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Top Ten Ways to Lose Voir Dire

/a>By Laurie R. Kuslansky, Ph.D.

Voir dire is an extremely important part of any trial. It’s not hard to lose a case in voir dire. Here are 10 ways to lose voir dire.

  1. Let your opponent take charge of the courtroom and leave you behind, sending the message to jurors that what you say or do don’t matter as much as your opponent and that the jurors can rely on the opponent more than on you.
  2. Don’t take the opportunity to speak with prospective jurors and leave the talking to others even when you have the opportunity.
  3. Let your opponent “rehabilitate” a favorable juror without fighting vigorously or quickly enough to keep them. When the opponent says, “But you can be fair, right?” and then rushes them back to the panel, if you don’t intervene on the spot, you may not get another chance.
  4. Waste precious time talking about things that don’t matter. Ask questions only out of curiosity and spend prospective jurors’ precious time irrelevantly. This will yield little useful information, yet elicit resentment and impatience from potential jurors before the case even starts.
  5. Talk more and listen less. You will learn less about the panel members and then will have to decide whom to strike on insufficient information.
  6. Don’t ask the same questions to all prospective jurors so you can compare apples-to-apples. Instead of having the same yardstick, you end up with a mishmash that isn’t very useful.
  7. Ask personal questions without assurance of privacy. Most people are unwilling in open court to volunteer sensitive information, so they will remain below the radar and you will have an incomplete sense of their backgrounds.
  8. Ignore body language, nonverbal behavior, writing samples – everything other than their words. Many times, someone’s true nature comes out more in non-words than in words. How they dress, how they write, their spelling or misspelling, whether they are on time or late, what they read, whom they associate with, whether they go on breaks to smoke, etc.
  9. Ignore social media. It turns out that people are more likely to present their real selves rather than their idealized selves on social media, which may thus provide a more candid view of the panel members than their pat answers in an unfamiliar setting such as the courtroom.
  10. Don’t ask follow-up questions. For example, if you ask, “Who is an environmentalist?” many will raise their hands, but if you ask, “Who here pays dues to an environmental organization, or contributes time or money to it?” most drop their hands, and those who don’t are the ones that matter. Or, if you ask if people believe there are too many frivolous lawsuits nowadays, many will raise their hands, but if you explain as plaintiff what your case is about, then ask who thinks that seems frivolous, most will drop their hands. If you rely on the first answer, you will be misled.

Laurie R. Kuslansky, Ph.D., is the Managing Director of Jury Research & Consulting, A2L Consulting. She has conducted more than 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky [at] and 646-255-5225. This article is reprinted with permission.

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