How is it that the best trial lawyers are able to navigate the voir dire process so confidently time and time again?
If you've ever wondered what strategies the pros are using, what signs they're looking for, and how they've become voir dire experts, you've come to the right place.
In this post, we're going to be sharing 10 strategies you can start using during voir dire today — strategies that they may not be teaching you in law school.
For example, using simple analogies to educate potential jurors on how bias actually works will make them more likely to admit when they may not be able to remain fair.
In order to make this essential guide to voir dire the absolute best resource available, we talked to top trial lawyers and legal experts who've been using these exact strategies for years to ensure that jurors aren't biased against their clients:
- Keith Mitnik, Senior Trial Counsel, Morgan & Morgan
- Shari E. Belitz, CEO, Shari Belitz Communications
- Kelly Hanker, Trial Attorney, Carpenter, Zuckerman & Rowley
In addition to the strategies, we’re also going to touch on what voir dire is, why it’s an important part of the trial process, and what the voir dire process usually looks like.
Take me to Keith, Shari and Kelly’s voir dire strategies…
What is voir dire —and why is it important?
Voir dire is the process of examining potential jurors to determine whether they are fit to serve in a particular trial.
For trial lawyers, the goal of the whole voir dire examination process is to ensure that no members of the jury harbor biases that could jeopardize the outcome of the case.
Without a strategic, well-prepared voir dire process, you run the risk of starting from behind with the jury when the trial begins.
The voir dire process
The exact steps vary by state, but the overall structure commonly looks like this:
- Potential jurors are randomly selected from a pool of people who show up for jury duty.
- The judge asks standard questions to ensure that everyone is capable of serving on a jury (e.g., they're US citizens and don't have any hardships that would prevent them from sitting through the entire trial).
- After those who are deemed incapable are excused, attorneys deliver a mini-opening, offering a 3-5 minute overview of their case (in states where permitted).
- Following the mini-openings, both attorneys ask questions of the remaining potential jurors to determine bias.
- Following the questioning period, attorneys can request that potential jurors be removed due to potential bias. The presiding judge has the power to deny the requests.
Attorneys also have the right to reject a limited number of potential jurors without cause. (The limits vary from state to state.) The attorneys may feel these individuals have potential biases or prejudice but aren't able to fully justify their feelings to a judge.
Voir dire strategies and sample questions from top trial lawyers and legal experts
It's important to understand some of the key strategies you can use to set yourself up for success in voir dire.
To help you get the results you want from voir dire, we talked to three legal experts to find out what their go-to voir strategies are, and how they'd recommend putting each into action. We've also asked them to share a handful of their favorite questions to lead with during voir dire.
Identifying bias with Keith Mitnik
Keith Mitnik is a Senior Trial Lawyer at Morgan & Morgan, the largest personal injury law firm in America. Having obtained multiple verdicts in excess of a million dollars, he is widely recognized for his trial skills and knowledge. He is the author of Don't Eat the Bruises: How to Foil Their Plans to Spoil Your Case, host of Mitnik's Monthly Brushstrokes podcast, and a frequent seminar presenter.
Overall strategies
I want to share three tips for an effective voir dire and why they are so important. Then, I will share three sample questions to illustrate these important concepts. All this is about dealing with bias against your side in the used case analysis.
There are certainly other purposes for voir dire, such as getting to know prospective jurors well, introducing key concepts, and establishing rapport. However, I am focusing on bias because I consider it to be the most important part. Subtle bias can have a profound, unintentional impact when two sides present conflicting evidence.
If bias in jury selection creates a negative expectation, you can bet the defense will give that biased juror something to hang their hat on — they will find a way to fulfill that expectation. The defense evidence will have an unfair leg up.
Negative expectations come in many forms.
One of the most common examples is suspicion that you or your client will exaggerate the extent of injury to get more money.
Another common bias is against motorcycle drivers. There is a belief that most bikers drive like maniacs and assume the risk for doing something so dangerous in the first place. If a certain number of people with that kind of bias end up on your jury, it will be hard to get full justice. It will take other strong leaders on the jury to overcome the influence of that juror's bias.
A juror who is skeptical of personal injury cases and expects some shenanigans from the plaintiff will see a ‘gotcha' moment when the defense shows surveillance film or social media posts of your client being active when, in fact, the films or pictures are completely consistent with your client's testimony. An unbiased juror would react, “So what? The plaintiff never said she couldn't smile or go on walks.”
