Voir Dire

Brien Roche

Voir Dire- To Speak The Truth

Voir dire takes place at the beginning of a trial.  It consists of the attorneys asking questions of the people who may sit on the jury.  Those questions can be fairly broad.  However they must relate to the following:

• Any relationship that any of the people have with anyone else in the courtroom or anyone related to the case.
• Any interest that they may have in the outcome of the case.
• Opinions they may have formed about the case.
• Any particular prejudice or bias that they may have, one way or the other that may impact their decision-making in the case.

Any questions that would disclose or lead to the disclosure of such info has to be permitted pursuant to Virginia Code section 8.01-358.  However questions that go beyond the scope of those four (4) matters may be asked if the court allows such.

Voir Dire By Judge

If you are in a locale where voir dire is done by the judge you may want to challenge that. Voir dire by a judge only elicits info for cause challenges. It elicits no real info for peremptory challenges. Which means you have no peremptory challenges.

For instance if there is an issue of alcohol in the case jurors need to to be questioned about attitudes. They need to be made to talk. Judge asked questions only elicit yes or no answers. Those tell you very little.

Voir Dire Follow Up

An attorney in asking questions must recognize that people sitting on the jury panel may be nervous.  They may be uncertain of whether they should say anything.  In some instances they may even have something to hide.  As such in any case where a juror discloses something that may be of interest, there probably should be follow-up questions:

• How long have you felt that way?
• On a scale of 1 to 10, how firmly do you hold that belief?
• Is it fair to say that as to that issue then your position is not neutral but rather you’ve formed a firm opinion?
• Is there anything that could be said that might change your opinion on what we’ve just discussed?
• Do you understand that based upon what you’ve told me I may have to ask the judge to let you off this panel as you may be better suited for another case?
• How many other people on the panel feel the same way as Mr. Jones?
• Is there anything else that you want to say about that topic?

The Actual Voir Dre

The actual voir dire may then consist of the following:

Introduction

Introduce yourself and everybody in the courtroom.

This may be a new process for you or it may not be.  How many of you have ever sat on a jury before?  What type of case was it?

My Role in Voir Dire

My job is to try to understand what you are saying and then evaluate that.  To do that, I may repeat what you’ve said.  I may also ask you “Would it be fair to say…”  If my attempt to repeat what you’ve said is not correct, you need to correct me.

Brutal Honesty

Whether you’ve sat on a jury before or been considered for a jury, there are two things that I would ask of you:

A.  I would ask that you be the most talkative group of jurors that has ever sat in this courthouse.

1.  Can we agree that you will talk to me today.

2.  If we hit a roadblock on some question, will you agree that you will tell me what you’re thinking about that?

B.  I want you to be brutally honest with me.  There is no such thing as you hurting my feelings.  My goal is to get a neutral, open-minded group of people on this jury.  The last thing in the world I want is to have someone on this jury panel who in the middle of the trial realizes that there is some reason why they can’t be fair to both sides.

Bias

We all know what bias means.  By bias, I don’t mean just the type of bias based upon race, religion, national origin, that type of thing.  I also mean  feelings that any one of you may have that may affect your decision in spite of your best efforts to put those feelings aside.

Let me give you an example.  You’re involved in a competition where someone has to decide whether your Ford pickup truck is better than a Chevy pickup truck.  There are only 2 contestants, and you’re one of them.  You don’t know me but I’m asked to be the judge.  It so happens that I like Ford pickup trucks.  Would you want the judge to be a person who is a Ford guy?

Would you agree that potential judge should disclose that he is a Ford guy?  Everybody agree that should be disclosed?

This case is not about pickup trucks.  It’s a personal injury case.  We need to know if anybody has a bad taste in their mouth about that type of case.

Personal Injury Case

How many of you have some feelings against personal injury lawsuits?  Based on what you’ve seen or heard so far, is anyone leaning towards one side or the other in this case?

