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Exploring Biases in Voir DireExploring Biases in Voir Dire

Exploring Biases in Voir Dire

Kirk Simoneau

Lawsuit Information

Entire books have been written on voir dire, some good, some bad. Voir dire is important. In essence, voir dire has two prima1y focuses; to discuss bias and establish yourself as the “good guy”, the truth teller.

Some lawyers are afraid to explore biases with a jury because they hope silence means the biases won’t hurt them. That’s just stupid, especially in a fall case. In fall cases, you start with a jury biased against you - after all, everyone falls. Oh, and you’re a lawyer - they are biased against you for that too. Lawyers, they think, get paid to lie and in a fall case, you’re representing someone suing for something that happens to everyone.

I cannot overstate the importance of using voir dire to explore bias, good and bad, and to establish yourself as a truth teller. I believe cases are won and lost in voir dire.

In the attached sample voir dire, from a case with a successful $400,000.00 verdict, I focused on some negative biases. We discussed biker bars, high heels and lawsuits in general. You’ll note I don’t use a bunch of fancy language. I say “sue happy” not “tort reform.”

The point with bias is to see if any exist in your favor and to push those while defusing negative ones.

Voir dire is also the place to ask for a number. This bias is important. Is your jury biased against giving mon ey? It’s also the time to set their target and get them on the same·page. Once, post-trial, I followed up with a jury panel who had awarded our client about $95,000.00, a touch more than the specials and far less than we had hoped for. In that trial we clidn’t ask for a number, we proved our damages, but didn’t ask for any particular figure. Each juror I spoke with said the same thing: “oh, it was awful what happened to that boy, that’s why I wanted to give him a lot of money.” The problem came when they deliberated; and each had her own idea of a lot of money. If the jury trusts you; they will trust your number as being full, fair and adequate compensation.

So, how do you touch on bias and ask for money? With biases, be direct, state things straight out in layman’s terms. No point beating around the bush. You’ll earn respect for being direct. With money, however, I recommend a slower build. I suggest talking about full, fair and adequate saying, in some cases, what is full, fair and adequate may sound like a lot. Then you pitch the biggest number you feel comfortable with in that moment. Don’t go into your voir dire married to a number. You are going to ask near the end, after you’ve learned all you can about your jury so that number may go up or down.

Finally, be yourself. Trust is built by being trust worthy. I use humor when talking to a jury. I paid my way through school doing stand-up comedy and funny is my natural style. While the attached example may read flat, I assure you - the jury was laughing, a lot. It’s how I build rapport and keep their attention. If you aren’t funny, don’t try to be, but, don’t act and sound like a lawyer.

Reference material: Lynch v. STJA Corporation, et al - voir dire.

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