When the juror who thinks of motorcycle riders as thrill-seeking maniacs hears witnesses for the defendant say, “The plaintiff was trying to slingshot around me,” he is likely to give that testimony more weight than that of the plaintiff, who says the defendant cut him off while he was driving safely within his own lane. An unbiased juror would put all the pieces together and conclude the defendant's story makes no sense.
Most biased jurors are good people who simply have opinions, feelings, or beliefs that would make it hard for them to be completely fair and impartial in their verdict on your case. The problem is they don't understand how subtle bias can have a big impact, unintentionally. They think if you have a good case, their bias won't matter.
The truth is very few can put their bias aside and keep it away, not when there is conflicting evidence and one side's evidence is aligned with those bias-based negative expectations.
Here are the three tips to effectively deal with bias during voir dire:
1. Educate potential jurors about how bias works.
Use an analogy to give jurors a crash course on how bias works. Once they understand, they are much more likely to admit they can't be completely fair and an impartial jury either. They'll do their best to put it aside, but they cannot assure the court they will be successful.
2. Locate those on the panel who are biased.
Ask questions to determine which panelists have a bias against parts of your case.
You need to make a list of topics where there may be bias, such as feelings against personal injury lawsuits, pain and suffering, large verdicts, motorcycle riders, medical malpractice suits, etc. Then, craft questions designed to find out who has a bias against those parts of your case.
3. Eliminate biased panelists by establishing challenges for cause.
Usually, there aren't enough peremptory challenges to deal with all the biased jury panelists. Besides, you are not supposed to have to exhaust peremptory challenges to excuse jurors who can't be impartial. Peremptory challenges are meant to be used on unbiased jurors to deal with other concerns.
In order to effectively establish cause challenges, you must wrap them in the law of your jurisdiction. Questions need to track language from cases that held the court should have granted a cause challenge when the juror said “x.”
For example, in Florida, there is a case law that reversed the trial court for denying a cause challenge when the juror said the party would have a strike against them and they could not say with certainty those feelings could be put aside. Two appellate opinions found it to be an abuse of discretion for the trial judge to deny the cause challenge under those circumstances. Other states require the person to say they have a leaning of the mind. Yet others require the person to say they cannot be completely fair and impartial.
You must find out what the threshold is to establish cause challenges in your local jurisdiction, then design your questions to meet those standards when you locate legitimately biased panelists.
The other key to designing effective cause questions is to seek the path of least resistance.
You don't want jurors to feel they are not fair people or are weak-minded for telling the truth about the impact their bias may have. That is why I include the phrase “in spite of your best efforts to put those feelings aside.” It acknowledges they will try, they aren't being stubborn. It also heads off efforts to rehabilitate on the grounds that the person can put those feelings aside.
How to put these strategies into practice (with example questions)
To recap, the three essential steps to make sure you have a fair and unbiased jury service during the trial are:
- Educate potential jurors about how bias works.
- Locate those on the panel who are biased.
- Eliminate biased panelists by establishing challenges for cause.
Here are a handful of sample questions and exact stories you can ask to help you achieve each of these essential steps:
1. Educate
Try to paint a clear picture for the potential jurors using analogies and stories they can connect with. They're not going to be experts on how bias actually works — it's your job to educate them.
Here’s exactly how I’d tackle this:
“Again, my name is Keith Mitnik. I'm going to be asking you questions about life experiences, opinions, feelings, or beliefs that could impact you if you were to sit on this case. We all have subjects that we have formed opinions or beliefs on.
If we were asked to decide who was right in a debate on one of those topics, one side might be at a disadvantage. I call those points of friction. The idea is to find folks who won't have to struggle with points of friction in this particular kind of case or parts of it.
It's as if we were having a competition to see who had the best pies and it was down to two pies, one apple and the other cherry, and I was randomly picked out of the audience to be the judge. It turns out, I'm not crazy about cherry pie.
How many of you think the only right thing for me to do, under those circumstances, would be to reveal that to the contestants and let them decide what to do with it?
Do you think the person with the cherry pie would want to know and ought to know that I'm not crazy about cherry pie? In addition to revealing that I'm not crazy about cherry pie, how many of you think it would also be the right thing for me to be honest with myself and not sugarcoat the potential impact that might have on me, in spite of my best efforts to put those feelings aside?
Not that I would take some dried-up, sorry pie that happened to have apple filling and a wonderful, succulent pie with cherry filling, and throw the contest just because one pie was cherry filling — I wouldn't do that. But all else being equal, when I bite into the cherry pie, my lip curls a little. I can't help it; I'm wired that way.
