Voir Dire: An Overview

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By Thomas J. McDermott, Jr.

V oir dire is your first opportunity to good enough for me.

sell yourself, your client and your 3. Model or profile the jury to your case.
case to the jury. Voir dire, if you can This means, in crude terms, that the plaintiff
get it, should not be wasted. wants nothing but bleeding heart, guilt-ridden
AB a general rule in Southern California, you liberals who recently have been defrauded by
can get voir dire in State Court but not in an insurance company, while the defendant
Federal Court. Federal voir dire, when con- wants all CPA:s.With the advent of today's jury
ducted by the Judge, at best removes the com- think tanks such as Litigation Sciences and
pletely incompetent from the jury. It does Hale Starr & Associates, your juror profile can
nothing to weed out the biased or the preju- be developed to the fine point of a 500-word
diced, much less allow a modeling of the jury Personals advertisement in the Village Voice:
or preconditioning of the jury to your case. e.g., "SWF, into kittens, pasta, long walks and
Most lawyers consider the principal pur- . Bach desires. . ." etc. .
poses of voir dire to be the following: 4. Precondition the jury to your case. At the
1. Eliminate the incompetents from the jury. end of a successful voir dire, the jury should
The defendant's brother is incompetent to sit believe roughly that your client is the salt of
in judgment. the earth and irrationally honest; that the
2. Eliminate the biased or the prejudiced other party is a scum; that the facts are so one-
from the jury. In Irving Younger's words; a sided that the whole trial would be a bore ex-
"biased" person is one irrationally predis- cept for the anticipated pleasure of socking it
posed in favor of something, while a "preju-
diced" person is one irrationally predisposed
............................
Thomas J McDermott, Jr. practices with Rogers
against something. The dictionary does not & Wells in Los Angeles. He wishes to ackmouiledqe
necessarily support this distinction, but if it the contribution of Mark Selig, also of Rogers &
was good enough for Professor Younger, it's Wells.

8
 to the other party with the verdict; and that
you, the trial lawyer, are a decent person, not
too bright, but who cares since the facts are
all on your side anyway.
There is continuing tension between the
bench, who generally feel that only one and
two above (getting rid of the incompetent, the
biased and the prejudiced) are proper, and the
trial lawyer, who wants one, two, three and
four and would invite the jurors over for
cocktails if he could get away with it. There
is, to my knowledge, no conventional wisdom
or rule of law or ethics to resolve this
dichotomy (although there is some literature
to the effect that attempting to tell your story
to the jury may be unethical). The trial lawyer
is designated an advocate and, in my opinion,
should push to accomplish all four. The judge
must make the system work and cannot allow
unfettered voir dire or we might never get to
the trial itself.
You cannot have a meaningful voir dire
unless you ask the questions. Forget Federal
Court. (As with anything, there are certain
minor exceptions to this.) You can't hope to
weed out the biased or the prejudiced or to
profile the jury unless you get the jurors talk-
ing. This requires your use of open-ended
questions, those where the jurors must express
an opinion and not just answer' 'Yes" or "No."
Therefore, getting a free dialogue, a conver-
sation, if you will, with the juror is important.
On the other hand, you cannot precondition
the jury to your case unless you tell your story.
This requires some talking by you. Balance
between these two opposing concepts is
necessary.
There are two items that seem so obvious
to me but are often not allowed. First, it makes
no sense to attempt to empanel a jury that
knows nothing about the facts. Lawyers should
be allowed to explain their case in broad terms
and to ask specific questions about aspects of
their case. The statement usually given by a
judge - "This is a breach of contract case bet-
ween the plaintiff ABC Company and the
defendant XYZCompany" - simply does not
help.
Second, it is rude to ask a total stranger a
series of personal questions, which is what voir
dire is. To ameliorate this, the lawyer should
be allowed to introduce himself or herself and
provide some personal information. The juror
, Getting a free dialogue,
a conversation if you
,
will, with the juror
is important.
does not want to hear that you went to Har-
vard Law School, but will be interested to
know if you are married, if you have children,
and other semi-personal items such as that.
Officially,voir dire is a formal selection proc-
ess by which the trial counsel and the court
are given the opportunity to converse with and
question a number of randomly selected in-
dividuals. The process of voir dire varies
among jurisdictions but [mal decisions as to
the specific procedures are usually within the
trial judge's discretion. The purpose of voir dire
is to provide counsel and the court with an
opportunity to question and evaluate poten-
tial jurors for possible prejudice and bias which
may interfere with a fair consideration of the
evidence. Once a prospective juror has been
questioned. he or she may be excused for
cause, counsel may exercise a peremptory
challenge, or counsel may elect to accept the
individual on the jury. The ultimate goal of voir
dire, ideally, is to empanel an impartial jury.
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 "Our research shows that 50% of all jurors decide a case
after opening statement. Since I just finished mine, those of
you who feel my client is innocent please raise your hands."

