Jurors evaluate ambiguous evidence based on their personal view of the world. The lens with which we view the world is shaped by our personalities and life experiences. However, some of the evidence presented at trial will be interpreted consistently across the board, regardless of life experiences. If everyone will view one aspect of the case the same, there is no need to ask voir dire questions about that issue. It is the issues regarding the ambiguous evidence that needs to be focused on during voir dire. What groups of people are prone to evaluate the evidence in an unfavorable light? What questions can be asked to identify those individuals?

Developing voir dire questions is a three-step process. First, you must identify the issues that will determine the outcome of the case. Next you generate favorable themes around those issues. And finally you develop questions to identify people who will not accept those themes. Typically three or four questions are enough to get a feel for where jurors stand on a particular issue.

The wording of a question is important but not so important that you should read the entire question word for word. Doing so makes it very difficult to connect with jurors. Questions should be written out to make sure all of the necessary topics are covered but as long as those issues are addressed with open-ended questions, it is more important to focus your attention on the jurors in the box (and the answers they are providing) and not the precise wording of the question. However, if you are submitting questions for a judge-conducted voir dire it is better for the questions to be read exactly as they are written. We are not concerned about the judge’s rapport with the jurors. We are more concerned that the judge will paraphrase the question to the point where the meaning is completely altered. For example, “Tell me about your job,” will yield much more information than, “What do you do for a living?” To the latter, a juror will inevitably say, “I am a technician,” and the judge will move on to the next juror. A job title is far less informative than a job description and this is an important question because the job a person selects can tell you a lot about his personality and lifestyle.

All due respect to my friends and colleagues on the bench, judge conducted voir dire is less effective than attorney conducted voir dire. The attorneys know the case better and, hopefully, have a better idea of what type of juror will have a problem keeping an open mind about the specific issues in the case. In jurisdictions where the judge conducts voir dire, attorneys should always make the request to conduct voir dire themselves. The judge may actually be relieved to not have to bother with it. Alternatively, you should requests permission to submit questions.

If you are permitted to submit questions for judge-conducted voir dire, the way those questions are organized is critical. Most attorneys just submit one long list of questions. However, a list like that does not encourage the judge to ask the questions in a meaningful way. A better way is to submit questions based on category. For example, in a medical malpractice case there might be a section of questions that are listed under the heading, “Jurors with Medical Experience/Background.” When a juror tells the judge he works at a hospital, the judge can easily flip to that section of the questions. If there are a lot of topics to be covered a table of contents might make it more likely that the judge will stick to the list. That way, the judge can quickly find the relevant questions for any particular juror. Of course, the judge’s patience will have its limits so you will have to keep the list reasonable. The longer the list, the less likely it is that the judge will ask the most important questions. To that end, you can submit an extensive list with several sections as long as you flag the critical questions and make sure the judge understands your system.

Logistics for voir dire should also be determined well before the trial starts. The attorney who will be speaking with the prospective jurors should not be taking notes. All she should have with her at the podium is a list of questions and a twelve-box grid to keep up with everyone’s names. For that attorney it is fine to use Post-it notes to place on the grid as jurors are excused and replaced. However, co-counsel or the consultant should be using a full page for each juror. If you can fit everything you know about a juror on a 3”x3” Post-it, you do not know enough about the juror. Also, each question should be numbered so members of the trial team who are sitting at counsel’s table can pass a note to attorney who is conducting voir dire that says, for example, “8/44.” That would mean “Ask juror #8, question #44.” That system is much more efficient than scribbling a question on a piece of paper and hoping the attorney can read it. It does, of course, require having an extensive, generic list of questions but if you add questions you have used in prior trials, it really is not that difficult to generate a list that will cover most topics.

Just as witnesses will perform better if they know what to expect, jury selection will go smoother if you know what to expect. Prior to the panel arriving you will want to know how many peremptory challenges will each side have, whether or not back striking is allowed, how jurors are placed in the box, what order jurors are called, whether you will know who the replacement juror will be before challenging someone in the box, and whether or not you must make challenges for cause immediately.