The Velvet Hammer™ -

Prologue:  Failure to Mitigate is a legal defense.  The charge here, is the injured person made herself worse by not following doctors orders.

We break for lunch.

I’m out in the hall.  Meeting the parade of C’s own health care providers that Nick is calling to testify in the defense case against her. 

At 1:00 a prisoner in shackles is marched in.  The courtroom fills.  Cristina comes out to the hall about half an hour later.  She looks flustered.  What happened.  I’d told her to stay and watch as it would be interesting.

Well, it is apparently a bit brutal.  A sentencing hearing.  The guy beat his girlfriend with a metal pipe.  First fracturing her hands and wrists as she held them up to shield her head; then fracturing her skull.  She’s alive so it isn’t a murder charge.

Judge W comes rushing out to go take a break before we resume.  Looks just as upset as Cristina.  Says – I gave him the maximum possible sentence 28 years.  And strides out the door.

The prisoner comes through next.  Flanked by five officers.  Apparently he assaulted someone in jail.  Not a nice fellow.  Followed out of the courtroom by the woman and her family.  All crying.

We start trial about 20 minutes late.

Nick is calling a physician’s assistant and three physical therapists.   It is never a good sign when the defense calls the plaintiff’s own treating providers.  Here, the reason is that C was told she needed to wear a large brace on her left leg to assist with foot drop and hyperextension of the knee.  But she never followed through.  Over and over again they tried to get her to do it.  But she didn’t.  Plus he wants to pull out paragraphs here and there to show how good she was performing on certain tests.

That is his goal.  And that is what he does.  But the story isn’t over.  Because we get to cross.  Which doesn’t mean that we are trying to impeach or contradict these witness.  Au contraire.

Witness number one: the physician’s assistant.  Nick trots him through carefully selected portions of his medical records.  Gets him to admit C didn’t wear her brace. 

Cross time.  I am fiddling with the video (to show some speech therapy).  Get tangled in cords.  Realize I need the speaker.  And apparently begin to drive Nick nuts.  I then pull out exhibit 30, the famous brace.  Objection.  Overruled.  I decide to put it on.  Need a chair.  Am boxed in.  As I try to figure out what to do, Nick offers me his chair.  Why thank you Mr. Scarpelli.   Sit down.  Take off my shoes.  This takes a while because I have little ankle straps.   Begin to strap on the brace.   The jurors stand up.  Smiling.  Trying to get a good look at what I'm doing.

Limp over to the PA witness, but he’s not real familiar with how this contraption is going to work.  Says I should ask the physical therapist.  Good idea.

Limp back to chair. Take off brace.  Ask the court for permission to publish it to the jury.  Nick objects.  Argues - waste of time.  What he’s really saying is – are you freakin’ kidding me, this woman drives me crazy.  Objection overruled.  The jury passes it around as I slowly buckle my shoes back on.

Witness number two:  the first physical therapist.  Nick takes her through the paragraphs of her chart.  Gets her to say C didn’t follow through with her brace.

Cross time.   I am showing her a video of C walking two months ago.  She comes up to the tv.  Uses my pointer.  (Did I tell you that I misplaced my pointer, but Anne pulled one off an old boom box.  It is duct taped.  The judge loves it and always makes a comment about the old chevy it must have come from).   The therapist points at C’s moving image with it.  This brings to life the problem we’ve heard described and pretended to understand.  But really haven’t until now.   I look at her with a smile and ask what size shoe she wears.   Perfect!

Basically I can hear a groan or snort or some sort of gasp for air from Nick’s direction. 

Can you put this brace on and show the jury how it works.

Sure she says. 

But before she can put it on, Nick loses it.  A major meltdown moment.   In a loud voice he accuses me of wasting time and basically of being a bad lawyer.

This is of course the moment that I’ve been waiting for.  Never thinking it would actually come.  Because lawyers know that no matter how much we may argue, we must always be professional.  Especially in front of a judge, clerk, 14 jurors, 3 lawyers, 1 paralegal, 1 tech guy, my daughter, and several other observers.

Apparently I’ve gotten under Nick’s skin.

