Plan Your Playbook for Voir Dire and Jury Selection
In preparing for voir dire and jury selection it is vitally important that you have a plan. The plan I follow I call my “playbook.” —Robert Eglet
Preparing Your Playbook: Initial Steps
I prepare a playbook for each and every case. It’s a very specific book I prepare for each case depending on what the case is about and the players involved. For example, is this a large multinational corporation we’re suing in a product manufacturing case where their drug produced significant injuries? Is this a case where the judge is going to allow into evidence whether the FDA has approved the drug or will he/she exclude that from the evidence? How have the pretrial motions affected what evidence will be presented? Answers to questions like these will vary depending on the jurisdiction you are in and which judge you have. You have to know all of these case aspects before you start jury selection and how this information will be used in order to craft your written questions as well as your voir dire strategy.
Know the Jury Selection Method
You have to determine the method of jury selection you are going to utilize and know what method the judge and that particular jurisdiction use. I try most of my cases here in my home state of Nevada where the vast majority of the judges use the Modified Arizona Method for jury selection. Other jurisdictions use very different methods and you need to know this in order to best prepare your approach for jury selection. This is also part of what goes into your playbook for preparation and you must fully understand these details long before the trial and jury selection start.
Jurisdictional Rules and Processes
You also need to know the jurisdiction’s rules and processes. You must evaluate their statutes and case law on what they permit during voir dire. Some states allow much more progressive, more liberal voir dire by counsel than other states. Most federal courts don’t allow any voir dire by trial counsel. So you have to know these rules.
Jury Seating for Potential Jurors and Alternates
The position of jurors in the jury box is critical. So, you also have to know how the jury will be seated. If it’s the Modified Arizona Method and there’s going to be 8 jurors and 4 alternates then you need to figure out how many people will be in the box to start out with and understand where the alternates are going to be seated. Will they be in the last 4 seats? Or will they be mixed in there with the rest of the jurors? In fact, some jurisdictions have the clerk draw numbers out of a jar to determine who the alternates will be! Some jurisdictions tell the jurors who the alternates are and some do not. All of these factors must be understood and integrated into your playbook or otherwise, you will not have an effective game plan and winning strategy for voir dire.
A Proven Playbook
Learning how to effectively use this type of playbook in trial will help you tremendously. How do I know that this works and that it’s effective? First of all because I’ve won over 97% of my cases that have gone to trial –a number that’s in the hundreds– and some of the largest verdicts in the country amassed over my career. In the last four years alone I’ve obtained in three cases, verdicts in excess of $1.2B using this playbook method of mine. The contents and scope of a playbook will depend on the size and the length of the case, as well as the types of due diligence and materials you’re going to need in order to effectively prepare.
Surveys, Focus Groups and Mock Trials
I engage in many activities that look like trial preparation activities but are really jury selection preparation activities. Some of which are: surveys, focus groups and mock trials. You really should be using all of these in conjunction with one another during jury selection preparation because they will help you determine juror profiles. These preparation tools can now be used for both large value as well as smaller value cases.
Juror Profile Determination
Determining a juror profile means finding out exactly what type of juror is acceptable or good for your case and what kind of juror is unacceptable or bad for your case. Using surveys, focus groups and mock trials will allow you to test your case themes and liability theory of the case but most importantly, it will help you determine from the data you collect, which of the jurors are probably good or bad for your case. As many are aware, jury selection is really jury de-selection, so in most of these focus groups and surveys you’re going to be getting information to help you understand who you need to keep off your jury. You may have to get them off for cause or expend a peremptory challenge, but by doing all of this it will give you the information and the knowledge that you need to know, so you can successfully challenge these people for cause and have them excused without having to use a peremptory challenge. The types of questions that are being considered for use in the case are also tested. These are some of the things that I do well in advance of the trial in order to prepare for jury selection and the voir dire process.
Plan and Prepare for Voir Dire
So we now know that it is vitally important to have a plan and to employ a playbook when preparing for voir dire. Over my career I have seen and continue to see so many lawyers stand up for voir dire and literally just wing it! They just get up and start asking questions. Sometimes they have some standard questions they use in every case that may not really be conducive nor appropriate for the case they’re trying and it’s apparent they haven’t thought about voir dire that much; for these lawyers it is an afterthought. You cannot do that and be successful in trial law nowadays. Years ago that may have been okay, but in today’s world, with the sophistication of the jurors that we’re dealing with, you cannot make jury selection an afterthought. With the impact that the Internet and mass media have had on the viewpoints of people, in today’s world people have very entrenched beliefs and opinions, so you have to spend a great deal of time on this subject. You have to take the time to prepare for voir dire, it’s absolutely crucial to your case.
Let’s assume that you’re going to get a jury questionnaire. It’s always better to work this out with the opposing counsel. Allow them to have the questions they want, because it’s going to do nothing but give you more information and insight about each juror. The more you cooperate, the more likely a) the judge will authorize the use of a questionnaire and b) the judge will allow the questions and give you a question you want. Which type of questions will you want? Well, basic demographic questions of course, and don’t forget some behavioral science and personality profile questions. When the defense has a jury consultant working with them, they are highly likely to agree upon the behavioral science or personality profiling questions. When they don’t have a jury consultant, they are likely to fight you on this because they’re not going to understand why you have these questions. In future articles I will explain and teach you how to evaluate, summarize, and understand what this type of data means and the impact it can have on a potential juror.
In the end, this playbook is really a framework. It’s a living, breathing document that changes with each case. The playbook has to be molded and modified specifically for every case because each case is different. Not only are there different types of cases but each case within a particular type of case is different. No case is exactly the same. So you have to learn (and I can teach you how to do this), how to modify that playbook for the specific cases that you’re trying. I have some methods that I use and processes that I have developed on how to do that. It’s not a rote thing…it’s a living, breathing document. It’s not something you can just take and say “ok here it is, here’s the magic document, now I can go do a jury selection and have great success just like Robert in every case.” It doesn’t work that way. You have to learn how to actually use this playbook in its most effective way and apply it differently for each case that you have.