Kentucky Injury Law Blog

The Facts Don't Speak For Themselves

How many times have we heard an attorney say, "The facts speak for themselves?"

Trials exist because two sides usually disagree on what the facts are. Jurors enter the courtroom expecting to hear two sides of the story. They anticipate having to listen to evidence and testimony and sort through all of the "he said/she said" versions to arrive at the "truth." They want to get there, but they don't necessarily want someone to tell them how to get there. So, any attorney who suggests to jurors that "the facts speak for themselves" is setting up the case as if any knucklehead could figure it out. But, what if the jurors don't agree that "the facts speak for themselves?" You've basically told them that they're ignorant because they don't see things your way.The first step in relationship building is respect. Attorneys need to respect the intelligence of those people who have agreed to serve the court system as jurors.

A better approach is to draw the listener into your client's story. Get the jurors involved from the beginning in wanting to learn about your client. Help them understand the conflict. Use storytelling to lead them to a logical conclusion. Be careful not to tell them what the conclusion is before they've had a chance to think about it. That's like reading them the last page of a suspense novel before they've heard Chapter 1.

Think of telling your case as though it were from a storybook. Storytelling is one of the strongest, most memorable forms of communication. A good story involves the audience in the plot. A really good story has very basic elements: a beginning, the point at which all the characters (plaintiff/defendant/witnesses) are introduced; a middle, when all the excitement occurs (the accident, injury/death); and an end, the resolution to the conflict (your reasoning of what it will take to make the plaintiff whole, or why the defendant is not responsible). Think of voir dire as the beginning of your storytelling process.

There are five do's and don'ts of voir dire that can help you begin to tell your story while you learn about your listeners.

The Do's Of Voir Dire

* Do Anticipate Juror Bias

Probably no other case in recent history has done more to whip up anti-plaintiff/anti-attorney sentiment then the now infamous McDonald's hot coffee case. Identifying the bias is critical whether you represent plaintiffs or defendants. Anticipate the bias and be prepared to deal with it before you ever walk into the courtroom. If people from the jury pool voice what you consider to be "negative" opinions, about lawyers or lawsuits in general, don't simply try to quiet them down. It's much better to get those opinions out in the open than to squelch them and hope they don't come up later during deliberations. They probably will, and then you will have absolutely no influence over them. Attitudes and beliefs, unlike colds, are not contagious — but one sure fire way to raise juror suspicion is to appear to keep potential jurors from saying what they think.

* Do Use Open-Ended Questions

Too many times attorneys misuse the golden opportunity of voir dire to find out what jurors really think and why they think it because the process of selecting a jury has been reduced to asking perfunctory questions that merely take up time but don't reveal any useful information. "Do you know the plaintiff, defendant, or attorneys in this case?" "Do you think you can be fair?" These closed-ended questions provide limited insight into juror beliefs and do little to advance the jury selection process.

What attorneys need to use are probing questions, carefully selected open- and some closed-ended questions that force the potential juror to give a thoughtful reply. For example, you could ask the closed-ended question "Does your car have a bumper sticker?" If the answer is yes, follow up with open-ended questions such as "What does the bumper sticker say?" and "Why do you have that sticker on your car?" This method of building the line of questioning based on the respondent's previous answer will provide you with much more useful information than asking only closed-ended questions that yield a "yes" or "no" response.

For example, if you are defending someone in a flag-burning case, you probably wouldn't want a juror who tells everyone from the rear of the car, "America: Love It or Leave It!" The only way to find out that juror's true sentiments about patriotism and the country is to ask probing, personal questions. An example of a non-probing question in this situation would be, "Do you consider yourself to be patriotic?" Most everyone would say "yes," but the person who puts a "Love It Leave It" sticker on the car may be a bit more adamant about those feelings. The relevance of the nature of this type of question is confirmed by the response, and most judges would agree that this information is significant to your case. In fact, the bumper sticker question is far more significant than at first blush. Many people who are reluctant to say what they really think readily "wear their true feelings on their cuff," or their "bumper" as the case may be.