When Nick is done berating me, I ask with limpid eyes, in a sweet, soft, hurt voice: why are you being so mean to me, I’ve been nothing but nice to you.  

This does not calm him down.

Judge W and the jurors would surely like to break out the popcorn.

He objects to having the therapist put on the brace.  I respond in the same soft, sweet puzzled voice.  But Mr. Scarpelli, the last witness said I should ask this question of PT and that’s what I’m doing.  Objection overruled.

The witness puts on the brace.  The jury stands up to look.  Just like they did for me.  And learns something new.

 Photo:  Nick unsuccessfully objecting to my cross demonstration with the blasted brace.

My mother brought a 73 year old palm reader to Thanksgiving dinner. 

Mom:  I want to bring my friend Ed.  He is really bright.  He is an attorney and a palm reader and I share my energy with him.

Me: Mom, I have already set the tables for 27.  We do not have room.  I don't have any plates left and had to get extra silverware from the office.

Mom:  (guilt tripping me) I never bring anyone.   He doesn't have anywhere else to go. 

Me:  (guilt tripped yet again) Ok mom, that's fine.  But tell him no palm reading.

Ed shows up late.  With a suspicious looking briefcase and a box of chocolates.  We have already finished our dinner.  Mom makes him a plate.  He is a nice, jovial fellow.  As soon as he's done eating, he starts reading people's little fingers.

I'm trying to ignore all this.  Am in another room.  Noelle comes in and says that he has declared that Ben (my 6 year old nephew) has paranormal capabilities.  Oh great.

Mom corners me.  He really wants to give you a reading Karen. 

I'm busy mom.

She bides her time.  Corners me 15 minutes later.  I sigh.  Walk to the living room. 

Okay Ed, I say with a smile.  Read away.

Sit down on the couch next to him.  Mom perches on the chair across from us.  With a flourish he whips open the briefcase.  Pulls out a magnifying glass just like the Pink Panther uses.  Puts on a large pair of spectacles.  Holds my little finger under the glass.  Shines a flashlight (where did that come from).  Quite the show.

You are very very honest, he says admiringly.

Well, that's good, I say.

He is studying my little finger.  Turning it this way and that.  Hmming and Hawing. 

Yes, you are very honest.  You also...

He looks intently into my eyes.

You also live in the moment...you aren't a planner.

I smile.  Well, actually Ed, I do live in the moment but I am also a planner.

Hmmm.  He says.   Let me see your little finger again...

Ed is actually quite wrong.  Trial lawyers are planners.  Our ability to act in the moment stems from our painstaking preparation. 

Preparation isn't optional.  It is essential.  In Washington we have fairly strict pretrial discovery rules.  If we don't disclose witnesses, evidence, and opinions on time, we can be barred from using them in trial.  This may vary  depending upon the judge.  But why take the risk.

Here is the most current version of my trial checklist.  

• Court paperwork
  • Trial brief
  • Jury instructions uncited emailed and hard copy
  • Jury instructions cited emailed and hard copy
  • Anticipated pocket briefs
  • Joint statement of evidence
  • Evidence notebooks
  • General voir dire

• Voir dire
  • Neutral statement of the case
  • Tracking chart
  • Key topic outline
  • Key points  from focus group
  • If possible – heads up juror information
  • Scissors (recommended when re-seating jurors during preemptory process)

• Liability
  • Incident reports
  • Incident documentation
  • Standards, rules, codes
  • Written witness statements
  • Recorded witness statements
  • Photos
  • Video
  • Animations
  • Story boards/Visualizations
  • Poster boards of key visual evidence
  • Models
  • Physical evidence
  • 30b6 deposition designations
  • Party deposition designations
  • Original depositions for filing
  • Perpetuation deposition videos with edits per court’s rulings on objections
  • Identify all lay witnesses who will be testifying
  • Identify all expert witnesses who will be testifying and their opinions
  • Impeachment material

