Thanks to Verdict Magazine for publishing my recent article on preparing for Federal voir dire when you are used to state practice. Kastorf Law regularly assists other firms in conducting voir dire as part of its embedded trial counsel practice. Please read the article in full (and then call us if you have any questions) but here’s a brief primer on what you need to know:
How does Federal voir dire differ from voir dire in Georgia (and many other) state courts?
One of the most striking differences for many state practitioners when they 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. The result is that 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.
Here are some ways to prepare for Federal voir dire:
Ask other attorneys how the Court conducts voir dire.
Don’t just rely on the court for information. Track down attorneys who have tried cases in front of that judge. If you can’t locate someone who has recently tried a case, use attorney listserves as one resource. Don’t solicit reply all responses; best practice is to follow up by phone, so that you can have a more candid conversation. When listservs are not working, call attorneys who do appellate litigation or serve as embedded trial counsel. There’s a good chance they’ve either appeared before that judge or know somebody who has.
Prepare for a substantive first day of trial.
Expect your opening statement and at least one witness to take place on the first day of trial. Faster voir dire in Federal court means 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 may get testy 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.
Federal judges tend to be quicker to nix questions that stray beyond the most vanilla and talismanic statements about whether jurors can be fair and impartial. But each court draws a slightly different line. Clarify what that line is, and offer pre-trial 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.
Shorter voir dire also means you will be relying far more than is desirable on the jury’s demographics and any information on the jury questionnaire. This means you can gain an advantage if you have tailored data about how your case performs with particular demographics. Mock trials a good idea whenever the economics of the case support the cost, but using large scale or online focus groups can be an excellent supplement or alternative if you want a statistically significant data set to provide insight into your ideal juror.
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. A talented consultant should be able to quickly learn substantive information about most members of the venire, and put that data at your fingertips.
Focus on how you want to use your preemptory challenges.
You will likely not have time to have a real and meaningful conversation with each juror. Combined with the fact that the Court may allow too vague questions to meaningfully probe potential bias, strikes for cause will be rate. Most of what you are doing, then, in voir dire, is perfecting your preemptory strike selections. Focus your limited time on finding the information you need to make intelligent preemptory challenges.
Pay attention to 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 before you start how the jurors will be numbered, and in what order you will exercise strikes. Then focus heavily on the low numbered jurors. Because few jurors will be excused (and Federal juries may be smaller anyhow), the back of the room is often effectively irrelevant.
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. 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. Keep in mind that successful Batson challenges are still quite rare, particularly in civil trials, but using them occasionally can help deter opposing counsel from choosing a slate solely based on demographics.
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. You may get only one or two tiny bits of information from some jurors. It is essential that you record it. And it is virtually impossible to track information perfectly while asking questions. This means that it is absolutely essential to have engaged co-counsel for voir dire. (You should use embedded counsel for all trials, but if you refuse to do this, at least get a friend to come in for voir dire.) When its time to ask questions, focus on that, and let co-counsel have an organized system for recording information.