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The winning approach: I approach jurors as if I were developing a friendship, perhaps even plunging headlong into a love affair. We can beseech jurors, beg, plead, threaten all manner of evil against the other, go on a hunger strike and threaten to give up chocolate, but unless the people to whom we make our presentation are prepared to receive it, indeed, want to receive it, we are simply blowing our puny breath into a gale. Every person has an opinion on everything from how the government should be run to how long kids’ hair should be. We’re experts on everything even though our expertise may be the product of what mama told us 40 years ago. If it’s our last breath, we’re going to go down with those ideas. Still, a person without an opinion is an idiot. Our minds were given to us to come to false conclusions on just about every subject. How dare anyone try to convince us otherwise? In some jurisdictions (notably the federal courts) judges do all the questioning of the prospective jurors. But some federal judges permit lawyers to do voir dire, and most state courts allow it. Lawyers hire experts to help them decide which jurors to exclude from the jury. I’m more interested in which jurors to include. How does it feel to be questioned when we know that the questioner intends to expose whatever fact or little secret he can pry from us in order to strike us from the jury? And who likes to be cross-examined? Nothing in this approach invites the prospective juror into the process. And that’s where we want the juror-with us. Moreover, since prospective jurors understand the exclusion game, they can play it as well with a total lack of candidness. Suddenly the lawyer has unwittingly seated jurors in the box who will vote against the lawyer at the first opportunity. The voir dire has a profoundly deeper purpose than to exclude those who are immutably biased against us. In subtle ways we want to open up the juror to new ideas, to our position in the trial and to be open to his or hers. Cynics like to call this brainwashing. That, of course, is not possible. No one can remove the stain of long-held opinions or prejudices from anyone, and it’s especially impossible to do so in the short time that jurors are questioned in the voir dire. A successful voir dire begins with being in the moment. This doesn’t mean to fly by the seat of our britches. I’m speaking of being spontaneous. It calls on our ability to listen to the other and to focus on what is happening, and the feelings that abound-both ours and theirs. Instead of thinking of the next question we’re about to ask we should be lost to the self, to the moment, to the other, to the magic happening around us. The trial lawyer should ask himself or herself: “What am I feeling at this instance?” Likely it’s anxiety, which is a diluted form of fear. “I’d rather not be here,” he or she may think. This is where the voir dire begins-at this moment. With us. With who we are. With what we feel. Then as if we’re speaking confidentially to our best friend as we sit on a log together in a small forest meadow we may begin: “I’m feeling a little scared. I guess I’d rather not be here.” We’ll follow our feelings and the feelings of the jurors like a friendly hound. In the moment we beseech ourselves and the jurors to tell us all, the good and the bad, for in the end it will all be good. Six simple steps There are six simple steps to a successful voir dire: These six simple steps exact from the lawyer the highest level of truth and fidelity. It takes courage because it begins with an examination of the self concerning our feelings on the troublesome issues being considered. Step 1: Identifying the issues we’re afraid of. In every case some issue lurks that we’re afraid of. In the criminal trial we may be afraid of race or in the civil case to ask a large sum for, say, a dead child. Or we may be afraid that a juror sees lawsuits as nothing but a shovel by which greedy lawyers scoop up huge piles of money at the taxpayer’s expense. The first step toward a successful voir dire is to identify the issues we’re most afraid of. Let’s listen to our guts; they’ll speak the truth. Let’s talk about our fears to our friends. Listen to their reactions against our case. What prejudices or opinions do jurors likely hold going into this case that spell doom? Step 2: Experience feeling the issue in ourselves. When we identify what we’re afraid of, we must ask ourselves: Why? Isn’t it because we have our own prejudice? It’s the discovery of the issue in ourselves that permits us to understand and deal with it in prospective jurors. Let’s suppose that in the trial of a criminal case, our client is black and we know what the answer will be if we ask the simple question, “Do you hold any prejudice or bias against people of African-American descent?” “Of course, not,” the juror will reply. We are all politically correct, down to the white marrow in our bones. So how do we get the juror to tell us the truth, if, indeed, the juror recognizes it himself? Let me tell you a story. When I was about 8 or 9 years old, Buddy and I wanted to discover a secret we’d heard about-that there was this mysterious difference between boys and girls. A couple of neighborhood girls, also our age, were with us in Buddy’s garage. “Would