EP 614- 12 Battle Tested Rules for Voir Dire Part One

Episode Notes

Transcript

Announcer:

Welcome to The Jury is Out a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm and St. Louis attorney Erich Vieth

Erich Vieth:

Welcome to another episode of The Jury is Out. I’m Erich Vieth.

Tim Cronin:

I’m Tim Cronin.

John Simon:

I’m John Simon. The title of today’s podcast is 12 Essential Rules for Voir.

Tim Cronin:

I think we had some longer sessions about voir dire, but we thought it would be a good idea to maybe just kind of cut to the chase of the key things we try to accomplish in voir dire and you kind of put together your thoughts, right?

John Simon:

So we decided to do it in a format where we could go through pretty efficiently and give some basic thoughts and guidelines on what we thought were the dozen or so most important things in voir dire. So lemme just as an introduction, obviously I believe cases can be won or lost before opening statement even begins. In my experience, I’m convinced that some people make up their minds about your case even before they leave their house. And that’s why we wanted to go through some of these battle tested rules and we hope that’ll help you with your voir dire. Why does voir dire matter? Voir dire matters because you’re getting an opportunity to engage with the people who are actually going to hear and decide your case. It is not just an information gathering session, it’s about, I think, primarily finding out who the bad jurors are for you. Some of those jurors who no matter what the evidence is in your case, they’re really not going to find for your client because of one issue or another, one bias or another.

Tim Cronin:

And you have to do that in a way. It’s really an art. You have to do it in a way that you’re trying to get people both to like you and you’re trying to sort of frame your case and identify bad jurors and get them to commit that they won’t be fair for you without those words. And yet have an open, it’s a difficult thing to get comfortable doing.

John Simon:

What makes it even more difficult is they know what you’re doing. They know exactly what exactly you’re doing. Sometimes the ones that might not like your case or they don’t like lawyers or they don’t like people who sue doctors, they might want to stick around to make sure things go the way they think they should go. And so you got to open up and address ’em. So can I take just a little slight

Erich Vieth:

Detour? Where are jurors? You two have tried lots of cases. Where are they before you say your first word, they just showed up in the Courtroom. It’s a big Courtroom full of people. What do you assume they are thinking before you start talking?

Tim Cronin:

I’m very, very annoyed that this is wasting my time and I don’t want to be here. That’s

John Simon:

Probably some of them may have spent four or five hours in the jury assembly room, in

Tim Cronin:

Jury assembly room

John Simon:

Room sitting around waiting

Tim Cronin:

Or gone through another voir dire earlier that day,

John Simon:

Right? Right. But anyway, with that said, I don’t think there’s anything more important in a case than voir dire. I think it’s one of the most challenging and difficult things to do in a trial, and I believe 100% is it is the most important. So let’s get rolling. The 12 rules, the 12 essential rules for voir dire. Number one, get them talking. I mean, man, that’s what it’s all about. If they’re not talking, if they’re not being open and honest with you, you’re spinning your wheels. It is a waste of time. I like asking their permission to talk to ’em right out of the bat.

Tim Cronin:

And on that point, John, look, sometimes you run into a panel and you can do all this stuff and you’ve done tons of voir dires and you just get a panel and you can’t get ’em talking. Sometimes that happens to us, but if you follow some particular points, you have a better chance. To your point, John, ask permission. It kind of dovetails on what Eric just said. First of all, I think people who teach public speaking will tell you introducing humor early when you’re talking to people gets people to open up and listen to you more. So I try to do that in some way that may be self-deprecating, but asking permission, one of the ways I get into asking permission, and I think you and I do the same thing, is I acknowledge what Eric just said. Look, you all have places you’re taking time out of your life. This is important public service, we appreciate that. And you’re coming down here, you spend time in the general room, you come up here, you sit on a hard bench, you’re told to sit somewhere with a paddle and as a reward, you get asked a bunch of questions by lawyers all day and we press you for answers and nobody asks your permission.

John Simon:

And what we do, sometimes I do this almost in every case, I’ll ask, okay, and you’ve done this. Who here has done this before? Raise your hand.

