This article looks briefly at what I refer to as “old school” versus “new school” voir dire.   I give credit to David A. Ball, Ph.D. for many if not all of the approaches discussed here.  I have learned a great deal from the reading, studying, and applying of Dr. Ball’s writings and methods regarding voir dire and damages.  I highly recommend his book “David Ball on Damages” as a must-read for any trial lawyer.

Old school voir dire assumes that the point of voir dire is to put as much spin on as many of the facts of the case as possible.  It attempts to persuade and even  (if you can get away with it) precondition jurors.  It assumes that one side or the other – through personality, oratory skills, or shrewdness – can actually persuade jurors.  Frankly, the old school approach is egocentric and naive.

I have watched and listened to attorneys conduct voir dire by basically giving a version of their opening statement through self-serving close-ended questions.  And, important issues for trial are usually addressed in the same manner.  For instance, on the issue of awarding damages for pain and suffering, an old school approach would state, “It would be unfair to serve on this jury if you simply are against money for pain and suffering.”  Jurors are then asked who agrees with the statement, however, they are not likely to express their true feelings.

New school voir dire views voir dire primarily as an information-gathering process. It is built on the premise that it is paramount to identify potential jurors that may or may not be predisposed to view your case favorably.  This approach does not seek to inform or persuade but to learn, and, in the process, convey exactly what you want the members of the jury to believe: that you listen to them, that you are confident, and that they can trust you.

Under a new school approach you must accomplish three things with the members of the voir dire panel.
•    Make them feel comfortable
•    Get them involved
•    And get them talking

In each case you will have specific issues that should be addressed and discussed with the panel.  These issues should be limited to as few as possible, no more then three or four.  You should utilize specific methods when addressing the specific issues that are important to your case.
•    Ask open-ended questions: start your sentences with “why”, “what”, “how”, “tell me”
•    Ask how the panel or individual jurors “feel” about certain issues
•    Use plain English
•    Never argue
•    Create an atmosphere where it is okay for a juror to say something that you don’t like and that everyone knows you will not like
•    Pay attention

Most panel members are nervous.  They don’t really want to talk.  And they don’t particularly want to be chosen to sit on a jury.  It is your job to engage the panel and find out how they feel on your key issues in such a way that gets them talking more than you.  When I began practicing law, my friends and I referred to this approach as “playing Oprah.”  The point is to get the members of the panel talking to you, to each other, and to engage in the conversation and issues the same way that Oprah would engage her audience.

In one of my first trials a young man stood up at the beginning of voir dire, while shaking his fist at me, and informed everyone that “…all these personal injury lawsuits are just get rich-quick schemes.”  The judge excused the panelist for cause, had the bailiff escort him out of the courtroom, and instructed me to proceed with my voir dire.  This guy was very hot and it was very startling both to myself and the other members of the panel.  There were about a million responses I could have had to that event.  What I did went something like this:

Folks, Mr. Smith has some pretty strong feelings about these issues.  And while he is not here to tell us, and for that I want to thank the bailiff (to much laughter), I will bet you that Mr. Smith’s views come from experiences that he has had.  I mean we don’t check our life’s experiences at the door when we walk in here.  In fact, some people have feelings like Mr. Smith because they have a hard time with the idea of awarding money for pain and suffering.  My father does.  Maybe some of you do…maybe some of you feel a little like my Dad?  Who feels that way, or maybe just a little in that direction…?  Let’s talk about this…

From this point I was able to begin a discussion of awarding money for pain and suffering and engage multiple jurors.  This was a key issue that I needed to address.  What I did was not perfect, but what I attempted was to validate Mr. Smith -  not his extreme views, but that he had those views and that was okay.  The trick was to do this in such a way that the panelists would feel that  (1) I’m a nice guy who really wants to listen to them, and (2) they should be comfortable talking about their views on this issue even if they say something they know I won’t like.  Mr. Smith was a jerk; he was rude and threatening.  But my Dad seemed harmless.  So, I gave them my father to identify with in order to get them talking.   It worked.

At every opportunity you should attempt to be friendly, open, respond to what panelists say with nods and approval, and always follow up with an open-ended, “why” or “tell me about it.”  Of course, there are numerous other methods and techniques that can be employed under a new school approach to voir dire – many are dependent on the type of case and particular issues involved.  It goes without saying that you should know your judge, know her procedures and the types of questioning that are allowed during voir dire in her courtroom.  If the basic principals that I have outlined here are used throughout your voir dire, you will have a better chance at learning as much as possible about how potential jurors feel and think on the issues that are most important to your case.