As an advocate, however, your function dur-
ing the jury selection process is both clear and
simple: you want to .select the jury that will
be reasonably fair, is favorablydisposed to you,
your client, and your case, and will ultimate-
ly return a favorable verdict. Your opponent,
of course, while also looking for a jury that has
an open mind about the case, is looking for
a jury that will react favorably to him, his
client and his case.
The bench and bar each have a different
perspective of voir dire practice. Court deci-
sions, dicta, and the general literature indicate
that much of the judiciary objects to attorney
abuse of the probative and explicative pur-
poses of voir dire. Instead, the judges com-
plain, lawyers use the examination to gain
adversarial advantage. The Judicial Conference
of the United States predicts the following:
(1) Attorneys will strive to convert voir dire
into a search for partial rather than impartial
jurors; (2) attorneys will use voir dire to ad-
vocate their cases, offer instructions on the
law, and influence prospective jurors;
(3) prospective jurors may be exposed to
"abusive, unfair and unnecessary voir dire
questions' ': (4) voir dire will consume more
time, contributing to court backlogs.
California Superior Court Judge Ronald
George said that the California law permitting
reasonable attorney voir dire has resulted in
lengthy juror questioning. ''As the judge in the
two-year long Hillside Strangler trial, I found
it rather disconcerting to be congratulated by
some of my judicial colleagues for taking only
54 court days to select a jury, a shorter period
than was anticipated given the complexities
of jury selection under California procedure.' '

10.~· _
- Scope and Conduct of Voir Dire-
There are several methods by which courts
conduct the jury voir dire examination. The
style of voir dire can vary in terms of lww
questions are put to the potential jurors and
uiho asks the questions. Depending on the
jurisdiction, the judge, or even the type of case
involved, potential jurors may be questioned
either in a group or individually or a combina-
tion of both. The questions posed to jurors
may corne from the judge, attorneys, or a com-
bination of the two. There are, nevertheless,
three principal methods by which prospective
jurors are examined.
The procedure for jury selection in federal
courts is set out in the Federal Rules of Civil
Procedure. Rule 47 provides as follows:
E::camination oj Jurors. The court may
permit the parties or their attorneys to
conduct the examination of prospective
jurors or may itself conduct the examina-
tion. In the latter event, the court shall
permit the parties or their attorneys to
supplement the examination by such fur-
ther inquiry as it deems proper or shall
itself submit to the prospective jurors
such additional questions of the parties
or their attorneys as it deems proper.
Rule 47 gives the trial judge wide discretion
as to the scope and conduct of voir dire. The
rule has been given a liberal interpretation by
the courts. Some federal trial court judges in
the complete exercise of that discretion insist
on doing the voir dire to the exclusion of
counsel.
This procedure has been condemned by
courts which acknowledge that voir dire in
both civil and criminal cases has little mean-
ing if it is not conducted by counsel for the
parties. The American Bar Association's stan-
dards for trial courts state that:
A judge cannot have the same grasp of
the facts, the complexities and nuances
as the trial attorneys entrusted with the
preparation of the case. The court does
not know the strengths and weaknesses
of each litigant's case. Justice requires
that each lawyer be given an opportuni-
ty to ferret out possible bias and pre-
judice of which the juror himself may be
unaware until certain facts are revealed.
The procedure for jury selection in most
state courts allows counsel to conduct voir dire
and cover all relevant and material matters
that might bear on the possible disqualifica-
tion of a potential juror. The trial judge has
the power to exercise "broad discretion" with
reference to the scope of the inquiry of and
concerning prospective jurors. The court will
usually ask the jurors some preliminary ques-
tions to determine if any jurors clearly can be
excused for cause. After asking these ques-
tions, the court will generally turn the ex-
amination over to counsel, after advising the
jury that questions asked by counsel, though
seeming to be personal in some respects, are
not meant to be and are asked for the purpose
of ascertaining whether any person on the jury
panel has any feelings or background that
, The juror does not want
to hear that you went
to Harvard ...
,
would be prejudicial to one of the parties to
the litigation.
The voir dire should have no time limita-
tion. The trial judge, however, may seek to ex-
pedite the jury selection process by directing
that some questions be put to the jury as a
group and some to the individual jurors.
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 Some courts incorporate elements of both who on the panel will be imperceptive,
the Federal and State court systems. The trial unintelligent, unreceptive to your case, while
judge generally asks preliminary questions of looking to retain the more intelligent, unbiased
all potential jurors, followed by questioning of members of the panel who will, by reason of
.one or all jurors individually. After the court their background, experience or temperament,
has completed its examination, the court favor your client's view in the controversy.
allows counsel to probe (usually within time
limitations) further into the background of any - Specific Purposes of Voir Dire-
of the potential jurors. A. Impart Information to the Jury. The use
of voir dire to develop the theme of your case
is essential. What is the selling point of the
case? What is the salient reason why a ver-
dict should be returned for your client? Pro-
, Rule 47 gives the perly formed questions can impart the client's
story in a favorable light to potential jurors.
trial judge wide Many judges report that lawyers use up to
80% of the voir dire time trying to indoctrinate
the jurors. Judge Witman Knapp of New York
discretion as to voices a common bench attitude. "The vice
[of attorney participation] is that voir dire is
used to condition jurors, not to select jurors.
the scope and Accordingly, many states give trial judges
the authority to bar questions that "indoc-
conduct of voir dire. ' trinate" or "prejudice" prospective jurors. Not-
withstanding the apparent proscription, trial
advocacy manuals frequently urge lawyers to
capitalize on voir dire as an opportunity to in-
fluence jurors.
- Purpose of Voir Dire- B. Discovery of Adverse Bias and Hidden
The functions and purposes of voir dire of Attitudes. The opportunity to question jurors
the potential jury are numerous. First of all, about their backgrounds to discover any
the purpose of voir dire is to discover the juror adverse bias, hidden attitudes, preconceived
that has no biases, prejudices, notions or notions, ideas or formed opinions is given so
thoughts that are contrary to any of the posi- that you may secure the information necessary
tions you have on either the law or the facts to exercise challenges for cause or peremptory
of the litigation at hand. Hence, the function challenges. As plaintiff's counsel in a malprac-
of voir dire is to get information from the juror, tice action, for example, you do not want a
to know how the juror thinks. The voir dire. doctor or his or her spouse sitting on the jury.
is used to question jurors about their back- Limitations on the scope of voir dire inhibit
ground. The information gained gives counsel the right to the intelligent exercise of peremp-
some idea about the juror's receptivity to tory challenges, the importance of which has
counsel's case. The juror's occupation, educa- always been recognized by the courts. It is the
tion, residence, and even the book he or she trial judge's duty to ensure that the jury is im-
brings to the courtroom indicate a lot about partial; without adequate voir dire this duty
the person. The voir dire is used to discover cannot be discharged.

