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.]
Have you ever had a zippy little email exchange with someone through work and thought, “Now, that’s someone I’d like to meet for a cocktail”? That’s what I’ve thought every time I’ve emailed Shelmun Dashan over the last few years. Shelmun is a legal aid attorney at LAF in Chicago, where she represents clients in the Consumer Protection Practice Group, and she attended a NITA trial skills program through the tuition support of our friends at the International Society of Barristers [ISOB]. When I asked her about what it meant to her and LAF to receive training and support, she remarked, “Investing in [legal aid/public service lawyers] gives you incredible bang for your buck, even though you may never understand how much it means to our clients. The stakes are very high for our clients, so ISOB’s support of legal aid attorneys is a service and credit to the legal system and low-income clients as a whole.” That’s a sentiment that resonates with us, so inviting Shelmun to play “Asked and Answered” was a given. As you’ll see, whether she’s talking about the importance of equal access to justice or counting down the days until she’s snapped into her ski boots in Colorado, Shelmun is smart, cool, lively, and engaging. Next time you’re in Seattle, Shelmun, the drinks are on me.
What do you do for LAF?
I’m a legal aid attorney; what don’t I do? 😁 I am a staff attorney in the Consumer Protection Practice Group at LAF. I have full responsibility for―at any given time―twenty-five to forty-ish clients’ consumer finance problems. Examples of the kinds of cases I’m currently working on include getting a client’s student loans discharged on the basis of his disability to stop the government from garnishing his disability benefits, and a Chapter 13 Bankruptcy in which I filed an adversary proceeding to enforce a loan modification agreement that my client secured in 2016 but the lender “never received” her final documents, didn’t modify her mortgage, and then started foreclosure proceedings against her. I have a fun Fair Debt Collection Practices Act case against a debt collection firm that sued my client last year for a water debt his mother―who died penniless in 2003―owed on a house my client never owned. I have a client who is a senior citizen whose identity was stolen to get credit to buy a car. That meant her name went on the title. The identity thief then racked up thousands of dollars in parking tickets, which the City is now trying to extract from my client. Ironically, this client actually never learned to drive and has never had a driver’s license. These are but a few florae in the garden of consumer protection delights.
You’ve worked in legal aid ever since law school at Harvard. What attracted you to a public service career?
There were push and pull factors. I have always been a justice- and fairness-oriented person. I can’t stand bullies and people who abuse power. My parents also very much instilled in me a sense of service and responsibility to use your abilities and resources to help other people and make your corner of the world less terrible. There’s also the fact that black and brown people bear the brunt of poor consumer protection laws and enforcement; that infuriates me. I find almost everything interesting, so I am sure I could have been happy and had a great career doing something far more “prestigious” or lucrative. But the idea of being an agent―bound by professional rules to fire in whichever direction my clients point me―was very sobering for me. I realized I really wanted a job where what I personally care about is pretty closely aligned with what I am actually spending most of my time and energy and creativity working on. I have been very fortunate that I have been able to do so. I was also incensed after the financial crisis [that started in 2008]―both by the cause of the crash and by the government’s failure to make consumers whole or punish those who were responsible for tanking the global economy. I didn’t really have much of an appetite for representing the institutions who were involved in that.
How did you first hear about the trial skills trainings at NITA?
I am not sure except that many LAF attorneys have attended NITA trainings, so periodically people send around an email if there is an upcoming NITA program for which there are scholarships. It is also possible that my supervisor asked me to apply.
It’s been a couple of years since you attended the NITA program. What do you do differently now, as a result of what you learned, that impacts your clients in a good way?
One of my biggest takeaways from NITA was really thinking hard about strategy with framing, facts, evidence, and civil procedure. I think really hard about good facts and bad facts now. I do a lot more thinking about what the other side’s best arguments are and how I will defang them with other facts or with framing and picking my case theme. I think hard about crafting a cohesive narrative that the judge/jurors will follow and be moved by rather than letting the facts or chronology drag me around in my prep. I also enjoy cross-examination a lot more than I did before NITA.