So, does everyone agree that I should not only reveal that I'm not crazy about cherry pie but also be honest with myself and not sugarcoat the potential impact it may have on me, no matter how hard I try to put it aside?
If I were to say to the contestants, “Under the circumstance, I cannot assure you that I can be completely fair and impartial. I'll do my best, but, in all honesty, it may impact me, because I've got a bit of bias against cherry pie,” would any of you think that makes me sound like an unfair person or weak-minded? Would it make sense for me not to judge the pies but go down the hall and judge the chili because I pretty much like all of the chili?
Well, this case has nothing to do with anything as lighthearted as a pie contest. This is a very serious matter. It is a lawsuit involving a car crash. I need to ask you about experiences, opinions, feelings or beliefs you have against that kind of case or parts of it, so we can talk about points of friction, like with the pie analogy.”
2. Locate
“How many of you have feelings against personal injury lawsuits, based on experiences, things you've read or heard, opinions, feelings or beliefs, some level of distrust or dislike, for any reason? How many of you have feelings against personal injury lawsuits?”
Do the same for topics on your potential bias list, such as:
- Feelings against pain and suffering/non-economic damages.
- Feelings against large verdicts.
- Feelings that someone who chooses to ride on highways exposed on a motorcycle, not wrapped in the protective cage of a car, must be at least partially at fault for their own injuries, even if they did nothing wrong to cause the crash, because they put themselves in danger for riding a motorcycle in the first place.
3. Eliminate
Go back to the person who sounded the most aggressive in their answers to the “locate” questions. Ask that person your cause question first. Here are some sample cause questions:
“Would it be fair to say, based on your feelings and beliefs against personal injury lawsuits, that we may be starting out with a strike against us in spite of your best efforts to put those feelings aside?”
“Would it be fair to say that you would have a leaning of the mind, in spite of your best efforts to put those feelings aside?”
“Would it be fair to say that you could not assure the court you could be completely fair and impartial? You'd try your best, but your beliefs may still impact you?”
Once someone models the honest response, ask how many of the rest agree, to any degree. Then, go to all those who raise their hand and ask,
“By raising your hand, did you mean to say, like Mr. Jones said, you too cannot assure the court you could be completely fair and impartial?
Early on in this jury selection process, you should explain to the jurors:
“When I say ‘would it be fair to say' or ‘by raising your hand did you mean to say,' that is my shorthand way to say what I think you are communicating to me. If I get it wrong, please tell me. I don't want to put words in your mouth.
I can do it the longer way, which is to ask, ‘What did you mean when you raised your hand?' and then ask you to tell me some more. Frankly, I'd rather do it that way. But it takes a lot longer, and I have quite a few topics like this to cover, and there are a lot of you. So, I do it this way to keep things moving. Is that alright with you? OK, just keep in mind, if I say something back to you that I think you meant to communicate, but I'm off the mark, will you tell me? It's important that we have clear communications and a clear record. Thanks. Is everyone OK with that?”
Social desirability bias with Shari E. Belitz
Shari Belitz started her legal career as an insurance coverage attorney, later moving to an insurance company where she managed complex mass tort litigation. She followed her passion and went back to graduate school to study forensic psychology, including advanced jury research and science. Now, she is the CEO and Founder of Shari Belitz Communications LLC, a company dedicated to teaching lawyers how to use social psychology to achieve favorable litigation outcomes.
Overall strategies
One of the greatest psychological obstacles that an attorney encounters in voir dire is the social desirability bias, a cognitive bias or mental shortcut used in human decision-making.
The social desirability bias posits that in the presence of others, people will respond to questions in a way that comports with social norms and expectations.
Research studies have indicated that two major components of social desirability bias are:
- Impression management — the purposeful presentation of self to fit into a situation or please an audience, and
- Self-deception — which may be unconscious, and is based on the motivation to maintain a positive self-concept.
Only when social desirability bias is effectively mitigated will it be possible to elicit an honest answer from a prospective juror in voir dire. An honest response is necessary to uncover any other biases that a juror may hold in favor of or against your client.
There are a few strategies to mitigate and minimize social desirability bias, including:
1. “Normalize” the concept of bias.
As the questioning attorney, speak about a bias you hold, e.g. “I have a very favorable impression of the trucking industry, as both of my parents worked in trucking, as well as one of my grandparents. I could be a great juror in most cases, but I would not make a fair juror in a case involving trucking, and that's OK.”
