Preparing For Federal Voir Dire
One of the most striking differences for many Georgia practitioners when they first try a case in Federal court is the manner in which Federal judges conduct voir dire. While voir dire at both the state and federal level differs substantially from judge to judge, in general, attorneys should expect Federal voir dire to be far shorter and more cabined than in Georgia courts. Federal judges will tend to put lawyers on a shorter leash than state judges. Add in that the Federal venire pulls from a broader geographic area than state courts, and attorneys may be left feeling that they still know next to nothing about the jury pool when it is time to employ their strikes. The following are a few tips on preparing for Federal voir dire when you are used to practicing in state courts.
When You Are Used to State Practice
By Kurt Kastorf
Ask the court how it conducts voir dire.
Every court conducts voir dire differently. Some state judges conduct a brisk voir dire or ask the questions themselves. Some Federal courts allow more robust questioning. Where you do not know your particular judge’s preferences, you should assume, however, that voir dire in Federal court will be significantly shorter than in state court. In some Georgia courts, voir dire can continue for several days, with individual questioning of many potential jurors, and multiple panels to interview. By contrast, Federal voir dire is usually quite short, with the court often giving the summary of the case itself, tightly limiting what questions are asked, allowing few or no hypothetical questions, and making it difficult to develop the factual record needed to strike a juror for cause.
So that’s your baseline. But really there’s no excuse to be relying on an assumption when preparing for voir dire. Start asking the court early and often about its voir dire practices, beginning at the first hearing following a denial of summary judgment. Ask for further clarification at the pretrial conference.
Ask other attorneys how the Court conducts voir dire.
Don’t just rely on the court for information, especially if the court is not forthcoming (or if the pretrial conference is scheduled for the eve of trial). Track down at least two attorneys who have tried a case before that judge, and get their take on voir dire, among other topics). If you do not know someone who has tried a case in front of that judge, attorney listserves are a good resource for seeing who has tried a case in that court. Once you have learned that a particular attorney has some experience with your judge, best practice is to follow up by phone, so that you can have a more candid conversation. When listservs are not working, try checking with attorneys who do appellate litigation or serve as embedded trial counsel. They tend to know who has appeared before what court.
Prepare for a substantive first day of trial.
One immediate consequence of faster voir dire in Federal court is that you need to be prepared to try your case on day one. The typical federal judge will be aiming to conduct opening arguments right after lunch, so you should assume you’ll need to be ready to go with at least one witness in the afternoon. Bring a witness, or anticipate the court will be unimpressed if you ask to break for the day before starting your case in chief.
Request approval of questions you want to push the limits on.
Some Federal judges will quickly nix many proposed questions that stray beyond the most vanilla and talismanic statements about whether jurors can be fair and impartial. But often courts have very specific reasons they believe the question crosses the line. Clarify what that is, and resubmit versions that might address the concern. It may be that you can achieve your intended purpose by different means. Do not give up on the first try.
Consider using large scale focus groups and online surveys.
Because you may not have enough time or be able to ask pointed questions to really get to know your jurors, you will be relying far more than is desirable on the information you receive on the jury questionnaire, and on the jury’s demographics. This means you will have an advantage if you have tailored data about how your case performs with particular demographics. Conducting a mock trial is a good idea pre-trial whenever the economics of the case make sense, but using large scale or online focus groups can be an excellent alternative or supplement if you want a statistically significant data set to provide insight into your ideal juror. Not all of your preconceived notions about the perfect juror will bear out in the research. For example, you may assume older jurors will like your elderly client, only to learn that jurors who skew younger are far more likely to find fault with your client’s employer. When you are in a position to make informed decisions based on the scant data on a juror’s intake form, it lessens the stakes if you are unable to get to know each juror in the time allotted for voir dire.
Also consider rapid research consulting.
On the morning of voir dire, you can also bring a consultant to trial to conduct rapid research from online databases and social media on your venire. This, again, can be an important substitute for the more limited questioning that often occurs in Federal court. Even with a truncated voir dire, a talented consultant should be able to place substantive information about most members of the venire at your fingertips in time for you to consider it in deciding your strikes. While it may seem a bit invasive to conduct online research on the venire, this approach is a bit of a modern solution to a modern problem. Trial lawyers of yore were often local practitioners. Part of their job was to be active members of their community who might well know many members of the venire, and at the very least would be familiar with their employees, their hangouts, and the ways their neighbors tended to view certain issues. Modern law practice, particularly in the larger venires of Federal courts, is much different, and rapid research is one solution to keep attorneys connected to their jury pool.
Focus on how you want to use your preemptory challenges.
Both of these preceding two recommendations tie into a basic reality: if you do not have time to have a real conversation with each juror, and the court is allowing questions so vague you cannot prove potential bias, winning strikes for cause is going to be very difficult. If you identify a juror that you may be able to strike for cause, make sure to ask the necessary questions. But be aware that in many Federal trials there may be few or no successful for cause strikes. Most of what you are doing, then, in voir dire, is perfecting your preemptory strike selections. Given the limited time, focus more on finding what you need to make smart preemptory challenges, not seeking for cause strikes that are unlikely to materialize.
Focus on the front bench.
A corollary to this point is that most of your jurors are going to come from the front row of the galley. Double check with the court before you start with voir dire how the jurors are numbered, and in what order you will exercise strikes. Then focus heavily on the low numbered jurors. Because few jurors will be excused, the back of the room is often irrelevant by the time it is your turn to strike.
Batson challenges may be somewhat more viable.
When there is limited time for individual questioning, it increases the odds that some jurors never get a chance to open their mouths. This fact can make a Batson challenges slightly more likely to succeed, because if your opposing counsel is striking jurors based on demographics and fails to ask a struck juror a single question, he or she will have a tough time offering a non-discriminatory reason for the strike. While successful Batson challenges are quite rare, particularly in civil trials, occasionally bringing a phase one challenge in, which you force opposing counsel to proffer non-discriminatory reasons for strikes, can help keep opposing counsel honest, and keep on a member of the venire who never had a chance to speak.
Be organized, and ask for help if needed.
One final piece of advice: have a plan for rapidly recording answers to questions asked of the whole panel. It may often be that all the information you have about a particular juror comes from the two times she raised her hand to the dozens of questions asked to the entire venire. Under those circumstances, it is critical you are accurately recording everyone’s responses in an organized manner, and can quickly refer to that information both during individual follow-up and when deciding strikes. Consider using a second chair or embedded appellate counsel for this purpose, so you do not need to rely on your notes alone. When you are asking questions, you should be focused on a persuasive presentation, connecting with the jury, and observing the jury’s demeanor, not huddled over a spreadsheet. Have a plan – and a co-counsel – in place before you get started. ●
ABOUT THE AUTHOR
Kurt Kastorf helps other lawyers with their most challenging trial and appellate matters, handling critical legal issues, second chairing trials, and defending judgments on appeal. Learn more about his practice at kastorflaw.com.