to open up for subsequent, more penetrating questions. These are by no
means throwaway questions; in fact, they can set the tone for the
remainder of voir dire.
For example, say that an attorney begins the voir dire process by
immediately pressing jurors on how they feel about a paraplegic person's
chances of living a happy life as a result of a horrific accident caused
by an unstable load on a truck. If the attorney is not careful and
sensitive, jurors will (rightfully) check out of the process, harbor
some resentment toward the attorney, and likely not communicate their
true beliefs on this and other subjects delved into later. Warm-up
questions for a case like this might include questions such as:
- Does anyone know someone who is paraplegic?
- How do you know that person?
- What kind of life does this person live? How long has she or he been
Attorneys must not forget that the jurors they are conversing with
are real people, and so genuine expressions of sympathy, or reactions
such as "I am sorry to hear that," will keep jurors listening. If a
juror talks about a car accident and the lawyer doesn't follow up by
asking whether anyone was hurt as a result of the accident, jurors may
conclude that attorneys are self-absorbed and only interested in winning
their case. In addition, long lectures about the importance of jury duty
and citizens' constitutional rights are not recommended.
Plaintiff and defense perspectives differ from this point forward,
because each side is looking at things through a different lens and
playing a different set of cards altogether. However, the proportion and
timing of open-ended versus questions designed to persuade is
Corporate defense counsel often must counteract a picture, painted by
the plaintiff's attorney, of their client as a distant, unconcerned,
profit-driven corporation that will cut corners to save a buck.
Receiving answers to the following open-ended question will go a long
way toward ascertaining crucial information:
- Compared to an individual who has filed a lawsuit, what kind of
standard should the defendant corporation be held to?
Thus, for example, in a recently settled Wisconsin case in which the
defendant was accused of fraudulently overpricing a kit designed to
provide training in automotive mechanics, had the case gone to trial,
defense counsel should have inquired in an open-ended manner about what
constraints, if any, a seller should be under in pricing a product, and
then ask the appropriate follow-up questions.
Or, if your client has received some bad publicity, important
information and credibility can be attained by asking:
- Decisions should be based on the information presented to you here
at trial. Therefore, how would you react if, during deliberations,
someone makes an argument either for or against my client based on
pretrial media coverage?
- How reliable is information you get from television news?
Jurors will provide crucial information in response to these
questions and will become more comfortable and willing to further engage
in conversation. As a result, they likely will candidly answer more
probing questions that follow.
In voir dire, the plaintiff's counsel has an opportunity to begin to
illustrate the contrast between the plaintiff's behavior and that of the
defendant corporation. In many cases in which a defendant corporation
does not admit liability, jurors will put themselves in the plaintiff's
shoes and wonder if what happened to the plaintiff could have happened
to them or someone close to them. Plaintiffs want jurors during
deliberations to be thinking about how what happened to the plaintiff
could have happened to them. To counter, the defense will focus on the
plaintiff, building a psychological barrier around the plaintiff so
jurors do not "connect" and come away thinking what happened to the
plaintiff could have happened to them. Voir dire should be structured
with this perspective in mind. Defense counsel, for example, should ask
jurors about their thoughts on how far a corporation needs to go in
ensuring its product is used in the proper manner, with the hope of
leading jurors to the conclusion that they would not have done what the
plaintiff did or did not do.
Timing is Key
Plaintiffs' lawyers will find dimensions that enable them to
characterize the plaintiff as "any of us." If these questions are the
"key" questions that require persuasion, counsel should be sure the
timing is right to ask these questions. If counsel wants feedback on
these issues but does not feel the jury is ready for these questions, it
is wise to take the more open-ended approach.
- What is a corporation's responsibility to the public at large?
- What can citizens of this county expect when they walk along XX path
near YY River?
In many cases, counsel should ask questions that get a sense of
jurors' global views on personal responsibility.
- Juror 21, have you ever been in a car with someone who was so
careless and so reckless that you thought at the time this person
shouldn't be driving?
Of course the last thing counsel wants to do is appear to blame the
victim, so proper wording is critical to finding the right balance
between planting a seed that will germinate into doubt about the
plaintiff's claims on the one hand, and flat out blaming the plaintiff
for the accident on the other. Plaintiffs' lawyers should ask about
whether, as a consumer, when a company manufactures something, a certain
"margin of misuse" should be factored in. Take the following loaded
question as an example:
- Juror 23, do you believe that a product should be dangerous if it is
properly used for its intended purpose? Why or why not?
The obvious answer is "no," but there will be major differences in
how jurors respond to this question depending on when it is asked in the
voir dire process. If other, more pressing indoctrinating questions are
a higher priority, the information this question provides can be gleaned
early on simply by asking it in a more open-ended way.
It is important to be candid with jurors about damages. Plaintiff and
defense perspectives differ here as well. The defense will want to
receive commitments from jurors that arguing about lesser damages is not
any kind of admission on liability or mean spirited. Jurors should be
told that the client is not negligent and did not cause damage to the
plaintiff, but that if the damages phase is reached, the plaintiff's
amount is unreasonable and here is why.
Plaintiffs' lawyers need to be looking out for something else. Jurors
typically are more comfortable discussing a total damage amount than
determining how much each facet of damages is worth. It becomes
important to explain to jurors how this tendency is understandable but
that fairness requires them to consider each question discretely. Even
if this commitment is ignored during deliberations, the strongest
pro-plaintiff supporters will use it to increase damages.
Overall, because the discussion of damages is something counsel often
wants to "control," an argumentative approach may seem best (and even
most comfortable), but in the end it is not the best approach at all.
Determining juror bias is critical during voir dire, and your use of the
argumentative approach does not let jurors with the greatest amount of
bias against your case reveal it if you are the one doing the talking. A
good open-ended question during this phase is:
- How do you feel about pain and suffering?
Once jurors answer this question and provide insights into their
biases, you may follow with questions, designed to influence, that teach
the jurors about pain and suffering. A supplemental juror questionnaire
is ideal under this circumstance, but attorneys need to fight the urge
to use a supplemental jury questionnaire to teach - it never works and
can even ruin a certain area of inquiry for oral voir dire.
Open-ended questions in a jury questionnaire are ideal for eliciting
candid responses that are windows into juror bias. If lawyers are to
persuade during oral voir dire, the open-ended information from a
questionnaire will pave the way for the argumentative questions to be
No matter what attorneys are told, they will always want to do some
degree of advocating. The challenge is to accept this tendency and then
determine how and when advocating should take place, and when it needs
to take a back seat to the less confrontational approach of asking
jurors open-ended questions. The key is to ask advocacy-focused
questions at the right time, and to follow proper sequencing during the
voir dire process. If the proper balance is struck and attorneys shed
the mold they're accustomed to, the jury will find it easier to tune in,
connect, open up, and talk honestly, and as a result offer the most
useful information needed to make intelligent decisions during jury