2. Use body language.
Use body language to participate in showing bias when asking a question, e.g. raise your hand while asking, “Who thinks large companies sometimes put profits over people?”
3. Ask strategic questions without absolutes.
Ask linguistically strategic questions that do not use absolutes, and instead use “hedge words” or phrases like “Would you have some difficulty…?” and “Could you easily…? or gradations like “strongly agree,” as they do not question the ability of the juror, but rather the degree of ability — for example, “Might you have some trouble?”
These strategies will give jurors a comfort level to answer truthfully by effectively mitigating social desirability bias, paving the way to uncover true attitudes and worldviews.
How to put these strategies into practice
“Would you have some difficulty believing large companies put profits over people?”
“Could you easily put aside the fact your wife is a doctor and recognize that sometimes doctors forget to warn their patients about the known risks of a surgery?”
“Would you strongly agree that corporate executives generally get paid too much in compensation?”
“As a mother to young children, might you have some trouble finding that a mother who was out of work made a wrong decision by leaving her child unattended while she went to a job interview?”
These questions are effective because they do not ask for binary absolutes like…
- “Could you be fair?”
- “Can you put aside XYZ?”
- “Would you assume…?”
...or question the ability of the prospective juror by saying, “Do you have the ability to be fair?” which increases the social desirability bias.
Studies show that using degrees rather than absolutes and not questioning the ability of the prospective juror leads to a decrease in social desirability and a greater likelihood of an honest answer. An honest answer that reveals enough of an attitudinal bias may be grounds for a cause strike, a peremptory if cause does not satisfy the cause threshold, or at the very least a better understanding of the attitudes and worldviews of the prospective juror.
Building trust with Kelly Hanker
Kelly Hanker is a trial lawyer at Carpenter, Zuckerman & Rowley. She represents clients throughout Southern California and divides her practice between personal injury and wrongful death litigation and employment law matters. Ms. Hanker was named a Super Lawyer Rising Star for three consecutive years, between 2013 and 2015.
Overall strategies
I recommend following four key strategies for a successful voir dire. They can be quickly summed up as FLEaT, or Fearless, Listen, Empathize (this work starts way before the trial and starts at home), and Trust.
1. Fearless.
If you are afraid of the “bad facts” of your case and you haven't focus-grouped them (among other techniques), you are going to miss out on the majority of the voir dire. Instead, prepare and truly dig in to the most essential items you should be voir diring on in order to bring out the jurors that cannot be fair-minded and get them off for cause.
You will use fewer of your peremptories this way, and you will also avoid undervaluing your case because you are afraid of what the jurors are going to say or the B.S. defense tactics. Without a prepared and thorough dive into questioning regarding the worst facts of your case, you will consciously or subconsciously be willing to settle the case before the trial ends, settle it for a lower value than the case is worth, and/or end up with a jury that has members who are not fair and neutral-minded.
This is why the concept of brutal honesty with yourself — and the introduction of this exact phrase at the beginning of voir dire — is essential.
You must show the jurors you are willing to be brutally honest with them and help them feel comfortable and safe to be brutally honest with you. In order to do this, speak from your heart, with love, and don't be connected to a script. Let it flow organically.
2. Listen
If you are thinking about the next question you are going to ask or standing in fear of some juror saying some horrible thing about your case out loud, you are not listening to the other jurors' answers to your questions.
You are also not likely making true eye contact with them, and they can tell that you are not really focused on what they're saying. Therefore, what you're doing is telling them that their opinion doesn't matter, and yet you're the one asking them to take time out of their lives (and now risk their health or much-needed income they have to forego during the trial) to care about your case and your client.
It’s not the right empathetic exchange.
You must listen like you truly care, and you must thank them or acknowledge their response each and every time, even if they say something terrible for your case or painful to hear.
If you only acknowledge the comments you like, you are showing the jurors that you cannot be fair-minded yourself, so consciously or unconsciously, they will not feel the need to be fair to you or your client, nor will they be rooting for you and your client to win or to want to do something good for them and help them.
3. Empathize
This is all about connecting with the jury as you're processing what they're saying and finding ways to connect the jurors to each other to start building a tribe — and this work starts way before the trial.
You must reach into the deepest, most vulnerable parts of yourself to find commonality, understanding, and respect for each and every juror in the jury pool. This work starts at home with true self-reflection, humility, going inward, meditation, therapy, group work, self-love and forgiveness, and ultimately love for others, regardless of who they are and what they represent.
