Building a Better Voir Dire

• Pages: 20-21
• Date: 01 January 2024
• Author: Hon. Carl A. Aveni
• Subject Matter: Civil Law

t’s midafternoon on Day 1 of a medical malpractice trial,

and one of the lawyers is asking the same short list of voir

dire questions to each and every prospective juror on the

panel. A half dozen variations, perhaps, but all essentially

boiling down to “have you ever had a serious medical pro-

cedure?” and “how would you feel if it had gone badly?”

Every now and then he adds, “Could you listen to all the evi-

dence and reach a fair verdict?”—to which, unsurprisingly,

each dutifully responds that they could and would. And noth-

ing more. Over and over, to each in turn, eliciting nothing dif-

ferent or particularly insightful. For their part, the prospective

jurors are sitting silently, perhaps thinking about other things,

as they wait their turn to be interviewed.

Whatever energy the panel felt as they rst entered the

courtroom this morning has long since dissipated, along with

whatever enthusiasm they may have had to serve. Worse, the

lawyer has learned nothing about the biases that each pro-

spective juror would bring to the trial. Sure, some committed

that they would be fair and impartial. But only a juror actively

and theatrically trying to get removed for cause would have

responded otherwise. How does that generic commitment

help the lawyer discern where to exercise his limited peremp-

tory challenges? How does it help the lawyer shape a jury that

would be amenable to his case and themes?

Building a Better Voir Dire

By Hon. Carl A. Aveni, Litiga tion News As sociate Ed itor

© Getty Image s

Voir dire is the only chance a lawyer gets to engage jurors

in conversation. It is the only opportunity to test attitudes

and root out biases that, left undiscovered, might prove fatal

to your case. Given the limited amount of time the court will

allow for voir dire, you are not likely to reverse or even neu-

tralize a juror’s closely held prejudices. But with empathetic,

open-ended questions and careful listening, you might discern

what those prejudices are (and where harmful), lock them in

against rehabilitation, and remove them from your panel. Seen

in this light, voir dire is less about selecting a jury and more

about deselecting the least persuadable individual jurors. But

rst you need to understand the idiosyncratic limits your court

will impose on this process.

Understand the Mechanics

Judges enjoy broad discretion over voir dire, and procedures

may vary widely even between two adjacent courtrooms

within the same courthouse. Some judges will describe their

expectations in standing orders or publish them on the court

website. But either way, you should invest some time at the

nal pretrial conference to discussing your specic judge’s

requirements for voir dire.

For example, how large will your panel be? Will the court

limit you to questioning only those prospective jurors seated

WINTER 2024 • VO L. 49 NO. 2

20 | ABA LITIGATION SECTIO N

Published i n Litigation News Vo lume 49, Numbe r 2, Winter 2024. © 2 024 by the Americ an Bar Assoc iation. Repro duced with perm ission. All r ights reser ved. This infor mation or any por tion thereof

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