• Damages
  • Photos/video of plaintiff before incident
  • Photos/video of plaintiff after incident
  • Relevant preincident medical records
  • Relevant post incident medical records
  • Medical bills and Medical bill summary
  • Xrays, MRI, CT films
  • Medical animations
  • Medical Diagrams and charts
  • Wage loss documentation
  • Life care plan report
  • Economic report
  • Life expectancy analysis
  • Poster boards of key visual evidence
  • Physical evidence
  • Original depositions for filing
  • Perpetuation deposition videos with edits per court’s rulings on objections
  • Identify all lay witnesses who will be testifying
  • Identify all expert witnesses who will be testifying and their opinions
  • Impeachment material

• Equipment
  • Projector and screen (get preapproval from Bailiff)
  • Projector stand
  • Ipad loaded with all exhibits and deposition transcripts via an app
  • Laptop
  • Laptop stand
  • Remote Clicker for laptop
  • elmo
  • speaker
  • computer cords
  • Post its
  • Easel
  • Butcher paper
  • Pointer or laser pointer (if using television instead of projector need old fashioned pointer)
  • Powerstrip
  • Painters tape
  • Permanent marker pens in several colors
  • Thumb drive

 Photo:  John setting up trial equipment in King County Superior Court September 2012.

The clerk sends an email on Thursday.  Our trial starts Monday.  Or it is supposed to.  This case has been scheduled for trial for over a year.  But SNAP!  Just like that.  A criminal case pushes its way past us.  This happens in November.

Fast forward.  We are now set to start the same trial June 4.  After a six month delay.  Everyone is ready to go.  Some of the witnesses have booked flights and hotels.  But wait.  SNAP!  Just like that.  We are bumped again.  By another criminal case.    We are now supposed to start this whole thing over again in October. Supposedly.

Now you may be wondering.  So what.  A little bit of inconvenience.  What's a year in the big scheme of things.  Well, let me tell you what has to be done everytime a very large case gets delayed like this.  In fact - keep this list.  In case this happens to you.

1. Have melt down holy cow moment
2. Ask the clerk to ask the court if there's anyway to save the date
3. Hear that there's no way because criminal settings go first
4. Talk to the other attorneys and paralegals and assistants for all the parties and whine and try to come up with a solution for the court
5. Give a solution to the court
6. Have the solution rejected by the court
7. Have paralegals stall the witnesses who are getting ready to come to town until there's final confirmation that the date is completely gone
8. Ask for a hearing with the court to discuss possibilities, probabilities and logistics
9. Be told by the clerk that the court is in trial and cannot have a hearing for a week
10. Continue to stall witnesses who have scheduling questions
11. Read email from the clerk giving possible future court dates
12. Read emails from defense attorneys saying they cannot do the earlier date, they can only do the later date
13. Gnash teeth, whine, groan, moan and continue to have holy cow fit
14. Ask the court why we can't start the trial a week late to accommodate the criminal trial
15. Be told that another criminal trial is set for the first week of July.  Our trial is too long and would cause the criminal trial to start late (Oh poor them.  Join the crowd).
16. Realize we are trapped at both ends by criminal trials
17. Field worried messages from paralegals that witnesses want to know what is happening
18. Finally tell paralegals to tell witnesses we are being bumped again
19. Try to have zen calm yoga like moment.  And fail
20. Eat an entire costco cinnamon roll as a snack
21. Push papers around on desk
22. Look at our trial flow chart of all the witnesses we spent weeks scheduling.  It will now have to be completely redone.
23. Take Nala potty
24. Call my three girls - Alysha put on yogapalooza at the UW today.
25. Stew
26. Have paralegal cancel three weeks worth of hotel reservations (trial is out of the area)
27. Decide can now go to visit Noelle's new college.  Book last minute flight.
28. Look at box of three exhibit binders in the corner of my office.  Decide they need to be moved.  Don't move them
29. Send email to opposing counsel to finish his edits on depositions so we can have the films finalized.  Not that it matters now.
30. Have lunch with friend Jeff Donchez who reminds me that plaintiff lawyers are "glass is half full kind of people."
31. Email with friend Pat LePley - book lunch for June 4 which is when we would have been in trial.
32. Walk past our "war room" filled with our trial exhibits, blow ups, and equipment.  Seethe.
33. Come to the house to meet Cristina and Noelle.  Move two chairs (they moved them) to my office.  Kiss them goodbye
34. Give Catherine my other two office chairs.
35. Take Nala potty.
36. Commisserate with Anne (my wonderful paralegal)
37. Buy 5 dark chocolate with almonds candy bars to support Paul Whelan's son's crew team
38. Meet with John (my other wonderful paralegal) about getting things done on another case
39. Realize there are two other trials set earlier in October.  I will be log jammed
40. Hear wierd noise.

