Voir Dire

• Author: Jim Wren
• Pages: 383-418

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14. Voir Dire

Chapter 14

Voir Dire

I. Why Voir Dire Is Crucial

§14:01 Jurors Will Discuss Frivolous Lawsuits

§14:02 Challenges That Voir Dire Addresses

§14:03 The Goals of Voir Dire for Damages

II. What You Need to Know to Plan Your Voir Dire

§14:10 Know About Voir Dire

§14:11 Know About the Court

§14:12 Know About Your Case

III. Planning Focus #1: Take a Balanced Approach

§14:20 The Importance of Balance

§14:21 Plan the Sequence

§14:22 Plan the Priorities

IV. Planning Focus #2: Frame Your Damages Case

§14:30 Plan the Statements

§14:31 Plan the Questions: Common Damages Issues

§14:32 Plan the Questions: Anchoring the Damages Range

§14:33 Plan the Questions: Establish Preponderance as the Standard

V. Planning Focus #3: Create a Group With You Included

§14:40 The Jury Functions as a Group

§14:41 Use a Style That Fosters Group Formation

§14:42 Protect Favorable Jurors From the Defense

VI. Confronting Problem Issues

§14:50 Fear of Assessing Big Damages

§14:51 Resistance to Intangible Damages

§14:52 Resistance to Future Damages

§14:53 Resistance to Damages for Unintentional Injury

§14:54 Resistance to Full Damages When Plaintiff Has Fault

§14:55 Defensive Attribution

§14:56 Damages for the Death of a Child or Elderly Person

§14:57 Insurance and Collateral Sources

§14:58 Lawyers and Contingent Fees

§14:59 Client Referred to Doctor by Lawyer

§14:60 Punitive Damages

Proving Damages to the Jury

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14. Voir Dire

VII. Using Written Juror Questionnaires

§14:70 The Value of Juror Questionnaires

§14:71 Designing Juror Questionnaires

§14:72 Requesting Juror Questionnaires

§14:73 Analyzing Juror Questionnaires

VIII. Challenges for Cause on Damages Issues

§14:80 Developing Challenges for Cause

§14:81 Pursuing Individual Challenges

IX. Forms & Samples

14-1 Jury Instruction Before Voir Dire

14-2 Juror Questionnaire

14-3 Alternate Juror Questionnaire

14-4 Motion to Allow Juror Questionnaire

14-5 Challenge for Cause Chart

Voir Dire §14:03

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14. Voir Dire

I. Why Voir Dire Is Crucial

§14:01 Jurors Will Discuss Frivolous Lawsuits

If you have selected a jury for the plaintiff in a damages case lately, you already know

the answer to why voir dire is important. If you haven’t selected a jury lately, here is the

answer in a nutshell: Most jurors today simply accept that there are too many lawsuits,

that many of them are frivolous, and that a plaintiff lawyer will try to talk them into a

“McDonald’s” verdict.

There will be a discussion about where your case fits into the spectrum of “frivolous

lawsuits” brought by “greedy trial lawyers.” The only real question is whether that

discussion will start in jury deliberations without you, or start in jury selection where you

have a chance to participate in the discussion.

You should prefer to be involved in the discussion.

§14:02 Challenges That Voir Dire Addresses

Jury selection presents the opportunity to directly address the most important of the biases

and challenges likely to affect the jury’s understanding and acceptance of your case.

We know generally the issues repeatedly raised by jurors. Some issues come up in all

cases, and other issues come up more often in particular types of cases. You will need to

figure out which issues are likely to be most important in the jury’s assessment of your

particular case. [See §14:12.]

For example:

• In a wrongful death claim brought against a driver who momentarily strayed

across the center line of the highway: Will the jurors reduce the assessment of

damages because the defendant driver did not intend to cause the harm? Will some

jurors resort to the belief that “stuff happens” and they should not substitute their

judgment for God’s will?

• In a case involving complaints of chronic, debilitating pain, one of the most

powerful challenges to confront may be a reluctance to place a large dollar value

on intangible damages. A plaintiff complaining of chronic pain may trigger an anti-

plaintiff bias when perceived as “whining.”

Whatever the most crucial issues may be, jury selection is the time for them to be discussed.

§14:03 The Goals of Voir Dire for Damages

Trial lawyers and trial consultants generally present one or more of the following as the

goal(s) of voir dire:

• Uncover bias and eliminate problematic jurors.

• Persuasively educate jurors about your case.

• Establish a relationship of trust and likeability with the jury.

[See “What Every Lawyer Should Know About Jury Psychology and Jury Selection,”

Richard Waites, State Bar of Texas, 1999 (available from the Texas State Bar CLE Library

at www.texasbarcle.com).]