You don't have to “fix” all the parts of you that you are ashamed of, but you have to be willing to look in the mirror and be open to a growth path that allows you to connect to the pain, shame, fears, joys, and anxiety of others so that you can receive anything any juror tells you and be truly thankful for their honest opinion.
Providing a soft space for even the harshest of views will change the character of the jury you end up with, but it all starts with you. Bring love and lightness to the experience, and let everything fall off you with a smile, positive energy, humor, and comfort. Meditate, do breathing exercises, or whatever is needed to put yourself in this state before you walk into the courtroom each time.
4. Trust
This starts with thanking the jurors after each time they speak, especially when they say things that are difficult to hear.
The other part of building trust with the jurors is making sure that you believe in your case wholeheartedly, that you are fair with them and open to their opinions even if you're setting them up later for a cause challenge, and that you come across as a real human being and an authentic version of who you are.
Jurors can tell when you're playing a role or putting them on. Such behavior breeds distrust. On the other hand, sharing a detail about who you are, or some aspect of your life when relevant or by analogy during the questioning process can be very humanizing if it is not manipulative.
Being human builds trust.
It will also help the jurors who can't be neutral in this case to be more honest and forthright about that fact, which will make it easier to dismiss them for cause and more difficult for the judge to try to “rehabilitate” them.
How to put these strategies into practice
1. Mini-Opening
If you can in your state, you must do a mini-opening. The purpose is to get out all your bad facts and voir dire on them.
2. Take Notes
During voir dire, you must have someone taking notes. This shouldn't be the person asking questions (you, in most cases). You also want to make sure to get exact quotes of what the jurors are saying, since these quotes you'll then use to get them off for cause.
If you don't have an attorney colleague or someone from your office to take notes, this can even be a law student or a friend.
3. How to challenge jurors for cause:
- Asking them if they can be fair is not enough
- “Strong belief”; “long-held belief” (use the standard and the actual words from case law)
- Your “truth” in this case
- Maybe this just isn't the right case for you (Brutal Honesty)
4. “Tell me more…”
Ask the jurors to “tell me more” when you know there is more of the story or their opinion on something that they are not yet revealing; this is particularly important in developing cause challenges.
Common voir dire mistakes to avoid
Beyond the strategies and questions you should be putting into practice during voir dire, it's just as important to understand what you should not be doing.
To help you better prepare, we've highlighted five of the most common mistakes trial lawyers make when it comes to voir dire:
1. Not passing the mic to the jurors
The point of voir dire is not for you, as the attorney, to dominate every conversation without letting the jurors speak up or fully answer the questions you're asking.
If you find yourself doing the majority of the talking, look for ways to “pass the mic” to the jurors to expand on their answers and offer even more context on why they've answered a question in a certain way.
2. Not following up after your initial question
This common mistake perfectly connects to the first. You want to make sure it's the jurors doing most of the talking, not you. One of the best ways to do that is to ask follow up questions after your initial questions are answered.
These follow up questions are where you can begin to uncover the real details and rationale behind why a juror feels the way they do.
3. Not speaking to every juror
At the end of the day, the potential jurors you're questioning are real people. If you're focusing all of your time and attention on a small subset of the group, you run the risk of upsetting the jurors you're ignoring.
Because it's entirely possible the people you choose not to speak to end up as part of the final jury, by simply not speaking to every juror, you could find yourself starting from behind when the jury trial itself begins.
4. Not tailoring your questions to the specific case itself
Having a collection of go-to voir dire questions you can rely on to identify potential biases is smart, but you also need to ensure the questions you ask connect to the case itself.
Instead of sticking to your sample questions word-for-word every time, spend some time before the voir dire begins, adjusting these questions to align with the context of the case. That could mean adjusting your analogies, repositioning your phrasing, etc.
Which leads us to the fifth common mistake:
5. Not showing up prepared
Doing your homework in advance is a must.
No matter how experienced you are, preparing your questions is still a crucial step. You'll walk into the room with even more confidence, and you'll already know which direction you want to take your follow-up questions.
Wrapping up
If you're ready to master the voir dire process, use the strategies and examples we've shared today as your launch pad. Learn from them, remix them to align with your own personal style, and keep potential biases out of your trials.
To wrap up, we've pulled together three key takeaways from the experts:
- Educate potential jurors on how bias actually works using analogies and stories
- Avoid absolutes like “Can you put aside XYZ belief?” in your questioning
- Embrace the concept of brutal honesty with yourself and potential jurors