Nala is retching.  Grab garbage can to put under her mouth.  This does not go well.  She's running.  I'm chasing her around the office with the garbage can.  Trying to be nice but not wanting bad stuff on the carpet.  Finally corner her.  Substitute her water bowl for the can.  Hold it in front of her face.  She is heaving.  But I'm shocking her at the same time.  Tell her - it's okay.  Keep waiting for the moment.  But just like with the hiccups - I appear to have scared her out of them.  The moment passes.

For both of us.

Photo:  Nala's face says it all.

The only health condition the defense won't try to spin - is death. 

One technique used against plaintiffs, is to paint them as negative whiners.  The defense mocks the injured person by saying they are overly focusing on their injury and see the glass as half empty.  The logic is - if the person had a better mindset - they would see the glass is half full and everything would be better.  

If the glass is half full defense works as planned, the jurors will feel nothing but irritation towards the injured person.  Because no one feels compassion for a person who only sees and wants the worst in every situation. 

In this trial, a drunk driver hit a man and crushed various bones throughout his body.  Defense doctors were hired to testify that his injuries were not really so bad.  Bones do heal ...with the help of metal plates and screws okay sure - but they do heal, they said.

In closing, I collected all of the "minimizing" statements of these doctor experts.  Used the above photo.  And roasted them by co-opting and presenting "Defendant's Glass Half Full List."

• He can walk even if he has to stop (after a few blocks)

• He can write with his left hand (even though he wrote with his right before)

• He can ride and drive in a car (but is still scared of trucks)

• He can travel (though he avoids it and has to move around constantly)

• He can cook to a certain extent

• He has range of motion (though he had to give up being a professional spin instructor and can no longer climb mountains, run, or engage in professional dance)

• He is off of narcotics (but still has pain daily)

and so on.

Co-opt this defense.  Show the jury that your client believes that the glass is half full - even though bad things have happened. 

Photo:  From a PPT slide used in seveal trials last year.

Car v. Pedestrian Jury Instructions W Cites FINAL.pdf

There was one pattern instruction in this set that we didn't like.  The problem is - judges love pattern instructions.  So it was given.  A few months after this trial, that pattern was amended.

Even so, the jury did pretty much the right thing and this young woman received a nice verdict.

Closing.pdf

This powerpoint was used in closing statement today during trial. 

The expert witness is making my blood boil.   Direct exam is a pre-rehearsed script.  The defense attorney reads a question the expert spews back an answer.  They don't come right out and say so, but the inference is the client isn't working because either: a) lazy or b) hoping for lawsuit lottery.  They don't have to be so nasty. 

Hand is on client's arm.  Whisper words of kindness from time to time.   Keep mask of pleasant person firmly on face.  Do not roll eyes.  Realize foot is tapping.  Become still.  Like a falcon.

The judge turns to me and says the magic words:  cross examination?

Even though you cannot see what physically is going on, this transcript gives you a sense of the drama of cross examination.  The first two battles involve seemingly simple questions.  First, want him to tell us how much he charged to work up this case.  Second, want to get him out of the witness chair to list the injuries on a white board.  

He balks at both simple requests.  And off we go. 

Click here to read the transcript:

 Skilling cross.pdf

Everything we say can be turned around and used against our clients.  Lawyers are trained to analyze fact patterns in terms of logical progression.  A leads to B which results in C.  We think if we're logical that's good enough.  But many of members of the public don't believe a thing  lawyers say.  According to various polls, we are one step above or below used car salespeople and politicians (no disrepect intended). 