And then who here has not done that? Let’s raise your hand because you get physically doing things, paying attention. And then I’ll say, now the most important question you’re going to hear all day in this whole process, who hasn’t raised their hand yet? To either one of those, to either one of those questions. People start laughing. And even if there is somebody that didn’t raise their hand, they’re not going to raise it at that point. And then I use that to tell ’em how important it is to talk. We just want to know what you’re thinking. We want to know what you’re thinking about, issues that you’ve never thought about before and ever maybe how to value a personal injury, how to value pain and suffering, things like that. There’s

Erich Vieth:

A great metaphor for what’s going on here. It’s break the ice. And we all have seen rooms of people where half of them are not talking. It could be any social setting, but once they say something, now they’re in. Now they’re

Tim Cronin:

Part of the process. And if somebody says something that’s to the extreme of one direction, like I’m just never on board with any cases against doctors, or you get a doctor on a panel in a med mal case who says, you know what? All these lawsuits are frivolous and I’m upset about it. It usually gets somebody who wasn’t willing to talk. That’s on the other side that goes, you know what? I’m okay with that either. I think we should. And then it gets everybody talked,

John Simon:

Right?

Tim Cronin:

Break the ice is the right

John Simon:

Way. One thing, a very practical tip, don’t ask yes or no questions. Get away from your outline.

Tim Cronin:

You’re

John Simon:

Trying to get people to open up and talk, ask open-ended questions, keep them talking. I tell ’em, look, you’re not going to hurt my feelings. Think of all the reasons why people don’t want to speak up in public. Am I going to get pushback and you’re going to quit? Right? Right. And I’m not pushing anybody back. We’re going to respect all of your opinions. We want to know what it is you’re thinking.

Tim Cronin:

We expressly tell them, right? There are no right or wrong answers. The process only works if you’re open and honest. Brutal honesty. And I think I especially say, can everybody here promise to tell me your thoughts? And I’m the plaintiff’s lawyer, especially if you don’t think I’m going to like what you have to say. I promise you I’m going to be happy to have you tell me that I’m not going to try to change your mind at all,

John Simon:

Right? Anyway, the rule number one, get them talking. There’s nothing worse than being 10 minutes in. You got 70 people in the room and nobody’s saying anything. One except you. Except you. So get creative, get ’em talking.

Tim Cronin:

If you get in that situation, by the way, I’ll make a joke and go, man, I’m really tanking here. Nobody here wants to talk to me. And if you get a laugh, usually you can get people to open up.

Erich Vieth:

Rule two, be a great listener. So if you get them talking but you don’t say anything to what they say, that’s a great way to quit them. Get them to quit talking. So you want to listen and respond or nod eye contact something that they go, oh, I said something and it mattered. It mattered to

John Simon:

These people in the front, especially if they say something that’s pretty emotional or significant. They had a family member who had cancer or family member who was terribly injured. You don’t want to just put a check

Tim Cronin:

The checklist and move on. You make

John Simon:

Right, right? Show genuine interest in

Tim Cronin:

What they’re saying. And you need to look at their body language. People say more with their body language than they do with their words.

John Simon:

Acknowledge what they’ve told you, confirm it, recognize them. Eric, you’re right. It’s tough enough to get ’em to talk, but if you’re not listening, what’s the point? Here’s another thing, another tip on being a good listener. I don’t take notes. I don’t take any notes during voir dire. I don’t either zero. And I think you really can’t do that. You can’t talk to somebody and actually have, imagine trying to have an in-depth conversation with someone about some very important issues and you’re trying to write down what it is they’re telling you. It just doesn’t work. If we try a case together,

Tim Cronin:

If you’re doing voir dire, I take notes. If I’m doing voir dire Utah, you should always have somebody else there to take notes of what everything. And the judge is usually taking notes. In almost every case I’ve tried, the judge has copious notes. And when you move for cau later, they’re like, that’s not exactly what I wrote down. But I agree. You can’t be writing down what people are saying and listening to it.

