March 7, 2016
Group voir dire is the most challenging format for questioning jurors and getting them to respond honestly and candidly. However, it is not hopeless. Over the course of this year, I will present a series of short tips on how you can conduct group voir dire more effectively and get the most out of this format. I will address 10 tips using both blog posts and companion short, two-minute videos (check out the introduction here). The tips will address the following topics:
Tip 1: Adopting the Proper Orientation for the Voir Dire Setting. Whether you are questioning 6, 12, 20, or 40+ potential jurors, your approach to voir dire questioning—your orientation—plays a key role in how effective you will be. Approaching the questioning process as a job interview, an interrogation, or a conversation determines how the jurors will respond to your questions and how useful their answers will be. Choose wisely—and be confident.
Tip 2: Getting Jurors to Talk from the Start. Voir dire can be an intimidating situation for the attorney—but just think what it is like for the potential juror. Answering questions, often of a personal nature, in open court, in front of their fellow jurors, the judge, attorneys, and even the media can make anyone nervous and reluctant to talk. But talk they must if we are to have a useful voir dire. Using the initial background method of having jurors answer five background questions is one way to help jurors feel more comfortable in speaking at the beginning of voir dire.
Tip 3: Capitalize on Initial Hand-Raising. One of the basic ways jurors provide responses in group questioning is by raising their hands. While attorneys rely on jurors to raise their hands, jurors are often reluctant to do so. Using techniques to encourage jurors to raise their hands at the beginning of voir dire (e.g., initial hand-raising) will help jurors feel more comfortable, fostering initial participation and setting the stage for greater participation as voir dire continues.
Tip 4: Capitalize on Open-Ended Questions. Open-ended questions (e.g., “How do you feel about . . . ?” or “What are your thoughts on . . . ?”) can reveal valuable information about jurors that may not surface with closed-ended questions (“Do you agree/believe that . . . ?”). Knowing how and when to use open-ended questions can vastly improve your effectiveness in jury selection.
Tip 5: Avoid the “Looking Good” Bias. The way we ask questions can prime jurors to give a “looking good” answer. In psychology, we call this the socially desirable response bias but in lay terms, it is a “looking good” bias. We all want others to think positively about us, and, in certain situations, we may engage in positive impression management through our answers to questions. Avoiding questions that prime this bias in jurors (e.g., “Do you have any prejudice against . . . ?”) will increase juror honesty and candor in response to your questions.
Tip 6: Crafting the Question with the Bad Answer in Mind. Whether it is through research, past experience, or just common sense, in many jury selections there are certain experiences and opinions about which we can say beforehand that if we heard this from a juror, that juror would be a candidate for a challenge for cause or a peremptory challenge. Conducting effective group voir dire requires us to ask critical questions that will directly uncover the bad answer. You can’t leave it to chance (or the whim of the juror) whether the “bad” answer will spontaneously appear during questioning.
Tip 7: Contrast Important Viewpoints Within the Same Question. A good way to help jurors self-identify on critical issues is to ask some questions where jurors have to choose between two (or more) competing or contrasting values or beliefs. One belief or value is potentially positive for your client and one belief or value is potentially negative for your client. Knowing which side jurors choose—when forced to do so—can be a good indicator of whether they will eventually be “good” or “bad” for your client.
Tip 8: Intersperse Majority Response Questions. Most group voir dire questioning relies on a minority of jurors responding to questions, e.g., “How many of you have been a party to a lawsuit?” or “How many of you have been a victim of a violent crime?” When all questions follow this pattern, jurors become complacent and reluctant to raise their hands when it later becomes time for them to do so. Strategic placement of majority response questions—those questions that require a majority of jurors to raise their hands—will keep jurors active in the box/audience and increase the likelihood that they will raise their hands when future questions require them to do so.
Tip 9: Employ the Springboard Method. Keeping jurors engaged in the voir dire process is a challenge in group voir dire. One approach that fosters engagement involves employing the “springboard method.” Attorneys start by addressing one juror in the group and asking a question on the topic, e.g., lawsuits. Based on the first juror’s answer, a second juror is asked for his/her view. This process of “springboarding” around the group forces the remaining jurors to pay attention and, because all members of the panel may be called upon for an answer, keeps juror participation at a high level.
Tip 10: Don’t Let Jurors Hide. Just because some jurors do not participate in voir dire doesn’t mean that these jurors do not have views or experiences that lead them to have an unfavorable view of your client or a favorable view of your opponent. Failure to ask questions of each juror can lead to disastrous results. Simple techniques like “flipping” a question and asking follow-up questions of those who don’t raise their hands can clearly communicate that you will not let jurors hide.
We will be covering these tips in detail in the months to come. Check out our introductory two-minute video.
For more information on voir dire and jury selection, see Mastering Voir Dire and Jury Selection.