Mastering Voir Dire: Finding and Eliminating Overt Bias

Joseph O'Neill

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— Updated on June 22, 2020

Preparing your expert witness for the stress of testifying and cross-examination during your client’s trial is clearly important.  On the other hand, making sure the jury is willing to listen to your expert’s testimony in the first place can make all the difference as well. As your best opportunity to ensure a fair jury, voir dire can be a great chance to make a positive impact on your client’s case. Or it could be a wasted opportunity that may turn the remainder of the trial into an uphill battle.

Below, we’ve caught up with Erik Gunderson, an attorney with the California-based firm Charlton Weeks LLP. He shared his best advice for attorneys who want to make the most of this crucial stage in their cases.

 


 

The most important thing to do during voir dire is to sort out the worst possible curses for your side. Those are people who demonstrate both leadership potential and sympathy for the other party.

That doesn’t necessarily mean that they’re going to be people who identify with the other party. It means people who are likely to be sympathetic to someone like the other party. For instance, I have found in sexual harassment cases that male jurors tend to be more judgmental of the typically male defendants. Conversely, female jurors tend to be more judgmental of the typically female plaintiffs. That seemed counter-intuitive at first, but I think it has a lot to do with fear and moral superiority: “I would never treat my own employee that way,” or “I would never be so careless as to let myself be in a situation like that.” Be on the lookout for emotional cues suggesting that sort of unconscious self-conditioning.

You also must know potentially embarrassing things about your own client that are likely to be discussed during the trial. These are facts that may not be directly relevant to the subject matter of the case, but there are some things that jurors will attach moral or emotional significance. You must use voir dire to educate the chairs to disregard them. As well as to sort out the chairs who cannot.

The specific questions designed to get at this information matter less than the ability to tease out the juror’s generalized level of intelligence, and generalized emotional character. Most judges these days keep attorneys on a very short leash regarding how factually specific questions can get. Unless you know from direct experience that your judge will give you wide latitude, plan on asking questions with a broader focus about issues of fairness, ability to understand burdens of proof, separating relevant from irrelevant information, and withholding forming a final opinion until after you and your client have been heard from.

Another thing to pay attention to is the juror’s willingness to serve. I have found that making a juror serve who clearly does not wish to, even if the judge argues strenuously to the juror and counsel that the juror should serve, usually produces a bad result during deliberations. Most people find jury service inconvenient and would prefer not to do it. However with minimal lecturing, many can be convinced to serve.

On the other hand, some are fearful of being in court for any reason. Some do not understand what it is to make a decision or a finding of fact in a formal setting. Some are sensitive about being away from work. That person will inevitably be the teacher who does not vote your way. Better to thank and excuse someone from the veniere than to convince every member of the jury but one. Or to have that one person be the only one who didn’t want to be there.

These are the sort of jurors to hold out after having half-listened to long lectures from the judge about what he or she was supposed to be doing, ignore instructions about keeping an open mind and simply picking one side or the other from the beginning, or simply out of spite for the entire process. Let them go home, there are willing jurors ready to take their place right there in the veniere.

To sum up:

1. Find and eliminate overt bias against your client
2. Find and eliminate potential leaders who give emotional cues of voting against your client
3. Find and eliminate people who do not demonstrate the intellectual or emotional ability to understand your side of the case
4. Eliminate jurors who signal that they don’t want to be there at all

If you have any peremptory challenges left after doing all of those things, consider yourself ahead of the game.

  1. Outstanding white papers. I download and read every one – and keep them on hand to re-read before every deposition and court appearance. Please keep the articles flowing.

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