Chapter 3 Voir Dire Strategies

• Library: Picking a Civil Jury: A Guide for Illinois Trial Lawyers (2015 Ed.)

CHAPTER 3 - VOIR DIRE STRATEGIES

I. The Purpose of Voir Dire

"Jury selection has been likened to gardening. In a garden, it is necessary to eliminate weeds. The gardener culls what does not fit in."
Peter Carlisle, Voir Dire: Getting to Know You, Hawaii Bar Journal (Oct. 2004).

The Illinois Supreme Court has stated that "[t]he purpose of voir dire is to assure the selection of an impartial panel of jurors who are free from bias and prejudice."¹ This is a good statement as to the court's purpose. But for you, the primary purpose is "to gather information from the venire so that the court and the attorneys can adequately address challenges for cause and peremptory strikes."² It is also said that the purpose of voir dire is to identify (and excuse) prospective jurors who may hold a bias or prejudice that prevents them from being fair and impartial.³ This later statement is only partly true. The parties, through their attorneys, have a right to reject potential jurors, not a right to select them. More comprehensive statements of the attorney's purpose are as follows. First, you want to identify and exclude prospective jurors who have any preconceived ideas, traits, or interests that may prevent them from rendering a verdict favorable to your client. Second, you want to identify and include prospective jurors who may have biases favorable to your client (or unfavorable to the opposition). Finally, voir dire's purpose is to create in the prospective juror's mind a view favorable to the client, the client's counsel, and (most importantly) the client's case.

II. The Favorable First Impression and Impression Formation

"For a successful voir dire, you must carefully consider how you will present yourself to the jurors. The first impression that the jurors have of you is of critical importance. One author has identified five aspects that the jurors are evaluating when they first meet you: (1) your ap-pearance; (2) your sincerity; (3) your professionalism; (4) your concern for your client and the jurors; and (5) your attitude toward the jurors."
Lisa Blue & Pamela Francis, Jury Selection Techniques and Law of Jury Selection, 3 Litigating Tort Cases § 34.37.

The first time you have any contact with the prospective jurors is when the court officer brings the venire into the courtroom. Typically, they will be escorted to the courtroom's general seating area. As the jurors enter the courtroom, they are naturally curious as they peer over to the lawyers and litigants, and the process of impression formation beings.

Everyone knows the old saying "first impressions are lasting impressions." Science has demonstrated this saying to be true. Impression formation has long been studied by social psychologists and research has focused primarily on the kinds of information we receive that influences the formation of our first impressions. The initial information that the jurors receive about you and your client, information like physical features, non-verbal behavior, and verbal behavior, effect the juror's impressions. Therefore, you must be prepared to make a good first impression.

Before the jurors are escorted into a courtroom, your client should be coached on his presentation. He should be dressed appropriately. If your client is an injury victim seeking hundreds of thousands of dollars in damages, he should not be wearing a Rolex watch. His attire should be neat and formal, but in no way extravagant or gaudy.

As the jurors are escorted into the courtroom, you and your client should stand and face them. Your client's facial expression should be friendly but serious. You may offer a bit of a smile. After the jurors sit, counsel and clients will sit too. The judge will start introductory remarks, which may begin with an introduction of the parties and their attorneys. As the judge makes the introductions, you and your client should stand, turn toward the prospective jurors, and offer a brief, soft smile and wish the jurors a good morning. Without any uncomfortable or prolonged stares, a little eye contact with individual jurors is desirable. Eye contact is good, but there should be no sustained eye contact with a prospective juror. Some recent studies dispute the long held belief that lots of eye contact fosters greater persuasion (see below).

III. The Introductory Remarks to the Panel

"It is customary for [counsel] to make a few introductory remarks prior to the selection of the jury... [a]t this early point in the trial the juror will be paying close attention to what the lawyer says and does. Although the introductory remarks take just a few minutes, the jurors will remember."
Fred Lane, Goldstein Trial Technique, Third Edition, §9.34.

