Practice Points »
Voir Dire: Don't Let the Judge Cut You OutBy Mark A. Drummond, Litigation News Associate Editor
He peers over his bench and you know what’s coming. His head starts nodding up and down rhythmically, like one of those dogs in the back windows of some cars. You then hear these words, “Now Mrs. Jones, even though your father was a police officer, your three brothers are officers, and your husband is an officer, you can be a fair and impartial juror, can’t you.”
The juror looks down, then she says, “I can.” You grit your teeth and burn another preemptory challenge.
Ask a trial judge the purpose of voir dire and the answer will be short. “In my opinion, the purpose of jury selection is to assure that the jury is fair and unbiased,” says Hon. John G. Koeltl, New York City, member of the ABA Section of Litigation’s Federal Practice Task Force. “It is not to use the process to slant the jurors to your side,” he adds.
Ask a trial lawyer the purpose of voir dire and the answer will be different. “The lawyers are interested in a partial jury. I do not want an impartial jury. I want a jury that is in my favor from the beginning, and you can quote me on that,” says Paul Mark Sandler, Baltimore, cochair of the Section of Litigation’s Institute for Trial Training and chair of the Special Committee on Voir Dire for the Maryland State Bar Association. “I do believe that cases are won and lost with the selection of the jury,” he opines.
The trial lawyer’s answer to that question will also be longer. Entire books have been written on voir dire. Jury consultants put their children through college on voir dire.
So for this column, I will assume you agree with Sandler that cases are won and lost in jury selection. But if you were to voir dire me, I would reveal two biases.
First, toward the end of my career as a trial attorney, I was espousing what I called, “I’ll take the first 12 honest people not directly related to the other party theory.” By this point in my career, I was no longer sure I could divine which way they were leaning by asking what magazines they subscribe to, what cars they drove, or noting the watch they wore into the courtroom. Second, I am a state court judge who always allows the attorneys to question, and I never try to rehabilitate a juror once an attorney has established a bias.
State or Federal Court?
So, if your participation in voir dire is so crucial to your case, do you have a choice of a court that will give you more voir dire? “There is a difference between jury trial procedures in federal and state courts as to whether to allow the attorneys to conduct voir dire,” says Hon. Marvin E. Aspen, Chicago, cochair of the Section’s Pretrial Practice and Discovery Committee. “There is a great variance of practice among the states, between counties within a state and even between individual state judges on the same court. The same is true in the federal system.”
So, could you file in either state court or federal court? Wherever the case may be, could you file a motion for change of venue or judge?
You may have more control than you think. The usual mantra is that you get more attorney voir dire in state court. I have heard lawyers from Texas joke that you could almost try your entire case during voir dire if you were in state court in Texas. The mantra for federal court is that you don’t get voir dire. Is that fact or fiction?
Voir Dire Atrophy in Federal Courts
“The general practice [in federal court] is that the judge conducts voir dire and usually asks the attorneys to submit, in writing, questions the attorneys may wish the judge to ask,” says Judge Aspen, who was a state trial court judge for eight years before moving to the federal bench. “Somewhat of a hybrid method, which I have used, is for the judge to conduct voir dire and then also allow the attorneys a limited amount of time to ask supplementary questions,” he continues. “However, since the art of attorney voir dire has atrophied so significantly in the federal system in recent years, I have found that most lawyers will now decline this offer.”
Let’s admit it: There are some questions you want the judge to ask. You would rather have the judge ask whether an individual juror or someone close to him has ever been involved in a court case, especially when a respected member of the community feels compelled to reveal that he got busted for pot three decades ago while in college. You don’t want to be on the receiving end of that answer.
“My procedure is on our court’s website,” says Hon. Robert W. Gettleman, Chicago, associate editor of the Section’s Litigation journal. “I ask the questions in open court and then use the sidebar for follow-up questions with the attorneys. I think it may be a myth that attorneys are not involved in voir dire in federal court.”
Ask for Voir Dire
Even if you hear through the grapevine that a particular judge does not let the attorneys ask questions, still ask for it. “One of my colleagues once told me that no lawyer had ever asked him to be given the opportunity to ask questions,” says Judge Koeltl. Trial attorney David Berg writes, “trial lawyers in the Southern District of Texas argued for individual voir dire so consistently for such a long period of time that at least half the judges now allow it in some meaningful form.”
“I have given attorneys voir dire in every case in addition to using a written questionnaire,” says Hon. Barbara M. G. Lynn, Dallas, national cochair of the Section’s Judicial Intern Opportunity Program. “The average time they ask for, and usually receive, is between 30 and 45 minutes.”
If you ask for voir dire and are turned down, ask for a written questionnaire. People are more likely to be forthright with their views if allowed to respond to questions in writing on a sheet of paper, as opposed to being asked general questions en masse or being singled out and asked the question by a judge with scores of people listening. “Notwithstanding the presumption of innocence, we found many, many potential jurors who, in response to a written questionnaire, presumed the defendant to be guilty or he would not have been indicted,” recalls Sandler.
Know the Law on Voir Dire
Know that cases, even in the federal system, have been reversed when the voir dire was not adequate. In Fietzer v. Ford Motor Co. the court stated that a trial court “should permit a reasonably extensive examination of prospective jurors so that the parties have a basis for an intelligent exercise of the right to challenge.”
The key to using that standard is to note the words “reasonably extensive” and “parties.” If you frame the issue as you versus the judge and who is better at doing an adequate voir dire, you are probably going to lose that battle. But you might make more headway if you reframe the discussion in terms of your client, his rights, and his desire to have you involved in the voir dire.
“I have convinced a judge who was dead set against us doing voir dire to give us some time,” remembers Sandler. “His concern was that it would take too much time. I told the court that if he established the time, we could do it, and he agreed. It was very rewarding since the client felt that his lawyers were involved right from the beginning. If clients have a constitutional right to a jury trial, I believe they have a constitutional right to have their lawyer involved in voir dire.”
Finally, read appellate court opinions to see how opportunities in voir dire have been wasted. In one case, counsel was allowed to question the jury for 30 minutes, which was 10 minutes longer than the usual. On appeal, he argued that this limitation prevented him from determining whether the all-white jury harbored biased racial attitudes. The appellate court noted that counsel did not ask any questions about race during his 30 minutes, did not indicate what he would have asked if given additional time, and did not explain his failure to object or ask for additional time when the court indicated his time was up.
In another case, the court placed no time limit on voir dire provided the questions were kept within reason and relevance. After a time, the court told counsel that he had five additional minutes to ask germane or reasonable questions. In denying a motion for a new trial based, in part, on limiting counsel’s voir dire, the court noted that a considerable amount of time had been spent on topics such as what football team any particular juror supported to whether he had heard the song “Que Sera Sera.”
In some courts, voir dire is a gift. Use it wisely.
- » Art Press, Ltd. v. Western Printing Machinery Company, 791 F.2d 616 (7th Cir. 1986)
- » Fietzer v. Ford Motor Co., 622 F.2d 281 (7th Cir. 1980).
- » U.S. v. Smallwood, 188 F.3d 905 (7th Cir. 1999).
- » Browne v. Signal Mountain Nursery, L.P., 286 F. Supp. 2d 904 (E.D. Tenn. 2003).
- » David Berg, “The Trial Lawyer: What It Takes to Win” (ABA Publ. 2006).
Be the first to comment.