Our civil justice system was created because of the belief that the wrongdoer defendant should take “personal responsibility” for causing injury and damage.  But lately, the message of “personal responsibility” has been flipped around.  No longer do jurors focus on the defendant’s accountability.  Instead, they scrutinize the plaintiff. 

In trial, we can't expect jurors to take what we say at face value.  Suspicions are high.   This grid illustrates how our intent to communicate positive messaging may lead to the opposite result if heard by a skeptical juror.

 In trial, we can't simply speak the truth.  We also have to explain and prove why it is true.   

Most of us have no idea what the clerk and bailiff actually do.  We suspect the Judge gives them instructions that they carry out.  We tend to mix them up and view them as indistinguishable.  But they are quite different.

In trial, the clerk is in charge of the physical trial exhibits and court documents.  The bailiff takes care of the jury and courtroom set up.

Attorneys who stomp around the courtroom and act rudely to court staff create bad karma.  You know the feeling.  If someone is rude and disrespectful towards you, the response is to either tune them out or become hostile.   Both are natural human defense mechanisms.  Jury trials in negative energy courtrooms aren't real fun.  Here are some tips on dealing with court staff:

• Learn their names and address them properly
• Always say please and thank you
• Don't walk up to the bench and expect they are there to serve you instantly.  Wait until they are finished with their task and ready to help you
• If they ask you to do something do it
• If you need clarification, ask for it
• Always say please and thank you
• Do not rearrange any furniture in the courtroom without first getting the bailiff's permission
• Do not set up equipment without first getting the bailiff's permission
• Do not create any trip or other hazards.  If you need to tape down extension cords bring your own painter's tape (not duct tape)
• It's okay to talk to staff during recess about life, so long as they want to talk
• Do not try to hand anything directly to the judge.  All things must be passed through the clerk
• Always say please and thank you
• Do not bang on the courtroom door trying to get in at the begining of the day or after recess.  Staff will let you back in when it is time
• Do not hang around the courtroom after the court excuses everyone for lunch or at the end of the day.  Get out of there so staff can go on break or leave.
• When the Judge is off the bench, don't act as if staff are invisible. They can see and hear even if they are being quiet.
• In emails, always say please and thank you

And perhaps the most important of all - don't eat everything in the candy dish (unless you replenish it occasionally).

Photo:  The Hon. Michael Heavey's clerk during the trial January 2011

In trial, David Ball’s rule is to spend less time on showing fault than proving loss.  His point - we are not going to trial to simply get a verdict of responsibility.    It isn't enough for a jury to tell the defendant "you did it."   The jury needs to make things right.  Our country has decided that isn't done with "an eye for an eye."  Instead, the jury sets a money value that is needed for the plaintiff to get back to even. 

The defense wants to turn the jury's attention away from making things right.  It does this by making the jury's job complex.   The defense will fight even thouse cases where fault should be crystal clear.  

In my last trial, an SUV driven by a 16 year old, unlawfully changed lanes and ran into a moped driver.  There were two independent eye witnesses.  They both testified the SUV driver made an unsafe lane change.  Still the defense lawyer blamed the plaintiff through the whole trial.   Why you ask.

Complexity is a friend of the defense.  The more complex, the more confusion.  The more confusion the more hesitancy.  The more hesitancy the more likely a defense verdict.

In our case the jury didn't buy that.  They ruled in favor of the plaintiff.

We set the case up for disaster if we build it way up and ignore what the defense is going to do to it.    This would be like a basketball coach only having the team practice offense. 

Instead, the coach studies the opponent.  Maybe sends out a scout.  Watches film.  Devises strategies.  Has the team practice then implement them. 

We've all heard the saying -sometimes, the best offense is a good defense.

Opening statement is similar.  We don’t want to spend too much time being defensive.  That will give too much credence to the other side. 

But we need to anticipate the defense.  We need to be upfront and tell the jury about our case weaknesses.  To prevent the defense from blowing them out of proportion.