they show us the difference?” we wondered. “Are you crazy or something?” The fruitless dialogue continued for some time until I got an ingenious idea: “We’ll show you ours if you’ll show us yours.” It worked; the discovery was made! The preceding is hardly credible academic research. But truths are served up from simple human experience. And from the I’ll-show-you-mine-if-you’ll-show-me-yours paradigm, I illustrate that before you can expect people to reveal their feelings, their biases and prejudices, we must first be willing to reveal our own-openly and honestly. Let’s continue with the example of racial prejudice: Are we prejudiced? Not on your life. But our lack of prejudice is something we’ve probably taken as a truth: Racial prejudice is a bad thing. We are not bad persons. Therefore, we’re not prejudiced, or some such mental process. Black or white, all of us harbor some racial prejudice, and I distrust those who claim they are Clorox-clean. We’re uncomfortable with differences and nothing is more obviously different than the color of our skins. As a white person, I’ve never walked in the shoes of a black person (a disadvantage, indeed) and often distrust arises from a lack of a complete understanding of the other. Distrust leads to a kind of blanket prejudice of one intensity or another. No matter how we wish it otherwise, we’ll likely find ourselves among the masses of good Americans who believe we harbor no prejudice at all, but who actually suffer some form of it at some level. Hypocrisy runs deep, but it ought not find a comfortable home in us. So before we begin to question the juror we need to discover and acknowledge on a feeling level our own prejudice. And it doesn’t feel good. Step 3: Sharing our feeling with the decision-maker. We’re now ready to begin our voir dire by sharing our feelings with the jurors. Let’s see it as it may typically happen. The lawyer walks up to the jury, lock-kneed. He doesn’t know what to do with his hands, so he puts them in his coat pocket (as if cold) or grasps them behind his back (as if in handcuffs). Or he may have them clasped in front (as if protecting the family jewels). Begin by confessing He begins with the expected greeting: “Ladies and gentlemen of the jury.” His voice sounds like something plucked on a one-string violin, the string about to pop. He begins by telling them the first lie: “I’m here this morning for one purpose-to get a fair and impartial jury for my client.” Suppose the lawyer is afraid that, because his client is black, he will not be believed by the jury. But what about our own racism? Here’s how I might begin the inquiry: “Folks, I represent Johnny Jones here. I have to confess something to you. I’m afraid I’m prejudiced against black people.” This is a good time for silence, to let this awful truth sink in. Even the prosecutor is likely to remain silent; it’s not a time to object when opposing counsel is confessing his own prejudice. I would continue: “I don’t like my prejudice. I don’t even know where it came from. It makes me ashamed and I’ve tried hard to overcome it. But prejudice has a way of creeping back uninvited. I try to be aware of this. But sometimes I’m afraid I might not.” I’ve now had the courage to show the jury mine. It’s time for the jurors to show me theirs. Step 4: Invite the jurors to share their feelings. I look over the panel. “Am I all alone in this?” No one raises a hand. “Am I really the only one who feels this way?” Then I see a juror give me a slight nod and timidly raise her hand. “Mrs. Smith,” I say with true relief, “I’m so glad there’s someone else who’s had to deal with this issue. That took a good deal of courage on your part. Could you tell me a little bit about how you feel on this subject?” Mrs. Smith says with refreshing candor, “Well, I suppose that everyone has a little prejudice.” I want to draw her out. “Thank you Mrs. Smith. Could you tell me something about how you feel toward black people in general?” “I guess I’m just a little afraid of them. I don’t know.” Then to the panel: “Do any of the rest of you have any feelings similar to those of Mrs. Smith?” The ice has been broken. The jurors have discovered it’s all right to be open and candid. And a discussion begins. Jurors too good to be true We’ll encounter those who claim they have no prejudice at all. What do we do with them? Although they may, in fact, be prejudice-free, my experience is that usually those people are not in tune with their feelings or are so intimidated by political correctness that they’re afraid to admit any prejudice. They may be people who are patently self-righteous, or they may simply be lying. In the end, I want honest people, people who can feel, and especially those who are honest enough to show me theirs. I can trust them and because I’ve been open with them they’ve begun to trust me. We’re in this together. I may ask a juror to tell me how he feels about another juror’s response. For example, “Mr. Peabody has just said that he thinks black people are more prone to commit crimes than white people. Do you think that’s true?” When the juror says yes, spontaneity will rule. “That scares me. Maybe right now you see Johnny as guilty.” Of course Peabody wants to be seen as fair. “Give Johnny a trial,” he’ll say. But we may ask, “How can we give Johnny a fair trial if we suspect