What work accomplishment are you most proud of?
This is a hard one. I think I feel less proud of work accomplishments and more joy and relief for my clients and what the outcome means for them. There’s also a lot of satisfaction that justice was done or that I got to put a bad actor in their place. Last year, I won $30,000 for a subsidized tenant, stopped her from being evicted and losing her housing voucher, and $40,000 in attorney’s fees at summary judgment. I don’t know that I’m most proud of that, but it’s probably my most splashy accomplishment.
I must say, I was pretty pleased with myself in my first year of practice when I was finally able to write out the preamble on a court order without looking it up: “This matter coming before the court on Plaintiff’s motion to dismiss, both parties being represented by counsel . . . .” I felt like a real lawyer who didn’t have to Google “court order” to complete basic tasks.
You lived in Nigeria for twelve years. When you think back to that time in your life, what first pops into your head?
Fresh tropical fruit, invariably well-seasoned food, torrential tropical rains and how they sound on metal roofs, and Nigerians―who are the most intentionally and unintentionally hilarious people on earth (we can just take judicial notice of this).
You describe yourself as a “skiing fanatic.” Tell us about that.
Ha! I learned how to ski not far from NITA HQ in Colorado (at Eldora!) during winter break my 1L year and loved it. I have returned to Colorado every winter and spring since then (this will be my eighth year). I am now a full-blown skiing addict and evangelist, to the great bewilderment of my family and friends. For a law school graduation gift, my godmother offered to pay for a trip anywhere, so I went and skied Patagonia (Argentina side).
I never feel better than when I ski off a lift and start a run with the incredible mountain view in front of me, the warmth of the sun on the few exposed square centimeters of my face, and great snow underfoot. Heaven.
What are you reading for pleasure right now?
Isaac Asimov’s Foundation. I have meant to read it for years and years and finally started recently. I am also technically reading Matthew Desmond’s incredible book, Evicted. But I don’t know if I’d describe that as pleasure reading. As a former eviction defense attorney, the book is too real. I have given myself permission to read it in manageable doses.
What were you obsessed with as a kid?
Ha! Reading and playing soccer. I read so much fantasy. I would hide in trees or under the couch or behind a curtain, hoping that being out of sight would stop people from bothering me so I could read. My mom would always tell me I was going to ruin my eyes from reading for hours by candlelight or kerosene lamp during frequent electricity outages. My all-time favorite book is Ender’s Game (which is sci-fi, I know; stand down, nerds).
If someone who’s never been to Chicago were to ask for your advice on what to see and do for a weekend trip, what would you tell them?
Hamilton. I don’t care how much the tickets are―it is worth it. Walk around Millennium Park and see the Bean and the gardens, and then go walk or bike the Lake Shore Drive trail. Go to a comedy show. Make a pilgrimage to Pequod’s Pizza (there will probably be a line). Brunch at Wishbone in West Loop. Everything they make is delicious. Go to a live music venue like Buddy Guy’s or the Green Mill. You can skip Navy Pier. You can skip the Sears Tower (it is now called the Willis Tower by nobody who lives here). There are many great museums, if that’s more your speed. There’s a free zoo in Lincoln Park―not far from downtown. If you like seeing “city-ness” or shopping, you can walk down the Magnificent Mile. In warmer months, the architecture boat tour gets rave reviews. It really depends on what you like, but whatever it is, Chicago has it. I will also note, we have very good public transportation. And everyone should read Devil in the White City, which juxtaposes the planning and execution of Chicago World’s Fair of 1893 with the story a serial killer who was active in Chicago at the same time. It is a riveting and informative piece of non-fiction.
If you could pick up a new skill in an instant, what would it be?
Musical instrument (Voice? Cello? Drum set? Guitar?) or the ability to pick up new languages quickly. Maybe a martial art. Although, as I think about it now, if I could ski race I’m sure I wouldn’t have any competition if I tried to represent Team Nigeria at the next Winter Olympics.
Lightning-round questions. Coffee or tea?