* Do Listen To The Message

One of the most unproductive time-wasters is to ask somebody a question and then not listen to the answer. The skill in asking questions is two-fold. First, you have to ask the right questions. Second, you must listen to the answers.

If you ask, "How do you feel about people who smoke in a restaurant?" you might get an answer like "It doesn't bother me all that much." Your next sentence should be, "Tell me why that doesn't bother you." Get the person to explain the answer. You might find out that your juror lives with a chain-smoker and has become quite accustomed to cigarette smoke. Or, perhaps the juror wouldn't be bothered by a smoker opting to be seated at another table or leaving the restaurant to avoid the smoke. Those answers reveal entirely different aspects about a person that might make a critical difference to your case.

So the lesson for listening is, don't be satisfied just to get an answer from someone. Look for ways to capitalize on the information you're hearing. Be flexible. You have to think on your feet during voir dire.

The Don'ts Of Voir Dire

* Don't Avoid Explosive Questions

Effectively crafted voir dire questions can be the linchpin that links the jury to the case. However, effective questioning on voir dire helps to not only select but deselect jurors.

One of the best ways to identify the jurors you don't want on your case is to ask explosive questions up front. If you're "walking on eggshells" during voir dire because you're afraid to point out that your client was drinking on the day of the accident, you can count on those eggs cracking at some point during the trial.

Asking explosive questions ties in with identifying juror bias and listening to the message. You might think it's counterproductive to point out your client's "negatives," but the only way to measure the impact of the information while you can do something about it is to broach the subject during voir dire.

You might ask something like, "What are your feelings about people who drink?" or "Explain to me what you think social drinking is." You can begin to understand how jurors will accept that negative information about your client by the way they answer those questions. The issue that you think is explosive may turn out to be nothing more than a fizzling firecracker. But, you have to have the courage to light the fuse before the other side does.

* Don't Stereotype Jurors

The conventional wisdom of the past was to select jurors based on demographics. You can obtain that information from juror profile forms, but studies suggest that verdicts do not fit into nice, neat patterns based on demographics. It is a dangerous fallacy to proceed through voir dire under the assumption, for example, that women naturally are more sympathetic than men or that older people are more conservative than younger people. It is more a matter of life experiences that determines how people act and react in given situations.

Relating to jurors on a personal level can be the key to learning about those life experiences. A recent survey of mock trial jurors revealed that over 85% of them based their final verdicts on the attorneys' opening and closing statements, even after they had been instructed not to consider those statements as evidence or testimony in the case. What this tells us is that jurors rely heavily on attorneys to interpret and explain the acts and evidence for them. The attorney who spends time really getting to know the jurors during voir dire is more likely to be the attorney jurors trust throughout the trial. One effective and easy way to win over jurors during voir dire is to reduce your reliance on notes. Come out from behind the podium, leave the notes behind, and talk with the jurors one-on-one. The way to connect with jurors is to talk with them, not at them. Engage the jurors in dialogue. Help them feel that you genuinely are interested in their thoughts and opinions.

Effective voir dire requires preparation, skill, and flexibility. It is the means to an end, and you want that end to be a verdict in your client's favor. Spend time preparing questions. Practice asking questions. Develop a friendly approach. And above all, try to remain flexible. Some of the best information you get just might come from the question you hadn't thought of asking until someone in the jury pool brought it up.

Knowing your case before trial is fundamental. Knowing your jury by the time you make an opening statement is essential.

Mark A. Modlin, M.S., is a member of the American Society of Trial Consultants and the National Board of Certified Counselors. Modlin's offices are in Florence, Kentucky.

Becky S. Jones, M.B.A., has worked with Mark Modlin Trial Consulting for several years.

This article has been reprinted with permission from the Kentucky Bench & Bar.