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Voir
Dire and Jury Selection
INTRODUCTION
(continued)
Personally,
I agree with these contemporary findings because I believe the early
jury studies were seriously flawed, and the approach derived from
this early research has been overrated and over-applied. I also
believe in the adage, "seek first to understand then to be
understood."
I am, however,
also a realist. After working with lawyers for almost ten years,
I know there is no way they will avoid advocating their position
during voir dire. I also know that jurors need and want some information
about the case at hand. As a result, I encourage lawyers to maintain
an 80/20 balance: 80 percent information and 20 percent indoctrination.
INFORMATION
GATHERING
To better explain voir dire as an information gathering exercise,
I draw on a national survey of lawyers conducted a few years ago
by Zagnoli McEvoy Foley LLC. We asked, "What are your most
and least favorite parts of trial?" Lawyers responded that
cross-examination and closing argument were the favorites, while
jury selection was the least favorite. This was not surprising on
account of the fact that voir dire and jury selection present a
unique set of communication challenges that other parts of the trial
do not. For example:
– Group dynamics cause people to act differently than they
normally do.
– Stereotypes and statistics do not work very well when applied
to small groups.
– People mask their nonverbal behavior because they know they
are being watched.
– People mask their true opinions in group settings.
– Time is limited.
– The courtroom is a formal, intimidating environment.
– Folklore about lawyers is intimidating.
– Jurors do not choose to be in the courtroom.
– The pressure is high. If the attorney is wrong, he/she risks
losing the case regardless of his/her best efforts.
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