John Simon:

What we do here is we will have at least two other attorneys taking notes during the voir dire. Or if you don’t have two other attorneys, get a paralegal or your legal assistant secretary. Usually what we do is the person who’s asking the question, conducting the voir dire is not the one that argues the for cause challenges. That way it completely frees you up. You’re just engaged. You want to start a conversation. Don’t take notes, don’t use a checklist. Stay away from your outline. Let others take notes and argue the challenges for cause. And the other thing you talk about body language. Read the room. Read the room. And we’ve said this before on the podcast. There are some studies out there that say 75 80% of our communications are nonverbal. How well can

Erich Vieth:

We read body language though? Yeah, I mean I know sometimes you’ve nailed it. You’ve talked about other incidents on other podcasts where you read it, right? And the juror came up after the trial or an alternate juror. Do we know how accurate we are? Does crossed arms really mean I don’t like this or resent this or something? How much can we go with read the body

Tim Cronin:

Language? Sure, it’s not a hundred percent accurate, but I think you can usually get a pretty good idea if somebody is just like you are never winning them

John Simon:

Over. And here’s the thing though, we’re not taking what their arms crossed and making a final conclusion about it. I think if you see some body language that raises some question in your mind,

Tim Cronin:

Make sure you talk to

John Simon:

Him, make sure you talk to ’em and you follow up. And I’ve done that before where you just say, it seems like you’ve been kind of quiet and sitting there and by your expression how you’re sitting, it’s got me worried a little bit. Are you okay with what we’ve talked about? What are you thinking right now? What are you thinking right now? Okay,

Tim Cronin:

Yeah.

John Simon:

So body language,

Tim Cronin:

And I think if you stand behind a podium the whole time you’re closing yourself off and they feel that way. So they close themselves off. You got to get out a little bit. Take what somebody said and go, that’s a really good point. I’ve never heard somebody put it that way. What is everybody else’s thoughts about bounce what they are saying to the rest of ’em? So it’s like not your question, it’s like a question. One of them posed to the rest of the room.

Erich Vieth:

Do you have a list there so you know their names or do you memorize their names ahead of time? How do you do that?

John Simon:

So what I do, I’m not a memorizer, I don’t memorize the names because I think that interferes with your ability to talk and listen and communicate with people. We have a chart, right? I’ll do, all I have in front of me is a chart by sections, a three page chart with just the name. I don’t even put a whole lot of information down just the name because I want to learn everything I can. I want to be forced to actually talk to them. We do the background checks and all of that.

Tim Cronin:

If it’s a med mal case, I might write nurse, doctor,

John Simon:

Something like that. Or for instance, that’s a good point. If you see somebody that you want to use in some of your questioning to make a statement or make an example or help frame your case. For instance, if you have a case that has to do with testing and you see somebody that works in a laboratory or an engineer, engineer, then you would say, well, what kind of testing do you do on your product? And tell us about that. So you do want to cherry identify and cherry pick some of the jurors you think will be helpful for you in your voir dire.

Tim Cronin:

Number three, establish your credibility. This is not just important for the purposes of getting people to open up to you during voir dire. This is your first chance to establish your credibility, which becomes important for the rest of the trial. And so Johnny tried a case just this week, right John? And he came right out of the box and said, we got some problems in our case, here’s what they are. I want to talk to you about ’em. And my understanding is the other side. And then opening statements started with transparency and credibility is important. We came right out and we told you this. Let me tell you what you didn’t here. So we are trying as attorneys right on each side to establish that we’re the ones who are more credible. And when we say something, you can believe it. We’re going to tell you the good and the bad and this is your first chance to do it. And as plaintiffs, we get the benefit of getting up and getting to try to do that first. So you need to concede when necessary. Like I am here for my client. I’m here to try to make sure my client gets a fair juror. They’re here to try fair jury. They’re here to try to do the same thing. And then you have particular things you say like It’s okay to dump us, promise you’ll dump us if we don’t prove our case.

