VOIR DIRE FROM THE DEFENSE PERSPECTIVE JAMES C. MORROW MORROW, WILLNAUER & KLOSTERMAN, L.L.C

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1 VOIR DIRE FROM THE DEFENSE PERSPECTIVE BY JAMES C. MORROW MORROW, WILLNAUER & KLOSTERMAN, L.L.C

2 You have been sitting in your chair at counsel table for a good part of the day, perhaps making an occasional objection, perhaps not, and if plaintiff s counsel has done their job in Voir Dire, they have not only explained the issues and argued their case, they are probably winning the case before you ever get a chance to utter a word or ask a single question in Voir Dire. As such, Voir Dire, from the defense prospective, is your opportunity and, in fact, responsibility to attempt to level the playing field. If you are unsuccessful in doing that, plaintiff s opening statement, coupled with a strong Voir Dire, will render the rest of the case virtually meaningless. Voir Dire, in the estimation of many attorneys, is by far the most important, yet nervewracking, aspect to any trial. Its importance is well-known and well-documented. It is the first opportunity for an attorney to present both himself or herself and his or her client and their client s cause to the jury. The primacy effect is clearly at work, as well as the desire to make a good first impression. For that reason, the attorney when conducting Voir Dire should make every attempt to run the examination in a smooth and organized manner, although that is often times impossible, especially on the defense side. As James McElhaney wrote in the December 1998 ABA Journal: 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. LISTEN TO THE ANSWERS These words sum up the real purpose of Voir Dire, which is to attempt to elicit information from which an unbiased jury can be selected. Consequently, as the first issue is to obtain such a jury, one must listen to their answers. In order to listen to their answers, one must avoid spending all of the time talking. As lawyers, we find that very difficult at times, but it must be avoided, especially in those situations where Voir Dire is limited (e.g., federal court). When we really listen to the jurors just as we would a witness, we can often hear nuances or subtleties in their speech and in the words that they choose that will lead us to a determination as

3 to whether or not to strike them, even if they appear to be giving answers that are not insightful. For that reason alone, we must ask open ended questions in an effort to get the jurors talking as opposed to just trying to get them to agree with propositions that we are putting forth. It is for that reason that I use an outline style for Voir Dire rather than specific questions. It allows me more flexibility and more off the cuff style of questions that appear to be more conversational and are designed to elicit discussion with the jurors. A large portion of my work is in defending attorneys in legal malpractice cases. As such, following plaintiff s Voir Dire, the jury s general bias against lawyers who might have made a mistake has generally been reinforced. Often times, we have jurors who respond that lawyers should not make mistakes due to the special relationship between lawyers and their clients as well as the amount that clients are paying for legal services. As such, one of my tasks is to show to the jury that lawyers are just like anyone else, and that they make mistakes from time to time. I have enclosed a sample of a portion of an outline dealing with a legal malpractice case in which liability was admitted (Exhibit A ). JUROR SYMPATHY One of the most difficult things to combat in Voir Dire is juror sympathy, especially in a catastrophic case. It is not sufficient to tell the jury that their decision cannot be based on sympathy and then to seek a response that they will not base their decision solely on sympathy. An example that I have used in the past is the heart versus head example. I have attached as Exhibit B a sample of an outline that I used in a catastrophic case with this issue. ARGUMENT We all want to argue our cases in Voir Dire, and I would encourage any person considering Voir Dire to have a healthy bit of argument. To the best of your ability, lay out the case as you believe the evidence will show, and try to get the jurors to understand your viewpoint

4 of the case and, hopefully, to agree with your viewpoint or to let you and the other panel members know that they are in such disagreement that you are able to strike them for cause. One must be cautious, however, not to argue the case too soon. This is more easily accomplished on the defense side after certain issues have been put out before the jury by plaintiff s counsel or, perhaps, by co-defendant s counsel. Nonetheless, arguing the case too soon can have an affect on your own credibility, as the jury may not understand where you are coming from and they may not have a sufficient factual basis to give a committed response to a particular line of questioning. Oftentimes, when arguments come too early, jurors are seen shaking their heads or giving somewhat dumbfounded looks, as they really do not have a sense for why the questions are being asked. Occasionally, you can leave one or two questions hanging and they can then be referred to later in the case and the jury may have an aha moment, but, for the most part, the jury should have a good understanding to the nature of the case before the argument begins. GIVE THE WARTS OF THE CASE With your argument related questions, you will want to be open about the flaws in your case so that you share with the jury your concerns about the most important and dangerous aspects of the case as well as those that are beneficial to your way of thinking. In that way, you can elicit information about the jurors attitudes from a position that is specifically on point with the case, and you will have a much better read for how the jury will respond to your evidence. For example, if you have bad facts or bad pictures to deal with, you should make them known to the jury in Voir Dire. Exhibit C hereto is a portion of an outline dealing with bad pictures from a burn injury case. REHABILITATION One should be cautioned, however, to refrain from attempting to adjust jurors attitudes and biases. Most attitudes and biases are long-standing or deep-rooted. To expect that you as an

5 unknown person and a lawyer will be able to shake the jurors from their beliefs is an exercise in futility. Not only will you fail to change their beliefs, you will loose credibility in the process. That is not to say, however, that you should avoid rehabilitating an adverse juror once cause has arguably been established by plaintiff s counsel. Oftentimes, the establishment of cause on certain juror bias questions can be pervasive, and the jurors may not understand that they have been led to a position that has caused them to indicate a bias against one side or in favor of the other. While you would not want to attempt to change a venire person s deep-seated beliefs, you can work with them to change their understanding of the issues in the case and to perhaps rethink their positions shown in response to previously asked questions. The jurors should be educated to know that while they all may have certain biases and beliefs, all that a fair trial demands and the Court requests is that they be capable of a fair decision based on the evidence and the Court s instructions. Some discussion along the lines of what is required of jurors and what they are not being asked to set aside can be very beneficial before launching into a juror by juror rehabilitation campaign. COMMITMENT It is appropriate for plaintiff s counsel to attempt to ascertain bias or prejudice regarding a juror s potential award of punitive damages if they are an issue in the case. Ashcroft v. Tad Resources Intern., 972 S.W. 2d 502 (Mo. App. 1998). Nonetheless, if plaintiff s counsel attempts to obtain a commitment for a certain amount of damages or for a specific verdict, such an attempt would be improper. Generally, these types of questions walk a fine line, and an appropriate objection can be made so that the jury is aware that plaintiff s counsel is attempting to obtain such a commitment before the jury hears the evidence

6 CONCLUSION In conclusion, you should look at Voir Dire as your chance to involve the jurors in your case and to take them along for the remainder of the trial. You should talk to all of them and try to be as relaxed and conversational as possible. In a nutshell, the following are good rules of jury selection: Make a good first impression your motto should be be prepared. Do not work from questions, but work from your own outline and don t be afraid to ad lib. Set the story, your theme and address key issues (but do not argue too soon). Address your questions to the entire panel, as you never know who will be ending up in the box. On the defense side, rehabilitate your jurors, first in general terms, and then specifically. Never talk down to the jury you are one of them. Give respect to everyone. Be concise: especially for the defense, a number of the issues will have already been covered and jurors respect and like those who are quick to the point, especially if they have been undergoing the examination for a lengthy period of time. Be sincere but do not forget humor (especially directed at yourself. Finally, for jury selection, review the statutes and case law that relate to jury qualifications. See Missouri Revised Statute Section and See also Ray v. Gream, 860 S.W.2d 325 (Mo Banc 1993); Rogers v. B & G Transit Corp, 949 S.W.2d 151 (Mo. App. 1997)

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