The Legal Intelligencer Blog

Asking the Right Questions During Voir Dire

By Jocelyn Cinquino
Special to the Legal

The potential value of information gathered throughout the process of voir dire is indisputable. Getting a chance to learn about the jurors’ lives, their families, their past experiences and what they think about major case issues is without question one of the most important things you can do. There comes a point in time, however, when too much of a good thing becomes a problem. When your well-intentioned juror questionnaire has spiraled into more than 100 items or when your proposed voir dire is 10 pages long, you know you have crossed the line from that information being helpful to it becoming a hindrance. The ultimate value of what you learn through voir dire is infinitely tied to how you end up using it. If your information is only as good as what you get out of it, making your voir dire and questionnaires manageable from the start helps you in the end.

As your thoughts for areas to pursue in voir dire start to take shape, you should allow yourself to brainstorm and create a wish list of questions without limits. Getting all of those ideas and thoughts down on paper can help with the necessary next step, which is stepping back. Casting a critical eye on the unedited list lets you see where your stream of consciousness is leading you. Are you picking up on certain categories of questions, ones that you may be repeating or asking in alternative ways or those for which you struggle to find the best language? This tells you a lot about what is really important to ask about and what may be nice to know but isn’t going to get you anywhere. For example, you may like to know how they get their news, but in a case where media isn’t an issue, what are you going to do with that information at the end of the day? Any insight their answer could offer on possible political or lifestyle orientation would come out in other ways if it were an important enough part of the jurors’ lives.

Separating out the questions you can and cannot live without gives you direction and brings your focus to the issues that ultimately matter the most. As you go through this process, it’s typical to see that the questions that make the cut are those that are specific to your case and not so much those stock questions we grow attached to and ask almost as a reflex. If you are covering the three most important areas, namely, (1) how a juror has lived life, (2) how they spend their time and (3) what they think about major issues in your case, you can make voir dire manageable and avoid the pitfalls of focusing on things like demographics in favor of more helpful attitudinal and experiential information.

You do yourself a favor on the logistical end of things, too, when you keep your voir dire and questionnaires lean and focused. For example, if you know 200 jurors will be completing a questionnaire before voir dire and you have just a few days to review and rank them for potential strikes and follow-up questions, make sure you have a plan in place for what you are going to do with all that information when it starts rolling in. Strategize beforehand what questions you will be on high alert to review, who on your team is going to do what when and how you will actually use the information once you have it all reviewed. Sometimes even basic things like how long it takes to scan all those pages, how much time it takes to ask a long list of voir dire questions in court or how to physically view your juror questionnaire ranking file at counsel table become issues that need attention.

Considering the perspective of the judge and jurors on this issue also makes clear how important it is to make sure our eyes don’t become too big for our stomachs when it comes to voir dire information. Being sensitive to a judge’s generally streamlined approach to voir dire by proposing a thoughtful, meaningful list of edited questions increases chances they accept your list. Even if the judge doesn’t allow everything you would like, he or she will get a clearer sense of your position and perspective on the case from the questions you are proposing be addressed. And jurors, notoriously unforgiving of any perceived waste of their time or repetition, will appreciate a tight, concise voir dire and they will remember you for it.

Being realistic and strategic about the questions you ask in the process of jury selection, whether it be in open court or through a questionnaire, makes the cognitive task of asking follow-up questions and exercising strikes easier to handle and ultimately more instructive. Putting quality of over quantity keeps you focused on the handful of key questions that actually tell you more about the juror than 10 other questions combined ever could.

Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and a M.A. in forensic psychology from John Jay College of Criminal Justice. For over 15 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy. Contact her at [email protected] or 917-733-0770.

Working with Prospective Jurors to Support Your Case

By Jocelyn Cinquino
Special to the Legal

Your options and opportunities for learning about prospective jurors in jury selection may seem limited—you only get so much information on jurors from the court, you don’t get to ask every question you would like and people may be reluctant to speak up in open court. Those reasons make it even more important to take advantage of chances to use the information you do have to start laying the groundwork on your case. You can do this by asking certain questions of jurors who on the surface seem destined to be sent right back to the jury room to serve in someone else’s trial rather than be a potential juror for yours.

Sometimes you just know certain people will get kicked off for cause or they will be the number one target of someone’s strike list—they are the doctors in a medical malpractice venire or the business attorney sitting in the pool on a contract case. But you can try to use their responses to your advantage anyway with the kinds of questions you ask them in court.

Most cases have some element of information that needs to be taught to and learned by the jurors who will serve and there’s no better time to start doing that than in voir dire. This is where you can spend a few minutes talking with that doctor about the basic medical issue in the case through your perspective and getting other jurors to listen. Saying, for example, “Based on your background you would agree, or you understand, that this particular condition/situation can be caused by a number of different things…” or, “From your practice, you understand that parties in a contract…”gets everyone else to hear that well before your openings and witnesses take the stand.