he may be guilty because he’s black?” We will talk about the presumption of innocence and we’ll likely choose those who admit some prejudice. The most dangerous are those who have embraced their prejudices so long that they have become a part of the person themselves. Let’s look at several other issues we are afraid of that often come up in jury trials. Consider the greedy lawyer problem. We’re always afraid of the appellation that society has placed on trial lawyers-greedy rogues who are destroying the system. We begin by admitting the truth: “Yes, I am one of those greedy lawyers you hear about. It’s hard for me to ask you for money for a dead child. It hurts me. But [looking up at the judge] his honor will tell you that money is the only justice I can ask for. No one goes to jail here. You don’t put Kiddie-Corp [the maker of a dangerous toy] in jail for its negligence. There’s no other justice but money. I wish it were otherwise. But I want all the justice I can rightly get for Baby Jane. I am greedy. How do you feel about that, Mr. Jones?” And an honest dialogue begins. Some believe that big verdicts mean insurance rates go up. Some courts won’t permit the issue to be aired with the jury. Yet the insurance industry has launched a national crusade against trial attorneys and big-money verdicts. How do we begin this trial on an even playing field? Assuming the judge will let us talk about this, let’s start by again telling the truth. “When it comes time for me to pay the insurance on my car I wonder if I can afford it. I’ve heard all about big verdicts causing insurance rates to soar, and it bothers me because I’m going to ask for a lot of money in this case. What do you think about that, Miss Haberstab?” Perhaps she says, “I think that big verdicts and you trial lawyers are the ruination of the country.” “I can certainly understand how you might feel that way.” Then I might ask, “Does anyone here question whether big verdicts have anything to do with rising insurance rates?” Blank looks from the jurors. “Have any of you heard that the big losses of insurance companies experience may actually come from the bad investments they’ve made in the stock market and they want to blame someone other than themselves?” Maybe a nod from Mr. Black. Following up on him: “Suppose, Mr. Black, I knocked on your door just before this case took up and asked if I could come into your living room and discuss the amount of money I’d like to get in this case. Wouldn’t you turn me into the judge and call the sheriff for jury tampering?” He agrees. “Do you think that insurance companies come into your living room though their TV programs and the like in the hopes of affecting the outcome of cases and increasing their profits?” He says that might be so. “My client’s never been to your living room to talk to you about it, has he?” Again the discussion can continue and the final question may be, “How many of you would agree that we’re not here to protect insurance companies and their profit? We are not here to protect ourselves. We’re here to provide justice for the parties in this case.” Jurors’ answers are gifts Step 5. Accept-and honor-the gifts the jury gives us. Remember, whatever answer the juror gives is a gift. It took courage for the juror to tell us the truth about how he or she feels. And the juror trusted us enough to tell us. We must honor that. And we need to thank them as we would any who have bestowed a gift on us. When the hurtful answer smacks us in the face other jurors will help us. We may turn to them and ask whether they agree with Mr. Bellows (who’s just said that if the defendant confessed, he’s probably guilty). Some juror will rescue us by saying, “He may have been coerced.” The gift-how much better to face the problem openly than to avoid the issue, risking that the jurors will crucify us in the jury room where we’re helpless to deal with it at all. Jurors must feel safe and invited to share themselves with us, in the end to become invested in the issues of our case. Step 6. Continue sharing our feelings and invite the jury to share theirs. Yes, but what about those cranky judges? Ask those judges who won’t permit attorneys to voir dire: What if the tables were turned? What if, say, the judge’s daughter were being tried for shoplifting? He wouldn’t want his daughter’s fate placed in the hands of 12 strangers, people he hadn’t had time to become even superficially acquainted with. The six steps to a successful voir dire I have outlined above, more than any other method I know, offers the best opportunity for litigants to obtain jurors who are open and fair to everyone. What I call the magic mirror has been at work: We’re open to our feelings, our prejudices and we’ve been honest with the jurors. Their honesty is reflected back. We have been open with them, and their openness has been reflected back. It’s that simple. Gerry Spence, the noted trial attorney, is a partner at Jackson, Wyo.’s Spence, Moriarity & Shockey. This article is adapted from his forthcoming book, Winning: How to Try Your Case and Win in the Courtroom, In the Boardroom, With Bosses and Customers, Everywhere, Everytime (St. Martin’s Press). Copyright 2004 by Gerry Spence. Further duplication without permission is prohibited. All rights reserved.

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