Damages

As part of this case we have to prove negligence.  The court will tell you what that means.  We further have to prove that negligence caused or contributed to the injury.  If we prove those 2 things then we will talk about damages.  At that point you will be asked to put a value on those damages or losses.  In that sense you’re going to be asked to act much as an appraiser to appraise what those damages are.  Is there anyone who feels they cannot do that?

There are two general categories of damages.  The damages may be economic which means something that directly affects the pocketbook or the damages may be non-economic such as pain and suffering, loss of mobility, inability to sleep, inability to do certain physical activities.

Is there anybody who feels as though they would have a problem awarding economic damages?  That is, the out-of-pocket or pocketbook type losses.

Who thinks they would have any reluctance to award the non-economic type of damages?

Who feels that they are closer to the first group?  That is, no problem awarding economic damages but maybe some trouble awarding the non-economic damages?

Big Damages

The damages in this case may be big.  There may be lifelong effects.  You may be asked to award losses for many years to come.

How many of you would feel that you don’t want to be associated with a verdict for a large amount of money?  How many of you have a personal belief that you wouldn’t want to be part of such a case?

Do you feel that you could put those feelings aside if you have them?

How many of you feel that as hard as you try, you may not be able to put those feelings aside when it comes to the amount of the award?

Burden of Proof

We all know what a criminal case is.  In a criminal case, the government has to prove the guilt of the accused beyond a reasonable doubt.  That person cannot be convicted without such a finding.  If there is a reasonable doubt, then the person is not guilty.  Therefore in a criminal case, the job of the defense lawyer is to create doubt.

Does everybody understand that this is not a criminal case?

Does everybody understand that whatever you may know about a criminal case probably has no application here?

Do all of you understand that in this case there is a different burden of proof?  In this case the plaintiff simply has to prove their case by what is called “the greater weight of the evidence” i.e., more than 50%.  The greater weight of the evidence may be created by so much as a feather weight.  Imagine a set of scales.  They are perfectly balanced.  If the plaintiff tips those scales by so much as a feather weight then the plaintiff wins on that issue.

Creating doubt does not give the defendant a way out.  Is there anybody who disagrees with that?

That same rule applies to proving what the damages are.  The greater weight of the evidence.

The plaintiff does not have to prove the damages beyond a reasonable doubt.

Is there anyone who feels that the plaintiff should prove their damages beyond a reasonable doubt?

Is there anyone who feels that there should be some level of proof higher than the greater weight of the evidence in order to prove damages?

Anyone who feels that the burden of proof should be higher or lower, depending on how much money is being sued for?

Voir Dire-Sympathy

We all know what sympathy is.  It’s natural to feel sympathy.  Your decision however cannot be based on sympathy.  Does everybody understand that concept?

We will talk about my client’s injuries.  Some of you may feel sympathy for him.  Does everybody understand that it would be wrong however for you to find in favor of my client just because you feel sorry for her?  Does everybody understand that this case is about justice, not about sympathy?

Can everyone agree that you will not base your decision on sympathy?

Now as to the defendant the same thing applies.  Some of you may like the defendant.  Is there anyone who feels at this point that for some reason they identify with the defendant?  You cannot base your decision on sympathy.  Is there anyone who feels that regardless of the evidence, they may have trouble holding the defendant responsible?  Is there anyone who feels they have trouble holding the defendant responsible depending on the amount of money that we are asking for?

Voir Dire-Prior Claims

Have any of you or anyone that you would consider a loved one had a chance to bring a claim but that person chose not to do so?

Have any of you ever been sued?  Has a loved one of yours ever been sued?  This does not apply to criminal or divorce cases.  Has anyone ever made a claim (no lawsuit filed) against you or a loved one?  Have you or a loved one ever brought a claim or lawsuit, again in a situation that is not criminal and not divorce.

If you or a loved one have an injury claim contact Brien Roche, serving the Fairfax, Virginia and D.C. area for over 40 years.

Also for more info on this subject see the pages on Wikipedia.