To do this well, you need to keep a couple of factors in mind. First, keep it basic—now is not the time to try out a theory that has varied levels of expert support or is going to take a week’s worth of testimony to properly explain (which in itself can be a problem anyway). The more you can keep the takeaway jurors get to a bullet-point, widely accepted concept, the better. Second, evaluate the kind of juror this is likely to be before you ask them the questions. If they seem difficult, disinterested or combative for some reason, they won’t make a good enough impression on others to make them and their understandings seem credible in the first place. And, lastly, know where to set the limit. One carefully crafted question is often enough. You are not putting your case on through this prospective juror, so you need to know when to pull back and how to avoid overstepping the boundaries that can lead your adversary to start challenging your questions and jurors to start tuning out.

Recognizing voir dire is as valuable a part of trial for advocacy as any other can help make the ways you use that opportunity to your advantage more apparent. Every juror has something to offer to the litigation process. Taking this viewpoint, that can be whether they end up serving or not.

Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and an M.A. in forensic psychology from John Jay College of Criminal Justice. For more than 10 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Cinquino at [email protected] or call 917-733-0770.

When Jurors Want to See the Whole Document

By Jocelyn Cinquino
Special to the Legal

Time and again we hear from jurors befuddled with complex contractual issues at the heart of a case: “I can’t decide anything until I read the whole document—I just know the lawyers left something out.” Easy for them to say, impossible for them to actually do considering the document at issue is quite often long enough to require being stored in multiple bankers boxes. So what is it that they are searching for? What is it that they believe is so critical that they are rendered incapable of comfortably reaching a verdict without scrutinizing the document for themselves? Turns out they are searching more for guidance than they are for actual words and counsel has opportunities to meet that need before jurors are left to their own devices in deliberations.

First and foremost, jurors need to have a sense that they can trust you so when you turn their attention to one section of the document, they are not left wondering what you may be leaving out. Recognizing and directly acknowledging that jurors may feel like they are missing out on something if they don’t have all the language at their disposal helps efforts at building rapport with jurors in this regard. To do this, avoid the tendency to rush into getting right at the language you want people to see in a document without first orienting them to the document itself. It takes some patience but taking time to let them know what the document is, what all its paragraphs and sections generally cover and even such basics as the date and who sent or authored it can help in the end, because jurors are less willing to disregard the source of the key information you need them to focus on as questionable.

Be consistent and follow through on any promises you make to further establish trust in jurors that you will guide them toward the information they need in the documents at issue. Giving them an indication that you and the witness will be focusing on a certain section or portion of the document for a particular reason, while offering why the rest is not at issue, can help manage expectations. And making sure your witness is prepared to also handle the documents well when being examined is part of offering jurors guidance in understanding why the document is important in the first place. Should a witness be unfamiliar with the document and fumble around the language, not only will it negatively impact his or her credibility but it can also make jurors even more frustrated and want to examine the document themselves as a result.

Using graphics to highlight or illustrate language from a document is a very valuable tool and is immensely helpful to jurors when it is done the right way. If, however, you consistently show the document only as a prepared graphic where you pull out just one phrase from a paragraphs-long record, jurors can be distracted wondering what else is there. To the extent possible, letting jurors see the actual document itself—even briefly-- before giving them that focused graphic can help satisfy their curiosity first and make them comfortable focusing on what you need them to in the end.

Jurors want and need to be helped along in the process of understanding the issues of the case, particularly when those issues are complex and intangible. When documents exist alongside them, jurors are typically inclined to think of those sources of information as something they can get their hands on and unquestionable as a result. Establishing enough trust with jurors that you are going to give them what they need from those documents will go far in making them satisfied to focus on your points from the document rather than come up with some of their own.

Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and an M.A. in forensic psychology from John Jay College of Criminal Justice. For more than 10 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Cinquino at [email protected] or call 917-733-0770.

Choosing Corporate Representatives for Trial — More Than Appearances Alone

By Jocelyn Cinquino
Special to the Legal

When it comes to a jury trial, no detail gets overlooked by those sitting on the panel. Generally speaking, jurors do a decent job of paying attention to the evidence and testimony offered, but much more goes into their ultimate decision than those factors alone. In an effort to have control and ownership over their verdict, jurors routinely attempt to make sense of the case by relying on their own abilities to sniff out the truth. They zero in on your behavior as counsel, how the judge reacts to the case being made and how their fellow jurors seem to be managing. Your corporate representative will be held to the same scrutiny, so your choice for the face of the company rightly becomes a key consideration for trial.