I love both. I drink them both daily with sweetened condensed milk. My arteries are thrilled, I’m sure.
Early bird or night owl?
The nightest of owls.
Winter or summer?
I’ll give you one guess.
Introvert or extrovert?
It surprises many people that I’m an introvert.
City or country?
And finally, what is your motto?
“The world will not collapse.” It’s actually my dad’s motto, but it is very much part of how I lean into life. It was basically my dad’s way of saying, “[insert problem] is not the end of the world.” Which is literally true of everything. It helps give me perspective and calm so I can focus on what is really important to me rather than being distracted or unduly dismayed by life’s unending stream of annoyances and disappointments.
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Enjoy this interview? Find more of our Asked and Answered interviews with NITA personalities here on The Legal Advocate.
For the second year in a row, NITA worked with the Office of the Child’s Representative (OCR), a Colorado state agency providing legal representation to children involved in the court system, for a public service program. The program took place at NITA’s headquarters in Boulder, February 21 – 23. It was led by NITA Program Director, Terre Rushton, who served as a faculty member of the program in 2017. This year, Rushton worked closely with Ashley Chase from OCR, in order to develop a customized program schedule.
This three-day program focused on skills such as: case analysis, closing arguments, witness examination, direct/cross examination, and use of exhibits. In true NITA-fashion, the attendees benefited from the learning-by-doing methodology. One attendee stated, “I really enjoyed the course and liked that it was interactive rather than a lecture format.” Another attendee found the method to be “incredibly helpful and effective.”
At the conclusion of the program, Rushton stated, “This program trained those attorneys who do some of the hardest and most important legal work in Colorado courts. The role they undertake as a representative for the child if often misunderstood. NITA worked with senior OCR attorneys to give these attorneys the confidence to use the trial skills they already had, to develop new skills, and to understand the changing role and rules of their courtrooms.”
NITA is humbled to have been able to work with OCR once again and to help aid in their mission and their values of accountability, efficiency, and empowerment, as they continue fighting for the most vulnerable population in the courts.
February 15 – 16, NITA and Dependency Advocacy Center joined together for a public service program held in San Jose, CA for eight attorneys to cover trial evidence skills. NITA Program Director Henry Brown, who has staffed over 100 NITA programs over the years, led the trial skills training, working with Dependency Advocacy Center Program Manager, Hilary Kushins.
The two-day training consisted of skills such as objections, witness examination, and use of exhibits. The goal of this training was to help the attorneys enhance their skills in making and meeting objections and understanding evidentiary issues as they arise in court.
After the training concluded, Ms. Kushins noted that the training was very beneficial and the attorneys enjoyed the hands-on aspect. “We had NITA come for a day and a half to conduct a very personalized training for our attorneys. The facilitator [Brown] was amazing and really tailored the training to the specific needs of the attorneys. The attorneys found the drills tremendously helpful. I have no doubt the attorneys will bring the skills they learned from this experiential, hands-on training into the courtroom for months and years to come.”
NITA is grateful to have been able to work with Dependency Advocacy Center on a public service program and hopes to continue training efforts together for many years to come.
I had a 100-day plan: a platform, a place to start before undertaking the role of NITA’s fearless leader, a way to measure my first 100 days on the job. Want to know what was on my 100-day plan?
With just a few date changes, the 100-day plan worked! The massive undertaking of a 10-city listening tour, assessment feedback and reporting out, training and transition, communication strategy, plus regular NITA operations, all happened as planned. I’ve spent a lot of time on messaging for staff to increase engagement, create a culture aligned with our core values, and push us to results-oriented thinking.
Developing my own communication strategy is still a work in progress. I am still thinking how to best connect with each of you on a more consistent basis. My overall goal remains to engage, align, inspire, and move people to act. That includes each of you.
Thank you to everyone who participated in a round table (we still have two scheduled), responded to my New Leaders Assessment, and called or emailed to tell me why NITA is important to you and how you view NITA’s future. I look forward to hearing from more of you as we move forward together.
National Institute For Trial Advocacy
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