Voir Dire: Create Your Own ‘Candor Script’

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As the potential juror sits with the others in the courtroom, the thoughts running through his head might go something like this: “I am being tested on whether I qualify for jury duty…so if that’s what I want, it means giving the right answers…and ‘right’ in this situation means the answers that the judge and the attorneys expect.” Later, when he is asked if he’s able to set aside attitudes and past experiences, the answer is “Absolutely.” Can you be fair? “You bet.” Of course, it is not always a process of conscious dishonesty, and it may be more a case of implicitly going along with questions that seem to be designed to minimize the chances of dissent. Missing from the panel’s perception is the idea that they are supposed to be sharing what they genuinely think. But it is this idea — candor — that is the foundation of effective jury selection.

So a good questioner needs to use their introduction to reframe the situation, and to let those on the panel know that this is a situation that is not about simple compliance, but is all about the honest sharing of views. I call it a “candor script,” and attorneys who have picked more than a couple of juries probably have one that they like to use. Every trial lawyer has a different style, and should know what works within that style. The introduction should be something that suits you, but it is worth giving it some thought and getting it right. After all, it is often your introduction to your future jury, and first impressions count. In this case, the first impression also has to do double duty in creating the conditions for a more honest sharing of views. In this post, I will share some of the elements that should be in any trial lawyer’s introductory candor script.

Create Your Script Based on the Common Elements

Purpose

Reframe the idea of what voir dire is for: It isn’t for weeding out the ‘bad ones,’ it is to maximize the chances of fairness.

This may seem like an unusual process, but it has been used throughout the history of the jury system, and our shared goal in this is to have a fair trial by making sure that no one is starting off with a disadvantage. 

Disclosure

Those in the box may assume that the goal is simply for everyone to agree that they can be fair. Instead, emphasize that the goal is disclosure.

This is the time for you to let us know what you really think. We aren’t just looking for a ‘yes,’ or a ‘no,’ we are looking for your full and honest views and experiences.

Normalizing

Emphasize that relevant experiences or attitudes are normal. If the views and experiences seem like something that are rare or unexpected, jurors are less likely to share.

We all go through life developing experiences and opinions. That is completely normal and completely expected. There is nothing wrong with it. 

No Right Answer

Thinking of it as a ‘test,’ jurors might expect that, for every question, there is a right and a wrong answer. With that perception, answers can be driven more by whether they want to be on the jury than by their candid opinions.

When we ask you questions, there are no correct or incorrect answers. You might think we are looking for a particular answer, but we’re not. The only right answer is your honest answer. 

Self-Disclosure

Finally, as an attorney you might share something about yourself on an issue outside the case. It not only humanizes you but also models the idea of disclosure.

Just the other day, I heard about a different case and I found myself thinking, ‘boy, that company really ought to pay….’ and if I later found myself sitting as a potential juror for that case, I would know that it isn’t the case for me. Based on my views, I probably should be assigned to a different case. 

Test It

Because it serves such a vital function while also serving as your introduction, your script to open and set the context for voir dire should be something you work on and test. A mock voir dire, either as part of a mock trial or as a stand-alone exercise, is an ideal time to test out your approach, along with your substantive questions on the case. So try it out, and ask about it at the end. What was your first impression? Did you feel comfortable sharing your views? Did anyone think it was condescending? Did it make you want to be more candid? Did anyone feel I was nudging you in any directions?

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Image credit: 123rf.com, used under license

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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