I'm on the treadmill watching Oprah.  She is interviewing Dr. Oz.   Their theme "5 lifesaving numbers."  He gives vivid easy to understand verbal answers.  He uses a video recreation.  He has a demonstrative aid.  I like it when he punches the plaque out of the artery.   It is really super.   Oprah is a phenomenal interviewer.  She channels the audience.  She “is” the audience in the moment.  Her goal is to educate and impress upon the audience, the importance of understanding and following Dr. Oz’s medical advice.

Really when you think about how we deal with our own experts – sometimes (in my opinion) we have an over inflated opinion of what we add to the equation.  A really great expert needs to be showcased like Dr. Oz.  We need to ask questions to avoid objection that it is a narrative.  Also, we don’t really want a narrative because that will put jurors to sleep.   But aside from the risks of boredom, I find a lively spontaneous chatty back and forth dialogue to be the most engaging.   So my best plan on how to do direct of an already good testifying expert – is to be Oprah.  I “am” the jury.   

The temptation of rebuttal is to make absolutely positively sure the jury is told the right version of the case.  To have the last word and correct the defense.  But the jury wants to get going.  They are ready to start deliberation.  They’ve listened to the lawyers for long enough.  They don’t want to hear a rehash of what they already have been told.

Here are some of the mistakes lawyers make in rebuttal.

1. Take notes of everything the defense is saying.  If you have someone to help you, fine.  But if you are taking verbatim notes, you are missing the bigger picture of what is going on in the courtroom.  How is the jury reacting.  Do they look happy and pleased with the defense.  Are they withdrawn.    Plus what are you going to do with all your notes.  You don’t have time to analyze them.  As soon as closing is done, you are going to have to make your rebuttal. 
2. Act busy and disinterested during the defense closing.  Perhaps you are whispering with your co-counsel or client.  You rattle papers or start packing up the files.  The jurors are fine with a battle, but they don’t want you to be rude and disrespectful.  Plus it isn’t fair – they have to quietly sit there.  They expect you to do the same.
3. Use a line item approach.   You address each ridiculous, rude or incorrect statement by the defense.  You restate the case facts to reiterate that you are on the right side.  By now the jurors have heard it from plaintiff’s side in opening, during testimony, and during closing.  Hearing it for the fourth time isn’t going to make a difference.   Will this redundancy hurt the case?  Perhaps not.  But do you want to the jury to walk into the jury room thinking how boring and repetitive you were?  Not exactly a big positive motivator.
4. Attack the defense lawyer personally.  Yes, it is hard to resist the urge especially if they are cruel or lie.  And there are always exceptions.  But generally, ad hominem attacks will only make the jury disgusted with you.
5. Spend too much time.   The jurors have heard closing and have just about made up their minds.  Unless you are a great magician – there’s not much you can do to change them.  The last thing you want to do is drone on in a rambling unfocused manner. 

Really, once closings are over the only thing that will now move jurors are other jurors in the deliberation room.  This is your last chance to empower the jurors who are on your side.  You want them to fight hard for your client’s case.  The best thing you can do is to help give them momentum, energy, and passion. 

Here’s how I do this.  I sit quite still during the defense closing.  I completely concentrate on the lawyer and the jury.  I will have a small two inch sticky pad.  I will occasionally write a word or phrase on it.  As the closing continues I will replace the note with a winnowed version of the note and so on until I end up with at most five points.  I then will reduce it to three points.  Usually I can then reduce it further to one point but I don’t sweat it if I end up with two or three.

The defense lawyer will often say a line like this:  “Now comes the hardest part of the case.  I have to sit down and the plaintiff attorney gets to speak to you one more time.  I don’t get to say anything after that.  This is because the plaintiff bears the burden of proof.  They get to go first and end last because they are the ones who have to prove their case.   The plaintiff attorney will come up here and tell you point by point why my closing is wrong.  And I can’t correct them.  But that is how our system works.  Thank you for your attention.”

My mind is not cluttered with yards of notes and lists of specific points to address.  I focus internally.   It feels like a laser is slicing through the jumble of thoughts that are seeking to distract me from the essence of the message that needs to be made.   I breathe.  Usually briefly close my eyes.  Get up and then speak from the heart.

