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Keys to an Effective Voir Dire

As law students learn from their textbooks, “voir dire” comes from Old French and means “to speak the truth.” And as they learn from courses and colleagues, the point of voir dire is to find out if prospective jurors harbor a fixed bias against one’s client. Those notions are incredibly consistent with what we, as trial consultants, are trying to achieve. However, once in practice, attorneys are often taught that jury selection is a great time to begin “priming” jurors to their case. And fears about “poisoning the panel” creep in and make attorneys hesitant to actually allow jurors to speak the truth. Both of these practices—while common—tend to inhibit the usefulness of voir dire.

In our ideal jury selection, 1) attorneys focus less on argument and more on listening to the jurors and 2) jurors are encouraged to speak freely even—in fact, especially—if their opinions are counter to our case. To the first point, we understand the fear of waiting to argue your case—and agree that there is some vital information you should impart during voir dire. But the primary voir dire goal should always be collecting information rather than providing it. When faced with presenting potential jurors with the best parts of your case or getting reactions to the worst parts, the latter is much more valuable.

It is a difficult mental shift to incorporate a few case themes into voir dire questions while leaving the remaining arguments for openings. And it is even more difficult, we grant, to be comfortable with encouraging jurors to speak freely. Almost instinctively, attorneys want to stop—and correct—jurors who express negative opinions about their client or case. In fact, voir dire questions are often designed to force an agreement: “Don’t you think that…?” Or, when a juror begins to express a contrary opinion, they are interrupted and corrected: “But wouldn’t you agree that…?”

Some negative opinions do need to be handled privately, such as extreme, case-specific opinions (“My mom took that drug and has never been the same”). But it is vitally important to allow—and even encourage—jurors to express general, negative opinions about your case or client (“I don’t think drug companies care about people; I think they hide the dangers of drugs”). By expressing those opinions, jurors are not only identifying themselves as receptive to your opponent, but they are providing the opportunity to identify other jurors who share their views, but who would not have spoken up on their own (“Mrs. X believes that drug companies don’t care about safety—only money. Are there others who feel that way?”).

We recognize that allowing such public expressions of negative opinions about your case can be frightening. In fact, many attorneys have been taught that doing so is tantamount to endorsing the opposing themes or allowing jurors to “contaminate the panel.” But jurors’ opinions and belief systems are built on a lifetime of experiences and are therefore, deeply entrenched. They are extremely unlikely to be influenced or swayed by comments from other jurors during voir dire—or by a few weeks of argument during trial. This mental rigidity makes it imperative that opposing jurors feel comfortable enough during voir dire to identify themselves, so they can be removed.

There’s an oft-repeated adage that trials are won in jury selection. Although we believe that it takes a lot more than a great jury selection to be successful at trial, trials can definitely be lost during jury selection. Voir dire provides your one chance to listen to jurors before the verdict. And if they have negative opinions or beliefs about your client, it’s much better to hear those opinions during jury selection than when the verdict is read.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Fighting The Battle in Front of You

Anyone with extensive trial experience understands the value of calling on that experience when entering into a new litigation or trying a new case. Good attorneys see patterns and commonalities across cases and recognize the benefits those patterns provide. Seeing patterns allows an attorney to quickly assess a new case, to figure out a good place to start researching, and to identify issues that are likely to be problematic. Because such experience eliminates the need to reinvent the wheel for each case that comes along, it’s not surprising that both attorneys and trial consultants often draw comparisons between the current litigation and past litigations. And while those comparisons are largely beneficial, they also contain pitfalls.

Unfortunately, such extensive experience can cause you to close your mind too early on a case. By assuming that this case will fit into the same pattern as previous, similar cases, you can miss vital differences—some of which can completely change the trajectory of the case. Overlooking those differences—the unique challenges present in this case—can leave you blindsided by how differently jurors react to it than they have to cases you have tried before. But how can attorneys and trial consultants keep their minds open? How can you manage to look at a case with fresh eyes when you can’t un-know what you know?

A method that we find useful is contemplating this story: A fire chief with decades of experience tells an interviewer: “The next fire I walk into, I won’t know anything.” Surprised, the interviewer pointed out his position as fire chief and his decades of experience. But the chief explains: “When I arrive on scene with that mind-set, I glean more new, specific information from others. By affirming uncertainty, I get more people to own what they see and to communicate it. Because while we have all seen a lot of fires, none of us has ever seen this fire.”

Adopting the mantra, “I’ve never seen this fire before” reminds us that each case—with all of it nuances and concrete details—strikes jurors differently. Cases may have commonalities but nonetheless, the themes and arguments that worked in the past will not necessarily work here. The jurors who responded so favorably to you before may not be the jurors you want now. Different hot button issues will be present and different emotions will be evoked. Being mindful of those things allows us to balance our previous experiences and successes with discovering what makes this case different. And those differences must be investigated in order to find the optimal strategy for this litigation.