So how do you make that choice? Here are some strategies that work:

• Make sure the corporate representative is relevant. For jurors to accept your corporate representative as legitimate, that person should have something to do with the case or some easily identifiable stake in the company if at all possible. Otherwise, you run the risk of jurors thinking that your representative is staged. Case in point: Jurors in an employment discrimination case took exception to the presence of a “random”—in their words—female minority from the company being sued seated at the defense counsel table. She did not hold a key role at the company and was not involved in the claims at hand. Consequently, she had nothing to testify to, so her presence as the company’s representative seemed contrived. Even if that is not the actual case, it’s not worth running the risk that jurors will make that assumption. You’ll do better to choose someone who has a discernible connection to the case rather than one that seems like a good fit based on appearances alone.
• Make sure he or she has something to say. The importance of the representative’s relevance to the case and his or her involvement as a witness go hand in hand. He or she can’t be the mysterious stranger that sits in silence throughout the trial. That can make it seem more like the representative is some kind of mole for the company, tasked with reporting back to corporate what was going on at trial, rather than a real player who should be there to witness the trial firsthand. When a corporate representative is also an actual witness at trial, he or she can take advantage of that opportunity to build rapport with jurors and help expand the jurors’ understanding of the case from the company’s overall view. Having that connection to jurors is essential to establish not only the representative’s own credibility, but the corporation’s credibility as well.
• Make sure he or she is available throughout trial. Coming in and out suggests to jurors that the company isn’t as invested in the case as it should be and underscores claims that the company operated with disregard for the complaining party or that the claims the party brings are not as important to the company as it says they are. Depending on the length of the trial, jurors’ expectation for how consistently the representative attends trial can vary, but you can only benefit if your representative makes the effort to be at trial for as long as the jurors are made to be there.
• Make sure he or she knows he or she is on display and is comfortable with that. Just as they pay attention to counsel, jurors will be watching the corporate representative like a hawk. Laughing or joking during breaks and making audible reactions to testimony and evidence during the proceedings will only be met with criticism by jurors. There are many opportunities for jurors to turn their attention to counsel’s table during the trial, and if they perceive for a moment that the representative does not demonstrate the requisite seriousness and concentration for someone in that role, it can have a significant impact on the outcome. It is a lot easier for jurors to be swayed by the way someone is behaving rather than have to make sense out of complicated evidence. Your corporate representative has to be able to keep his or her emotions in check and be prepared to put his or her game face on until he or she is well beyond the courthouse steps.

Jurors make judgment calls in the case based on the totality of what they hear presented, what they know from what life has taught them and from what they observe of those present at trial. Your choice of a corporate representative is no exception to that rule. Ensuring that representative meets jurors’ expectations will be just as important as ensuring the overall case itself meets their expectations in the end.

Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and an M.A. in forensic psychology from John Jay College of Criminal Justice. For more than 10 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Cinquino at [email protected] or call 917-733-0770.

Getting to Know You: Why Witness Preparation Should Start With the Basics

By Jocelyn Cinquino
Special to the Legal

All too often we are presented with the challenge of a difficult witness who seems intent on doing more damage than good for the case. It’s the corporate executive impatient with being on the receiving end of a question. It’s the medical professional personally offended by having his or her care criticized. It’s the person scared to the point of anger who doesn’t understand why he or she is involved in the case and is afraid of the outcome. So talk in trial prep goes along the lines of, “How can we make sure this person does the least damage to our case?” instead of, “How can we use them to support our case?”

But what if the witness is actually much different than he or she first lets on? It doesn’t happen all the time, but often enough that it’s worth the effort it takes to find out. Remembering to ask about the witness’ background before you get too far into the case claims can explain a lot of negative attitudes and behaviors.

A great example of this came from a recent medical malpractice case. Dr. X was deposed and even he admitted he had a bad attitude. He was less than cordial, acted too smart for his own good and was disinterested in the process – characteristics that only served to back the plaintiff’s assertion that he provided substandard care. It became questionable how he could support his own defense at trial. Good thing the team gave preparation with him one last try. He communicated so well on the stand that he ran out of business cards at the end of trial from jurors looking to schedule appointments.

So, how did he get there? From the team asking him all the right questions that didn’t have anything to do with what the case was about — or so it seemed. Turns out this doctor was extremely compassionate and as a result was so personally connected to his patients that he could not even begin to imagine being “accused” of doing his patients wrong. The claim made him sad and rather than appear hurt, he went in the opposite direction and made it appear he felt nothing.

Recognizing there had to be a reason for this behavior, the team took a few minutes to step back from the claims and ask him, “Why did you get into this area of specialization?” and “What’s special about your practice in particular?” Such basic questions allowed him to step outside the negativity of the case and reconnect to what made him feel positive about his practice and confident in his care. It also helped clue the trial team into how effective it would be to position themselves as part of the witness’ team in the effort to overcome the claim. This helped build enough rapport so that the witness could let go of anxiety, trust them when testifying and let his true personality become evident.

It’s also important to stay alert for any personal issues a witness might be experiencing that impact how he or she manages his or her testimony. Maybe he or she is going through a divorce, change in job or some other life event that starts to make its way into how he or she feels about the present case. It is OK if you can’t (and often times you shouldn’t) ask about such issues directly right off the bat. If they are important enough factors that they are clouding your witness’ ability to testify, he or she will drop hints for you along the way.

It can be uncomfortable and take some patience to start with these kinds of questions in prep rather than just jump into the reason why you are all there. But unless you do, you could miss out on something great in your witness and something valuable for your case.

Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and an M.A. in forensic psychology from John Jay College of Criminal Justice. For more than 10 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Cinquino at [email protected] or call 917-733-0770.