[author: Benjamin Ehrhart]
Thomas Fuller, a 17th Century English historian and clergyman, once said “a fox should not be on the jury at a goose’s trial.” This quote sums up the importance of voir dire and why preparing for it is critical to success at trial. As most of you know, trying a construction case to a jury presents at least two major challenges: navigating jurors’ experiences, both positive and negative, with the construction industry and presenting the case’s technical elements in a manner that lay jurors can digest. Voir dire, the examination of prospective jurors to enable the court and parties to select an impartial jury, is the first and most direct opportunity to meet these challenges and outmaneuver the opposition.
What to Expect
Voir dire is different in every courtroom and, to some extent, every case. In fact, it may be the most unscripted and unpredictable phase of trial. Following pretrial housekeeping matters, the court clerk will invite a group of prospective jurors, representing a cross-section of the local population, into the courtroom (40-plus people).
To begin, the judge makes a brief statement about the importance of jury duty, provides instruction regarding the jurors’ obligations (e.g., not to share information with fellow jurors or others not involved in the case), generally explains what will transpire during voir dire, and then reads a short description of the case. Next, the judge examines jurors to determine whether any jurors have personal hardships or obvious partiality (for example, a family relationship with a party).
Thereafter, each side’s attorney asks questions of the jurors to ferret out biases or ability to be fair as to the case’s particular facts. The plaintiff completes its examination and then the defendant follows. During the examinations, the attorneys will direct questions to both the jury pool as a whole and to individuals. At certain times during voir dire, the attorneys will request that the judge excuse particular jurors “for cause,” meaning they are unfit to serve typically because of bias or partiality but sometimes for competency, such as language barriers. There is no limit as to how many jurors a judge can excuse “for cause.”
In addition, procedural rules allow parties a certain number of “peremptory challenges,” which is the right to remove a juror without any grounds. Each side alternates exercising their preemptory challenges. Once each side uses all of its preemptory challenges or each side passes consecutively, the jury panel is set. The court, the judge, and the case particulars will dictate the time allotted for attorney-juror examinations and the number of peremptory challenges. It is difficult to predict how long voir dire will take—it could last a morning or it could be days.
Why Voir Dire Is Critical to Construction Jury Trials
Voir dire is a critical early phase of trial because parties “weed out” jurors who are not tolerant of the parties’ positions, develop rapport with the jury, and frame the issues.
Weeding Out Jurors – Although voir dire is often referred to as jury selection, it is essentially the process of “deselection.” Many prospective jurors have had some experience with the construction industry, typically in connection with their own homes, and it is the attorney’s job to navigate those experiences in the client’s favor. To deselect effectively, the trial team tries to identify the case’s weaknesses and be on high alert for biases and attitudes that exacerbate those weaknesses. The best way to elicit that “negative information” is to ask open-ended questions. It is not of concern that jurors may air negativity about a side’s position.
Research indicates that people base their opinions and beliefs on a lifetime of their own experiences and not a stranger’s horror story about the contractors involved in their home remodel project, for example. When there is an opportunity, all of the trial team, the lawyers, the clients and other professionals, including a jury consultant, if retained, typically brainstorm about the prospective jurors to decide which jurors to challenge and why.
Effective “deselection” requires understanding what attitudes and biases must be eradicated. Many beliefs and myths about juror behavior and attitudes are just that, myths. Accordingly, often the most reliable way to develop an understanding of attitudes and biases impact the case is through a focus group, where one can observe people’s reactions to the case. There is a misconception that focus groups only make sense for high stakes litigation because of the time and cost, but focus groups are a flexible tool that can be tailored to meet many cases’ complexity and budget.
In addition, jury questionnaires allow a trial team to gather and analyze consistent information about jurors’ demographics, experiences and attitudes efficiently. Jury questionnaires also promote candid answers and encourage more information from shy jurors. Not all judges allow jury questionnaires. To increase the likelihood that the court will use one, attorneys will present a proposed jury questionnaire to the opposition prior to submission to the court offering the opportunity for revisions and additions. In addition, a memorandum to the court describing the benefits of a jury questionnaire, such as saving judicial resources or unearthing particularly sensitive issues, can help win over the judge.
Jury Rapport - Voir dire is the first opportunity for attorneys to make an impression and to build a line of communication with the jury. One of the best ways to make a positive first impression is when the entire team and particularly the attorneys appear competent, relaxed and sincere, having researched the local rules and the judge’s voir dire style in advance so there are no surprises.
Second, the attorneys listen carefully to jurors’ answers, both what they say and how they say it—what body language they use. Voir dire is a prime opportunity for an attorney to demonstrate good listening skills and sincerity, making other jurors willing to speak up and be honest about their experiences, attitudes and opinions. On occasion, some prospective jurors who are willing to share their experiences and opinions monopolize the examination time and the attorney must take action so that the quiet jurors have an opportunity to describe their experiences and opinions.
Third, attorneys who are honest about their cases typically fare better. Artfully disclosing weaknesses in a case during voir dire enhances credibility and diffuses the opponents’ “gotcha” moment at trial. Likewise, attorneys who oversell the case and raise juror expectations but then do not deliver when presenting evidence do a disservice to their clients.
Framing the Case - Although empirical research suggests that attorneys cannot meaningfully pre-condition jurors during voir dire, attorneys know that it is never too early to educate the jury. Voir dire is an excellent time to teach them about relevant building concepts and to win the battle of definitions and concepts. For example, one side may use “moisture infiltration,” while the opponent uses “water infiltration” or “leaks.” Framing the case is also a two-way street in that how jurors answer voir dire questions may provide guidance to the attorneys as to how technical they should be during trial.
Voir dire strains even the most brilliant trial lawyers' mental acuity because it requires simultaneously memorizing names, asking thoughtful questions, absorbing answers, prioritizing jurors, and tactfully introducing the case. A client in tune with the process and aware of the objectives can be a major asset in providing input about the prospective jurors.