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 C. FSychology oj the Case. From the moment
you step into the courtroom you are a psy-
chological event to the entire venire of pro-
spective jurors. Jurors watch every move you
make. Jurors observe how you interact with
the court personnel, your client, and anyone
else you talk to. You must put your best foot
forward in all that you do. Youmust be an af-
firmative force in the way you act and in what
you say when voir dire commences. Youmust
plan voir dire examination to be a persuasive
psychological event for the jury. In doing so,
three things are essential:
1. Establish CredilYility with the Jurors. Per-
sonal credibility with the jurors is of utmost
importance. If the jurors do not like you, it will
be harder for them to believe in your client's
case. There is no question that you can
enhance your credibility by the way you act,
dress, conduct yourself, and by demonstrating
, The use of voir
dire to develop the
theme of your case
. eseeniia. 1 . '
IS
during voir dire that you have done your
homework. By establishing your credibility,
you give credibility to your case. You should
not exaggerate the case. If you understate and
. underplay, you will gain the admiration and
respect of the jury, which will rub off on your
case.
2. Be Sincere. There is no substitute for
sincerity. You should not be a phony. You
should tell it like it is to the jury, who will see
it and understand it. Sincerity wins. Youobvi-
ously want the jurors to like you and hope you
will like the jurors. If you feel you like a juror,
it is probable the juror likes you. This is
something you can sense. Certainly you are
more persuasive to people you like. Or to put
it another way, people who naturally like you
are more likely to be of your persuasion, more
likely to listen to you, and more likely to follow
,
your direction.
Jurors watch
every move
you make.
,
3. Establish a Rapport. The first contact the
actual jurors have with you is during voir dire.
Building a rapport with the jurors is essential
to the effective presentation of any case. While
often overlooked by many trial attorneys, the
jurors are ordinary people. They want to
understand what has happened in the case,
they want to do what is right, and they want
to trust you. Jurors must feel like they are your
friend, your confidant. Jurors need not always
be your best friend, but they need to feel com-
fortable with you. Voir dire is an excellent op-
portunity to set the jurors, who themselves are
extremely nervous, at ease. The jurors will ap-
preciate it, and your case will benefit from it.
Until the "perfect" method of voir dire is
discovered, the tension between the various
views on voir dire must be accepted. The
courts' concern with speed and efficiency
must be outweighed by trial counsels' pursuit
of the' 'impartial jury"; the adversarial system
dictates nothing less.
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