So while it’s wise to remember the lessons you’ve learned from the past, it’s also important to remember that each new case/litigation is its own fire—with its own flashpoints, its own patterns, and its own dangers. And the best way to be successful in this case, is to make sure you aren’t still trying the last case.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Know Your Opponent’s Strengths

During trial preparation, it is easy, and tempting, to hone in on the weaknesses in your opponent’s case and discount their strengths. Easy, because the weaknesses often highlight themselves and tempting, because developing arguments to expose such weaknesses comes quickly to experienced trial lawyers. While we would absolutely encourage you to capitalize on those weaknesses, we would also recommend 1) garnering feedback from multiple perspectives to develop a detailed understanding of the opposing cases’ strengths and 2) focusing the majority of your trial preparation on analyzing and responding to those strengths.

In spite of the intense satisfaction that comes with unequivocally proving an adversary wrong, dismantling their weak arguments may not be enough to discredit their strong arguments. Oftentimes, cases are assessed using a formulaic approach—which tends to conceive of trials as a set of building blocks that will collapse if you knock out some of the blocks. Unfortunately, juror decision-making isn’t that regimented or linear. Instead, we would recommend an approach similar to that of a football team scouting out their rival or a boxer preparing for a specific opponent. In both cases, exploiting their opponents’ weaknesses is only a part of the plan. They recognize that the key to victory is appreciating and preparing for their opponent’s strengths.

Because our belief systems and perspectives seem so right to us, it can make it difficult to appreciate that a rational person, upon hearing our explanation of the facts, could draw a different conclusion. And since we tend to surround ourselves with people who share our perspectives, it is not unusual for us to work with trial teams where almost every member shares a specific view on the case. In those circumstances, it is extremely common for different perspectives—whether that’s from a trial consultant, other members of trial team, or mock jurors—to be dismissed or attributed to a lack of a full understanding of the facts.

We would encourage you to intentionally resist that type of “groupthink.” Much in the same way that football teams have practice squads that mimic the strengths of the opposing team and boxers enlist sparring partners who are strong in the same areas as their opponent, we would suggest surrounding yourself with people who have different—and conflicting—perspectives as you prepare for trial. While this structure does force you to confront the hard truths associated with your case, it allows you to hear them from a team member prior to trial, rather than from a juror after the trial.

One of the most valuable things you can do during trial preparation is to create an environment where an appreciation for the opposing arguments is welcomed and encouraged—not dismissed or frowned upon. So seek out trial consultants who will point out strong aspects of the opposing case. Encourage that type of thinking in your trial team. And be receptive to it when you hear it from mock jurors. They aren’t simply playing devil’s advocate, not being a team player, or misunderstanding the facts. They’re giving you a scouting report—and in turn, you’ll be prepared for whatever is coming.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict d

What were those jurors thinking? Ask them.

Are there jurors you believe are always risky picks? Is there a strategy you used before, but now avoid? Attorneys often tell us about a type of juror they’ve been burned by or a strategy they used that jurors hated, but in most cases, those conclusions are based on the results of the trial—and on their feelings of uncertainty surrounding that juror or strategy. Rather than guessing about what went wrong or assuming you know which jurors were for/against you, we would recommend going straight to the source—the jurors. Although some judges balk at juror interviews, we would argue that their value makes it an issue that is well worth raising.

Making assumptions about jurors, strategies, and witnesses happens naturally and understandably. When you are trying a case, you view every aspect of that case—the jurors you want, how the case should be presented, how the evidence comes in—through the prism of your life and trial experiences. And when a verdict is reached, it is impossible to remove the filter borne of those experiences, including any doubts and uncertainties, when trying to decipher the verdict. So it’s easy to attribute a loss to that witness you were unsure about or a win to that juror you loved. But those attributions—while deeply held—may be completely inaccurate.

Unfortunately, such inaccurate attributions don’t simply color how you view cases in the past. They become integrated into your “trial filter” and begin to inform future trial decisions. As you try more cases, your speculative post-trial analyses start to have a cumulative effect: there is an ever-growing list of jurors you don’t trust, strategies you reject, and arguments you avoid. But there is no assurance that your trial choices are based on accurate information. Should all elementary school teachers really be avoided? Or was there something about that teacher’s life experience that made her resistant to your arguments? Did jurors really hate that witness you were so unsure about? Or did the case turn on a piece of evidence that you thought was insignificant?

Post-Trial Interviews answer those questions. They allow us to draw accurate conclusions about what went right/wrong and make sound adjustments to our strategy. And we have never done Post-Trial Interviews where we did not learn something unexpected and valuable. They provide insight into (1) what actually influenced the jury’s verdict, (2) how many/which jurors were receptive to your arguments, and (3) the tenor and dynamics of the deliberations. This is obviously helpful information if the trial team lost, but even with a win, you may find out that jurors responded to evidence you discounted and ignored evidence you were sure would sway them.