John Simon:

If we don’t make our case, does everybody here agree? If we don’t prove our case, we lose. You won’t find it in our favor. We don’t prove our case. You will not decide

Tim Cronin:

On sympathy. We

John Simon:

Don’t want it. Everybody promise? And one of the things that happens all the time, it’s going to happen in your voir dire more likely than not is someone will be solidly in your favor and say, the same thing happened to my Aunt Jean and there’s no way I have to give your client money no matter what. And don’t try to rehabilitate that person because it really, you need to say, okay, understood. So you’re not a good juror. You wouldn’t be a good juror for

Tim Cronin:

Them. I get ’em off for the other side,

John Simon:

Right? Get ’em off for the other side.

Tim Cronin:

Got it. So they deserve a fair jury too. So what you’re saying is we’re starting out ahead. We’re probably going to stay ahead.

John Simon:

Yeah, acknowledge it and get ’em off. And you’re telling the jury neither one of, but we don’t want people who are fair or unfair to either side, not well, we don’t want people to be unfair to us, but if you’re unfair to them, that’s cool.

Tim Cronin:

Hang around on quiet down, quiet down. Hold on,

John Simon:

Don’t say that. So it’s an opportunity. And here’s the thing too. You go in there, they don’t know you, right? They don’t know who you are. You want to destroy the lawyer stereotypes concede things when they’re necessary. And most importantly, don’t ask silly bullshit questions, just don’t things that aren’t going anywhere. If you’re asking a question, there should be a reason for it. You have a plan and that plan consists of asking questions about certain issues and you’re doing it for a reason. And so ask meaningful questions. Now, there’s some questions that you hear a whole bunch in voir dire, like spending 20 minutes on the number of lawyers on the other side in how big their firm is or how many different cities they’re in. I think that stuff can hurt you as much as it can help you. It could come up because they’re like, wait a minute, what’s the point?

Tim Cronin:

You’re being petty

John Simon:

Or just decide the case for some other reason. Credibility is not only establish it, but keep it. Hang on to it because if you lose your credibility, say goodbye to your case, you are done. You’re done.

Tim Cronin:

Especially for the side that has to ask for money.

John Simon:

So along the same lines, we’re moving to rule number four, make them trust you. Develop trust. How do you do that? Well, you can’t do it without being yourself, being sincere and being authentic. Do not alienate anybody. Don’t patronize jurors as a group. The jurors are a hell of a lot smarter than any individual person or lawyer I’ve ever met or any judge as a group. The combined memory, the combined education, the combined life experience, but everything you do, you’ve got to gain their trust. You just got to gain their trust.

Erich Vieth:

I’m seeing one of the notes we want to talk about. They know why you are asking questions, which seems to have some tension with topic one. I think a lot of people know if I say something that favors one party or the other, I’m off the case or someone’s going to kick me off the case, but they want me to talk.

Tim Cronin:

I’ve had panel members say directly, I feel like you’re trying to get me to say things in a certain way and it’ll be like an insurance adjuster who’s refusing to acknowledge that they aren’t favoring one side or another. And I just say, you’re a hundred percent right that yeah, look, I’m on the plaintiff’s side. I’m dealing with insurance adjusters on the other side whose job is to try to minimize the exposure in a case I want talk to you about it. And I am trying to probe into certain issues and if I think it’s accurate, I am trying to get you to agree to things in a certain way. If it’s true, you’re right. That’s exactly what

John Simon:

I’m trying to do, right? Part of it too is we run into that problem when you need to say, look, as lawyers, we’re going to argue issues in front of the judge and we would just want as much clarity as we can get. And that’s why we’re doing it. And it really comes in where somebody’s, nine times out of 10 you say, well, can you set that aside and decide this case based on that facts and the law? And a lot of times I think so. And then you’re like, well, let’s talk about

Tim Cronin:

That a little bit. And when you get that answer, you respond really well, John, you laugh and go, well, I hope you can understand. I think so.

John Simon:

Causes me a little concern. Doesn’t do me a, doesn’t give me a whole lot of comfort right now. Okay? If I ask you a couple follow up questions and they go, yes, of course. And of course there’s the example of the pilot flying the airplane in bad weather. You want to probably find that out before you get on a plane and off.

