Anatomy of a Civil Trial Since this little article is appearing in a journal primarily
directed to the plaintiff ’s bar, perhaps it would not be out of place to discuss not simply the actual goal of Voir Dire which is to achieve a level playing field, but also the role of the advocate, which is in one sense ultimately to tilt the playing field in your client’s favor at every stage of the endeavor. Trial lawyers are all historians trying to understand what
bearing our past experiences have in order to apply lessons to the present. Unfortunately, for the most part the younger generation of civil trial lawyers is not receiving the trial courtroom experience that older trial attorneys had for the simple reason that so few civil trials occur anymore and, although there may be some cross pollination from criminal trial experience, the jury considerations may be quite distinct. Tis makes it all the more important for young attorneys to primarily attend CLE that is taught by those with more experience or secondarily read books and articles written by those with more experience. I say primarily and secondarily because of the important opportunity to observe body language and verbal skills at CLE that is not present in books and articles. I firmly believe that good trial lawyers instinctively know
and accept what the philosopher David Hume delineated long ago that passion and not reason is the ruling element
in human action. May I suggest that you read that sentence again for that sentence tells us what we are attempting to determine in Voir Dire – what are the "passions” that are going to rule this particular juror or this entire jury’s action? Finding out what those “passions” are is as much an art as
a science, as the lawyer is at one time sociologist, psychologist, academician, gambler, salesman and fisherman. Of course, while trying to discover these passions, we
are also identifying them to the other side so that every time we want someone struck for cause, our loyal opposition will remind the judge that the potential juror just said they “could be fair.” Tus if the particular judge demonstrates a pattern of relying on such statements, the wise counsel desists from requesting a strike for cause so that at least he or she has not telegraphed all of his or her own strikes. We visually assess the potential jurors for personality and socioeconomic clues. Are they slovenly or fastidious? Calm or nervous? Do they smoke or chew gum? Are they wearing a suit or jeans? Do they “rebuckle their knickerbockers below the knees?” Well you get the picture. While manifesting scientific and academic disinterestedness, we cast culturally loaded language to see if we induce any bites.
Culturally loaded language may not denote much of excitement on its face but
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