I know, I know.  This isn’t really explaining how to do it.  But there is no formula.  There is no outline that can be prepared in advance.  The art of rebuttal stems in the ability to come up with a powerful rejoinder on the fly.  By the end of a trial – you know everything there is to know.  And this is the final moment you have to trust yourself to say the best thing that can be said.

Attached is an example of one of my rebuttals from a recent case.

The jurors are the ones who are supposed to “speak the truth” in voir dire.  This is not a time for attorneys to dazzle the jury with brilliant manipulative dialogue.

Of what use is eloquence?  He who engages in fluency of words to control men often finds himself hated by them - Confucius

Voir dire is interactive.  It is the “hello, nice to meet you, are you the right person to sit in judgment” part of the case.   Yet, for many attorneys voir dire is torture.  We need to think like a lawyer but communicate like a good neighbor to a large group of people we know almost nothing about.  The approach needed is wholly different from any other type of legal proceeding.  Here are some of the bad habits attorneys have when doing voir dire:

First, we talk too much. “Thank you for coming…we know how little you get paid for your service… it is your civic duty… isn’t the weather great…”  These statements waste time.  They are patronizing.  We look like we are procrastinating.  Add to this our love of speeches.  Drawn out stories about our children, friends or great aunt Sally.  Lectures about the Constitution or some other artificial construct through which we hope to send a subliminal message.  The more we talk, the more we don’t hear.  The less we hear, the less we learn about the jurors. 

Second, we don’t know how to act.   We are in suits.  They are dressed casually.  We stand.  They sit.  The lawyer in us wants to grill each juror.  To flip them inside out, to make sure they aren’t biased and will be fair.  They know we want to do this to them so they erect a wall.  They find power in their numbers.  The great divide must be breached and it is up to us.  We have to go over to the other side.  We have to do it extremely quickly. People form impressions within one-tenth of a second. We need to be every day people kind of lawyers.  This means that we have to lighten up.  Instead of scowling we need to smile.  Instead of trying to impress everyone with our vast knowledge, we need to show humility.  Our language needs to be from the current decade.  We need to be real.  And we need to focus all of our energy on connecting.

Third, we are hoarders.  We love data, details and, outlines.  We collect, organize, analyze and scrutinize every single little bit of information we can find.  Since time is not on our side, the more junk we collect, the greater the likelihood that we will never be able to see the jurors clearly.   “What bumper sticker is on your car…what television shows do you watch… …what magazines do you read…”   These questions are generally a waste of time.  Quality not quantity is absolutely the best policy in voir dire.

Fourth, we are scared.  We tip toe around the edges of a delicate subject.  We don’t want to contaminate the jury by raising a negative issue.   But this wholly defeats the purpose of voir dire.   If there are concerns, voice them.  If there are worries, share them.   Better to find out who cannot be fair now, rather than later

Fifth, we want to be right.  We are impassioned advocates taking up the gauntlet on behalf of our deserving clients.  We are the way the truth and the light.  And when a juror doesn’t agree with us, that does not sit well.  We may begin to argue with them.  We may exhibit negative even aggressive body language.  We may want to educate them.  Take the McDonalds case that almost always comes up during a tort trial.  “Stella was not driving when she pulled the lid off the coffee...Her grandson was driving and had pulled over so she could add cream and sugar...  Liquids at 180-190 degrees can cause third degree burns in two to seven seconds...Those types of burns require skin grafting, debridement and whirlpool treatments… She had $20,000 in medical bills…California has punitive damages and we don’t.”   What do we gain from being “right” in voir dire – absolutely nothing.   Once you one-up a juror, watch the body language.  The crossed arms across torsos.  The recoil as you approach.  The walls close.  And you are right back where you started, on the other side of a big divide.

Voir dire works best when the attorney and the jury are in the mix together.  See, the blog post "tips for Attorneys: Voir Dire for more thoughts on how to do this right. 

[1] Janine Willis and Alexander Todorov, First Impressions – Making up your mind after a 100-Ms exposure to a face.  Psychological Science.  Princeton University (2006).