Tim Cronin:

This is going to be safe. I think so,

John Simon:

Yeah. I think we had some bad weather up here, sir. Are you okay with that? I think so. Let’s see how it goes. But again, these are so simple that the topics are simple, but they’re so incredibly important and there’s so many things that go into it. Think of all of the things that you can do, your body language, your questions, your ability to listen, your ability to engage. You’re trying to develop credibility and trust. I will tell you this, it is the most humbling part of anything in the practice of law that I’ve done. And I even mean court of appeals arguments. You need to be vulnerable. You just need to be open and honest. You’re not putting on a show, you’re not trying to impress anybody. You’re just hanging out asking questions and getting people to talk to you about how they feel about things. You really need to be yourself, be yourself. Because if you are not yourself, if you’re not authentic, people are going to read that in a second. You just got to be yourself. Establish your credibility, make ’em trust you.

Erich Vieth:

Number five,

John Simon:

Lower theBar for admitting bias. Everybody has different life experiences. Everybody has strong feelings. I tell the jurors as a group, not everybody’s right for every case. Nobody wants to think that they are biased, right?

Tim Cronin:

And so we give examples of how we wouldn’t we want. We think we’re fair, but how we wouldn’t probably be giving a defendant a level playing field if we were on a jury,

John Simon:

Right? And I even say bias outside of the Courtroom. It’s bad outside of the Courtroom. In the Courtroom, we’re biased about, it’s not a bad word in the Courtroom, are we biased because we don’t like personal injury lawsuits because we don’t like medical malpractice cases. We know from experience people feel very strongly about those things. And I use the example myself that I’ve handled thousands of cases against companies and insurance companies over my career. And to be absolutely honest, if I was on a case involving with a claim against an insurance company, it’s probably not a good case for me. I’m probably not a good juror for the defendant in

Tim Cronin:

The case I had the Rams as an example, we’re in St. Louis. Anybody here think they’d be totally fair to the Rams if they were in defendant? And people laugh and go, probably have to admit they’re probably not starting off on an even playing field.

John Simon:

And I use examples from my family. I have several family members who are in the medical profession, nurses, doctors. One of my seven sisters, two of ’em are nurses and I love ’em both very much, but I probably wouldn’t want ’em on my jury in a medical malpractice case based on that. And they tell me that and do and do. So it’s okay. It’s okay. You want to really convey in some fashion that there’s no right and wrong answer. You need to really be open and honest and tell us what you feel. How do you feel about

Tim Cronin:

That? I do a chocolate chip cookie example, which is super corny, but I do it because it’s super corny. If you were asked to judge a chocolate chip cookie contest and you just really didn’t like nuts, maybe you’re allergic to them. You show up and you find out some of the cookies have nuts in ’em. They’re pretty much off the table in terms of whether they can win the chocolate chip cookie contest. Anybody think you should keep that to yourself? Or maybe you should say, I probably shouldn’t be judging the chocolate chip cookie and almost everybody will go, well, yeah, I mean that’s not fair to the people who have nuts in their cookies. And it’s like a corny example that gets people to get on board with. I get it.

Erich Vieth:

And they’re saying, I love that folksy guy up there.

Tim Cronin:

Yeah, well

Erich Vieth:

I know this guy.

John Simon:

The cool thing too is it’s once I want ’em to think I’m corny. Once you get one or two people to say, yeah, this probably isn’t the right case for me. I don’t like lawyers, I don’t like personal injury lawsuit,

Tim Cronin:

Then everybody else is willing

John Simon:

To do it. That’s so important because you want to use that person to help pivot to others, then you praise them, right? Then you praise them and thank them and all of this and say who else? Who else kind of feels like that? But it’s very important lower theBar. You don’t want to make ’em feel like, wow, I got rejected for jury duty. They don’t think I’m fair. I’m a fair person. It’s not about that. Could we give one

Erich Vieth:

Example of where you’re not looking for dramatic bias where they know they’re not able to, but where you’re looking for lowering theBar for even little things, you’re looking for people to admit they’re a little less than happy about something in the case.