Judges generally allow counsel to make introductory remarks before beginning voir dire questioning of the panel. It is almost a tradition that attorneys use this time for hokey cliches and stories. Sometimes, lawyers try to ingratiate the prospective jurors with jokes. But trials are a serious matter and you should never act like a stand-up comedian. You are there to obtain justice for your client. And, while your efforts may be to "sell" your client's case, this effort is more likely to be successful if the jury likes and trusts you. The introductory remarks are an opportunity for you to connect with the jurors and to earn their trust.

Writers have properly suggested that the "lawyer cliches be relegated to the scrap heap where they belong."⁴ Especially ineffective is the age-old routine of using introductory remarks to explain the French derivation of the term "voir dire." This stale technique makes the attorney look like he or she is (or is trying to be) smarter than the prospective jurors.

Janeen Kerper argues that the best introductory remarks are "fresh, uniquely personal and scrupulously honest."⁵ Briefly explain that you will be asking probing questions. Without being oblique, apologize in advance for any question that might seem to be an invasion of privacy. Gobart suggests "something along the lines" of this:

Please understand that it is necessary for me as a lawyer, in order to adequately represent my client, to ask questions of all members of the jury panel with regard to your qualifications to serve as jurors in this case. The purpose is not to embarrass any of you, or to delve into your personal affairs. Rather, my questions are asked so that His Honor, the Judge, and the attorneys can assess whether there is anything in any juror's background or experience that might possibly affect that person's fairness and impartiality to both sides in this case. If you are excused, you should understand that it represents not a judgment about you as a person, or your competence to be a juror in other cases, but our best guess, and it is only that, that something in your background makes it inappropriate for you to serve in this particular case.⁶

In short, your introductory remarks should use your own personal style. Don't borrow age-old cliches. Explain briefly the purpose of voir dire while offering a window into your own life. Don't ask a juror to be "honest." Ask him or her to be "frank," "open," or "direct." Show the prospective jurors that you will be frank with them and thank them for being open with you. Be brief and try to look at those on the panel directly in the eye without staring them down. Be serious, but friendly, and try to create a relaxed atmosphere. You are the happy warrior seeking justice for a client who is very much like the jurors who will be selected to hear the case.

IV. The Importance of Timely Objections

"Defendant urges that the questioning of specific jurors concerning their relationship with insurance companies was excessive. [But] Defendant has not pointed out any place in the record where he made an objection to the questions and remarks at issue herein, and we therefore agree with the Plaintiffs that these issues have been waived on appeal."
Kinsley v. Kolber, 103 Ill. App. 3d 933 (1st Dist. 1982).

Jurors will be told by the judge and, perhaps, by the attorneys, that they should not hold it against a party that his lawyer has made an objection. However, during voir dire the jurors are especially troubled by objections. Thus, you should only object to questions posed or statements made by opposing counsel if the objection is clearly warranted and the question is prejudicial to your case. When an objection is justified, assert it immediately. When you fail to make a timely objection, or pick up on an objectionable subject matter, you may waive the ob-jection.⁷

If the trial court is aware of a fact that establishes a statutory disqualification of a juror, it is the Court's duty to excuse the juror.⁸ However, the Illinois Supreme Court has held that if the party objecting to the juror failed to use an available peremptory challenge to excuse the juror, he will not be heard to complain of jury selections.⁹ Additionally, the Corpus Juris Secundum notes that:

The right to an impartial jury is not violated by the erroneous denial of a challenge to a juror for cause where the juror is removed by peremptory challenge. Whether a party can obtain relief for such error may depend upon whether the party uses a peremptory challenge against the juror, exhausts peremptory challenges, requests additional peremptory challenges, or is forced to accept an objectionable juror.¹⁰

If your objection is to the final composition of the jury, you may assert it before the jurors are sworn. You should object to the final composition of the jury if the court intends to accept a jury (or jurors) in violation of your client's rights. The objection should be voiced on the record before the jury is sworn. The Illinois Supreme Court, in People v. Fair, stated that "[c]hallenges to the composition of a jury must be brought before the jury is sworn."¹¹ The court held that defendant waived any Batson claim (i.e., improper use of a peremptory challenge to exclude a minority venire person) by...