Voir Dire for Storytellers: From Restive to Receptive
Written by NITA guest blogger: Richard L. Murray, Jr.
Trials are competitive story telling: you tell one, your opponent another. A jury is an audience.
Lawyers’ goals for voir dire vary: Some try to ferret out “enemies” of their client’s cause. Some seek a “psychological profile” predisposed to their side. Others try to establish their power, or chattily try to make new friends.
I do mostly health care defense work, telling stories about disability, disease, and death. My goal is to turn the potential jurors into a receptive audience for a hard story.
Voir dire is a hard place to start, for it’s usually an awkward social interaction between you and a menagerie of unfamiliar people in a box, numbered like newly incarcerated prisoners, each frustrated that they’ve been pulled from their daily routine. A restive gallery at the outset.
First impressions matter, especially for storytellers. So how will the strangers in the box see me when I first speak? How will I introduce them to key elements of my client’s story? Can I do anything about that initial awkwardness and frustration?
Speech is a big part of a first impression. Jurors don’t trust lawyers, and talking like one just affirms their bias. Resist the lawyer’s penchant for “prior to” and “subsequent to;” before and after do just fine. Nobody wants to listen to a story from one whose speech is unsure, unfocused, or passionless. And surely no one listens long to an angry man.
My step in front of the jury box for voir dire begins my introduction. I try to treat jurors like they are new neighbors gathered for a meeting in my living room. I should be courteous and welcoming, and should speak simply and conversationally. My introduction goes better if I’m comfortable. I like important ideas, and struggle with small talk, so I ask about important things, which seems to go with the setting. We are all different. The trick is to talk about things that reflect your character, as well as your case.
What about introducing the elements of the story? Don’t pull punches. If the injured plaintiff is an elderly woman with COPD, Parkinson’s and dementia, I will ask about experience with progressive, debilitating neurologic disease. I may ask about “struggling for breath,” or endless falls that leave a frail, elderly person’s legs back and blue from their knees to their ankles (as falls from Parkinson’s left my mother’s), or the tyranny of being robbed of memory (as happened to my mother-in-law). These things are important. I may ask about how disease affected a parent, a close friend, a loved one. I ask how it made “you feel.” I try to do this in an empathetic, but forthright way. I try to get the tone right by reflecting on how those things made me feel. I hope to establish that I, like those in the box, can see suffering. And, I want them to know that if they are selected, we will all be in it together – wrestling with tuff stuff.
Address the elephant in the room: “No matter how injured the plaintiff is, no matter how heartfelt your sympathy, if the evidence does not support her claim, can you turn her away from the courtroom with nothing? I tell them there should be no misunderstanding, at the end of the case, that’s what the evidence may compel them to do. And, this may just pique their curiosity as to what story might justify this.
Your voir dire must have a positive side, some idea that will make the jury feel that, if they deny recovery to the injured plaintiff, they will have done the right thing. Maybe it’s affirming that the health care provider provided great care, maybe it’ll be just the satisfaction of knowing they followed the law.
Similarly, there must be a counterweight to the heft of the plaintiff’s injuries. I may ask, for example, assuming this will be part of the evidence, whether they know anything about the tremendous resources that go in to finding treatments for disease, the frustration for health care providers in not having discovered a cure yet, or something like that.
People are flattered if asked to do something important. Frame questions to emphasize the importance of determining if someone is truthful, the importance of determining what really happened, the importance of assessing whether a provider’s care was reasonable notwithstanding an undesirable outcome, and, yes, the importance of judging fairly. Jurors should know and feel that they are entrusted with hard work and that their job is respected. Elevating their role is a good tonic to all their awkwardness and frustration. If I can establish my credibility and bolster the importance of their work, I just may transition them from being a reluctant audience to a receptive one.
When it comes to peremptory challenges, certainly I’ll excuse those sympathetic to the plaintiff or with antipathy to my client, but I also jettison those with whom I don’t think I connected. I want listeners my story will touch.
[Richard L. Murray, Jr. is an attorney at Hall & Evans, LLC, a frequent faculty member of NITA’s trial practice programs, a lecturer for the University of Colorado Law and Medicine class, and an occasional lecturer at the Colorado Defense Lawyer’s Association and elsewhere. He is a member of the American Board of Trial Advocates.]
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