Tim Cronin:

I mean it really depends on the issues, but I mean, here’s an example of a case I may have talked about in a previous podcast where it was a case where we were going to ask for a substantial amount of money and it was a medical malpractice case where our client got discharged and tried to then later kill herself and she was suicidal at the time and got discharged. And so it’s kind of a delicate issue to talk about people’s experiences with, and this is all I talked about for four hours in voir dire that somebody intentionally tried to kill themselves. Here we are and we’re going to ask for a bunch of money for someone who intentionally tried to harm themselves and pulled it off and say it’s somebody else’s fault. Is anybody have a little unease about that concept? And the room opened up and once a couple people said, look, I have a friend or a family member who killed themselves and just I think it’s selfish and it really rubbed me the wrong way and I got a real problem with that. And it doesn’t mean that I wouldn’t try to base it on the facts, but I’m a little uneasy about that concept.

Erich Vieth:

I like that how you put it. We’re not looking at dramatic unfairness now we’re looking at unease or discomfort perhaps with an issue that can bring out the

John Simon:

Subtle differences. Does it cause you some concern? Might you have a little bit of trouble with that? Things like that. It’s not at the level of, I can’t be fair. And some of the jurors are going to say, I can’t be fair because of this. But you really want to make them understand that that’s not what’s needed. What’s needed is if you have some difficulty, some hesitation, some cause for concern, some trouble. And keep in mind ladies and gentlemen that now’s the time to really talk about this because we can’t really get into the evidence. We can’t tell you what those issues, what those specific issues might be.

Tim Cronin:

Could that impact your judgment and what you decide in this case in any way before you even know what the evidence and the instructions are?

John Simon:

Yeah, and I think you really want to emphasize in the beginning, not everybody is right for every case and it’s not based on being unfair or dishonest, whatever. It’s not based on being unfair. It’s based on who you are and the experiences that have happened in your life. I like to tell people, look, everybody that walked through this door in the morning in the Courtroom, you’ve got a completely different life. You’ve got a whole 30, 40, 50, 60 years, 70 years of life experience that I don’t have that the person next to you doesn’t have. And so you’re going to react to issues. We all have different ideas and different feelings about the thing. So you really, overall, you just want to make ’em understand how important it is to voice the fact that they might be uncomfortable or not at ease with some issue in the case. And you’re not going to hurt anybody’s feelings here. That’s exactly what we’re here to

Tim Cronin:

Find out. Number six, never directly ask if someone can be fair. If you’ve identified someone and they’ve said some things that cause you concern about whether they’re really going to be truly balanced in weighing your client’s case. If your question is, well, can you be fair? What is almost everybody going to say, well, yes, I can be fair. Of course I can be fair. So I mean maybe when you’re trying to rehab somebody, you go, well, you said all of this, but you can be fair.

John Simon:

And the other thing too is think about this. If they say yes and you’re convinced that they still shouldn’t be on the jury because fair is not the standard, and then you keep after them, after you said, can you be fair? You’re basically saying you’re a liar. No, you’re a liar. You can’t be fair. I want to keep arguing with you about this. So if you ask somebody if they can be fair and you’re doing it because you’re concerned and you want ’em possibly off the jury, it’s going to end up with them thinking that they’re calling you unfair. You are an unfair person. Need, need to get the hell out of here, get out of the room.

Tim Cronin:

Whereas if you walk ’em through, just that would trouble you a little bit. That probably isn’t going to escape your mind when you go back there. Eventually they might get to like, so look, nobody wants to say this, probably not the most fair juror for the case. My favorite is when they stand up and go, the judge is going to give you instructions that you have to base it on the evidence. Are you telling me that you aren’t going to be fair and listen to the judges? Like, oh, now you’re threatening them. Got it. The judge is staring at them. So there are ways to establish they’re not going to be the most balanced, fair people for the jury where you can’t just come out and be like, you’re not going to be fair, are you? Because almost nobody’s going to say that.

Erich Vieth:

This ends episode one of 12 essential Rules for Voor Dire. There’s more to come in part two, but this has been an episode of The Jury is Out. I’m Eric Thief. I’m Tim Cronin.

John Simon:

I’m John Simon. We’ll see you next time.

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