Post-Trial Interviews often inform your future trial techniques in more global ways as well. It is not uncommon to find out information about jurors that you would have loved to know during jury selection—which can lead to changes in how you phrase, order, and ask voir dire questions. And regularly, attorneys are surprised and irritated to learn that jurors seem to have no recollection or an improper recollection of the jury instructions that they were hanging their case on. Such juror revelations can lead to a better understanding of how jurors analyze and process information and what legal arguments they do/do not find meaningful.

It is natural to want to avoid things that have not worked for you in the past. But that inclination is only helpful if you are avoiding those things based on accurate information. So talk to that elementary school teacher before you decide that you find teachers risky as jurors. She may have been terrible for you…or she may have been the one person who kept damages in check.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Be willing to lose the mock to win the trial.

Mock trials are often a key part of preparation for trial. Although mocks can never exactly replicate a trial, they do provide valuable information about themes, arguments, and key pieces of evidence and witness testimony. The goal of any mock trial should be to learn as much as possible – both about your case and about the opposing case. And the stronger the opposingcase presentation, the more you will learn.

Carpenter Trial Consulting: Expert Consultants, Expert Advice

Carpenter Trial Consulting: Expert Consultants, Expert Advice

But we’ve found that trial attorneys, accustomed to a “if you win, I lose” context, are better able to embrace this concept in theory than in practice. Over time, they become invested in their position and their arguments. And knowing their client is going to be watching and judging their performance produces, understandably, a desire to win. We’ve seen that desire manifest itself in many ways, both subtle and obvious.

Whether it’s assigning the opposing case to more junior, inexperienced attorneys, stacking the deck by excluding inflammatory evidence, or presenting evidence or arguments that would not be allowed at trial (or in some cases, aren’t even true), shifting the balance of the mock in their favor may boost an attorney’s confidence and performance in the mock trial, but it will reduce the amount of valuable information gleaned from participants. Even more concerning, it can give the client false expectations about the hurdles awaiting them at trial.

Ideally, the mock trial is approached like an experiment where we test the worst-case scenario, give the other side the strongest, best-case representation, and see how jurors evaluate the case. And the results will be gleaned not just from how jurors vote, but from what they say: What arguments did they adopt/reject? What arguments did they generate on their own? What arguments stirred emotions? Which points did jurors really dig in on? What were they confused by? This information is what guides changes to themes and strategies, and ultimately, influences trial outcomes.

When approached correctly, mock trials can add enormous value. But realizing that value requires the following:

-Attorneys must be able to adopt an experimental, not a performative, mindset. They have to be willing to face losing the mock.

-Attorneys must trust the trial consultant designing and assisting with the mock trial to educate and remind the client that a trial team that loses a balanced mock is providing more value than a trial team that stacks the deck and wins the mock.

In short, learning to fail in a mock always beats failing to learn in a mock.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

Let your witnesses guide your themes…not vice versa.

As trial teams prepare for court, theme development is usually an early focus while witness preparation comes much later. And while attorneys typically approach these tasks separately, witnesses are expected to support the developed themes at trial. But often witnesses aren’t comfortable with the themes, and don’t believe the themes tell their story. Indeed, it’s not uncommon for us to spend many hours in strategy meetings with attorneys regarding case themes, only to find out when we begin meeting with the witnesses that their stories are inconsistent with the themes the trial attorneys have already constructed.

Preparing for trial in that order—first themes, then witnesses—creates a witness/theme dynamic that can play out in one of three ways at trial, only one of them optimal:

-In really rare cases, the witnesses are completely attuned to the themes that have already been prepared and can wholeheartedly support them.

-In rare cases, the themes are presented as the attorney desires and the testimony as the witness desires. This uncoordinated approach confuses jurors and is not likely to be successful.

-More often, the attorney emphasizes his/her themes and only questions the witnesses about the portion of the story that is consistent with those themes. The witnesses are absolutely testifying truthfully—and have never been asked not to—but their discomfort with not being able to tell their full story shows. Because they feel boxed in to an incomplete story, they come across as less credible than they otherwise would, and are not as effective as they could be.

Our solution to this friction: Meet with your witnesses first and let the witnesses guide the themes.

In our experience, even good witnesses will not be effective if 1) they don’t feel heard by the company and the trial team, and 2) if they don’t feel completely comfortable with the themes they are endorsing. If your witness is expected to carry the case, the themes have to make sense to them and be consistent with their story. If they aren’t comfortable with the themes, then the witness won’t present well, even if they have the potential to be a great witness.

