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Listening and Open-Ended Questions in Voir Dire

March 27, 2015

Unlike lawyers who try to indoctrinate potential jurors during the process, I believe that the most important goal of voir dire is to obtain information about the potential juror.  Jury research shows that when you try to indoctrinate or shape a juror’s thinking about a case, you end up not only failing to achieve that goal, but you also raise the suspicion and resentment level of the juror.  A valuable goal in jury selection is to find out as much as possible about the juror’s beliefs and thoughts.  The more information you have, the better choices you can make in using your challenges.  What’s more, the detailed information about the individuals who are going to decide your case that you glean through the voir dire process provides you the option to change or supplement your trial presentation, if necessary.

In order to obtain the maximum amount of useful information, the most important skill you can develop and practice in voir dire is listening.  Listening is hard for many of us. Many of us like to lead the conversation and hear ourselves talk.  However, in voir dire it is essential to let the potential jurors lead the conversation as much as possible and listen to what the juror is interested in talking about.

You cannot listen effectively, maintain eye contact and be attentive to verbal cues if you are taking notes or reading from notes.  Leave the note taking to co-counsel or a legal assistant.  Too many times we listen with only one side of our brain.  The other side of our brain is engaged in looking at the juror information form or the questionnaire or thinking about something else.  When we do that, not only do we miss important information for follow up questions or miss subtle cues from the potential juror, but we also communicate to the juror a lack of interest.  The juror will be less likely to want to be forthcoming in providing detailed information as to what they believe or think.  In addition this partial lack of interest on our part affects our credibility with the juror.

Establishing as much credibility as possible with a potential juror is important.  When you are fully engaged and listening you convey compassion, attentiveness and interest.  Thus, e, some of the general rules for good listening are: (1) maintain eye contact; (2) avoid fidgeting; (3) nod your head; (4) be attentive to verbal cues; and (5) lean toward the person talking.  Listening  means not only hearing the words but also focusing on the tone, demeanor and attitude of the potential juror.

Once you determine that your goal is to seek information rather than to indoctrinate, your best tool for doing so is to pose open ended questions.  Open ended questions are designed to seek information that cannot be provided with a mere word or phrase.  Usually, open-ended questions start with “why”, “what” or “how”.  Closed-ended questions invite either a “yes” or “no” response or a response containing a single phrase, e.g., a fill-in-the-blank question and answer.  “Tell me about what your work day is like” is going to get you a lot more information than “What is your occupation?”

One of the best ways to get a juror talking, and thereby providing you with a good indication of their beliefs, is to consistently ask simple, all-purpose, follow up questions such as: “Please tell me about that.”  This allows the juror to talk about what is on their mind.  For example, in a car collision matter, you will likely ask, “Has anyone in your family been involved in a car collision?”  Assume the potential juror answers, “Yes.”  By simply responding, “Tell me about that,” you allow the juror to tell the story they want and it provides you with the opportunity to follow up on whatever story they tell with another, “Tell me about that,” or,  “Please tell me more about that.”  Never assume the juror has given you all the information.  Keep asking the potential juror to tell you more until you are sure there is no more information.  When the potential juror does provide additional information, listen -- do not interrupt.  Let them talk.  Also, never show disagreement or try to change their minds -- you cannot.  Especially, do not try to re-word a potential juror’s answer.  You will usually get it wrong and lose the opportunity to know what the juror is really thinking.  By allowing a potential juror to express their thoughts, without help, you will obtain more information about what they really believe.

You also need to give jurors permission, leeway, and the forum to give you the ‘bad stuff.’  You want to know now about their negative feelings about lawsuits, or about how plaintiff lawyers are ruining the economy, et cetera.  A good question model, which I acquired from David Ball, is the “Some folks think X, others might think Y, which group might you be closer to?” approach.[1]  For instance:

Q: Some folks have a little trouble allowing money for pain and suffering because money cannot make the pain go away.  Other folks think money for pain and suffering is OK.  Which group do you think you might be closer to, even a little?

No matter what their answer is, follow up with “Please tell me about that.”  This type of question and the follow up question, “Please tell me more,” allows and encourages the potential juror to think aloud in front of you.

I am convinced that effective listening skills during jury selection help establish us as the lawyer the jurors want to follow during the trial.  I found this quote, by Brenda Ueland[2], but I think it makes sense:

Who are the people, for example, to whom you go for advice?  Not to the hard, practical ones who can tell you exactly what to do, but to the listeners; that is, the kindest, least censorious, least bossy people you know.

We want the jurors to follow us during the trial, to view us as the listeners, as the kinder, least bossy lawyer.

[1] I highly recommend reading David Ball’s book, David Ball on Damages 3 - particularly the section on jury selection.  You will find lots of good ideas and techniques for open-ended questions.

[2] Brenda Ueland is the author of, Strength to Your Sword Arm: Selected Writings, and, The Art of Listening.


Presented at the Connecticut Trial Lawyers Association Civil Justice Foundation, CLE Seminar, "Pick 'Em & Win: The Art and Science of Jury Selection," March 20, 2015

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