The Litigator’s Playbook: Backing into Voir Dire

by Jeri Kagel
Trial Synergy LLC
www.trialsynergy.com

At trial a party in a civil case must do two things with regard to liability:

1. Counter what the other side is saying or implying about its behavior and decisions; and
2. Affirmatively educate the jury from its own perspective about why it did what it did or did not do.

As litigators, countering allegations and affirmatively telling our stories begins during voir dire, unfolds during opening, and is reinforced through witnesses as each tells his or her piece of the story.

Why address our case theme or “story” in a discussion about voir dire?

1. Sometimes voir dire doesn’t work well: time is limited, prospective jurors don’t tell the truth, only those with extreme opinions get struck and we are left with a variety of people on our jury. Having been a trial consultant for a number of years, I have concluded that, as important as jury selection is, so is creating and learning how to most effectively tell our story. We need our story to appeal to the hearts and minds of as many different kinds of people as possible — people who think through decisions as well as people who feel their way through decisions. To that end, our case theme – or “story” – and learning how to tell it effectively – are as important in most civil cases as the intricacies of jury selection.
2. That said, case themes lead us to our juror profiles. What kinds of attitudes or life experiences or ways of making decisions are likely or likely not to resonant with our story? Answering these questions leads to our juror profiles, which helps us to craft our questions for voir dire.

Voir dire: we need to design the kinds of questions, and learn the most effective ways to ask those questions, to find the people who match our juror profiles. (Check out my previous Ms. Manners article!)

An Example: The Interplay between Themes and Voir Dire in a Slip and Fall “Story.”
Typically, slip and fall cases have a general theme concerning safety and responsibility. Plaintiff either implies or says out loud that the defendant does not care about the safety of those who enter his premises, that he either takes no steps to keep people safe or takes incorrect steps. Underlying the plaintiff’s statements is the belief that defendants are responsible for the safety of individuals who come on their property.

The defendant’s theme is that he is not responsible for the plaintiff’s safety either because of what the plaintiff was doing or not doing at the time, or that the defendant cannot guarantee everyone’s safety. Alternatively, the defendant acknowledges he has responsibilities for safety that he undertook, but this accident could happen regardless of what was done.

These slip-and-fall themes offer much to explore on voir dire:

1. What are the potential juror’s general attitudes on how and why accidents happen? What kinds of precautions are reasonable, and do those precautions guarantee everyone’s safety?
2. What kinds of experiences have our potential jurors had with falling and safety issues? Are any of them in charge of safety at their workplace, and if so, what do they do? What options do they consider, and how do they decide when to take action or not?
3. What are the potential jurors’ feelings about how accidents can happen – is it just a matter of bad luck, or is it lack of effort? If so, on whose part? What personal experiences have the panel members had with tripping or slipping? How did it happen?
4. What were they doing? Did they fall when they tripped or slipped? Did they believe it was their own fault or someone else’s fault? Have they seen people fall at the defendant’s location? What was the person who fell doing when she or he fell? Do they think anything could have prevented the fall? If so, what?

In addition to the general themes of safety and responsibility, there are themes unique to our particular fact situation. Whatever stands out – good or bad – in our particular story about our client, the property, someone’s behavior, or the accident’s details, we must uncover potential jurors’ attitudes or beliefs about them.

First, we should uncover facts about the parties, the accident and the property: Is plaintiff young or old? What was s/he doing when the fall happened? Is the defendant a big corporation, a small Mom and Pop business, a government entity? What industry or kind of store is involved here? What about the property itself – was any construction taking place? Circumstances about the accident itself should also be uncovered, such as whether it was dark. Think about facts likely to be highlighted over the course of the trial – and ask voir dire questions that uncover potential jurors’ attitudes on those facts.

Let us not forget issues of sympathy and damages. Many attorneys feel uncomfortable asking questions about money because they don’t want to appear intrusive or greedy (plaintiffs) or cold hearted and seen as admitting liability (defense). But remember that jurors don’t end their deliberations with their decision about who is to blame. Jurors make decisions regarding money! We need to learn about their “relationship” with money and financial matters and how sympathy is likely to color the evidence they will hear. But that’s an article for another day!