So, talk to your witnesses. Let them tell their story. And when you have a full understanding of what their story is, let your themes naturally develop from that. We acknowledge that preparing a case in this order requires more effort than the traditional way, but the result will be a higher level of comfort for the witness when testifying and an overall stronger case. Because a comfortable witness is a persuasive witness.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Yes, you really should respond to that inane argument.

In any disagreement, it’s incredibly tempting to only respond to the arguments that you think are persuasive and simply dismiss those that you find absurd. Unfortunately, as can be easily seen in any political debate, that often leaves both sides talking past each other – and never actually addressing the other side’s concerns. Unless and until you actually address the opposing arguments directly – even those you think are ridiculous – you are simply “preaching to the choir.” And while it is important to provide ammunition to those who are on your side, ideally, you would like to persuade those who are on the fence or against you.

To highlight this issue, think about a political issue you feel strongly about. Now consider the opposing arguments on that issue. Do they actually address your concerns? Or do you feel they are missing the point entirely? Are you persuaded by arguments that don’t address your concerns?

This same dynamic surrounds practically every sensitive issue that people have a vested interest in. Consider vaccines, for example. Vaccine resisters believe that there are real and widespread risks of vaccines that outweigh the risks of childhood diseases. They fear that vaccines will cause permanent injuries and changes to their child. Vaccine advocates emphasize the seriousness of those childhood diseases and our social responsibility in protecting vulnerable populations who cannot be vaccinated. The advocates’ approach is typically to scoff at anti-vaxxers or to focus on educating them. However, their arguments are rarely persuasive to those who oppose vaccines, because they dismiss the fundamental force driving their position – fear of causing harm to their child – instead of addressing it.

In fact, studies designed to examine what arguments actually influence anti-vaxxers’ thoughts about vaccines have found that parents’ vivid and detailed descriptions of their child actually getting those diseases (measles, whooping cough, etc.) are most effective. This is likely because those personal accounts speak to the fear in vaccine resisters – and elevate their level of fear concerning childhood diseases to a point that balances out the scales a bit more.

Every time you go to trial, you are introducing new topics to jurors and asking them to become invested in the issues – which they do. But to create the greatest chance that they will become invested in your position, you can’t simply hope they think like you and will be persuaded by the same arguments you are persuaded by. You should consider that some jurors may have a different perspective – one that you would like to change. So next time you don’t want to bother addressing an opposing argument because “no one will ever believe that,” remind yourself that someone will. And he/she may be on your jury.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Using an analogy at trial is like…oh, just don’t do it.

When teachers want to explain a new concept to students, they often offer analogies: teaching fractions in terms of pieces of a pie or likening the brain to a computer for the body. Scientists rely on analogy to help themselves think: for example, Robert Boyle, the founder of modern chemistry, used analogy to conceptualize and explain “local motion,” the movement of invisible particles. Analogy, and its relatives the metaphor and the simile, is a powerful tool for explaining new and complex concepts and facts to a lay audience. It’s not surprising that lawyers turn to analogy in the courtroom to explain causation or complicated facts.

But using an analogy in the courtroom is like having a gun in your house: it can protect you, but a burglar could take it by stealth or force and use it against you. And that analogy highlights the problem with analogies. Analogies are never 100% fitted to the new situation, and that difference between analogy and situation, especially if the analogy makes use of a politically or emotionally charged example, can distract jurors and derail the discussion. The gun analogy likely caused most readers to react to that statement and thus, distracted them from our main point: be very cautious when using analogies.

You can see the distracting power of analogies in almost any conversation or discussion, including the example below. In our research on lay attitudes towards vaccinations, we analyzed reader responses to a blog post by Maria Konnikova, a writer for the New Yorker. Konnikova was writing about a study that explored the effectiveness of particular ways of communicating information about childhood vaccines to parents; the benefit of childhood vaccination was not up for discussion. In the course of her post, Konnikova made two analogies: one to the use and regulation of raw milk and another to Galileo as a pioneer in science. There were over 340 comments and of those, only a handful directly addressed the topic of the post, communicating with parents. Of the remaining comments,

1) 124 argued the pros and cons of childhood vaccines

2) 83 argued the pros and cons of raw milk

3) 46 commented on Galileo.

It’s tempting to want to explain complexity with an analogy, but “likeness is a most slippery tribe,” says the Stranger in Plato’s Sophist, and we agree. Whatever analogy you’re contemplating, we bet it can be turned inside out, and you can be sure the opposing attorneys will try their hardest to do so. And if they can’t, they can always fall back on dismissing it: “Opposing counsel likened this X to a Y, which is totally wrong and demeans X.” It’s a rare analogy that can hold up under that scrutiny.

And it’s a rare juror who is persuaded by an attorney-generated analogy (they can be persuaded by their own analogies, but that’s another post). So instead of spending all of your time trying to come up with the perfect analogy, spend that time focused on what you want the jurors to focus on: your case.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

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