Mastering Voir Dire: How Defense Counsel Can Turn a Cold Room Around

Mastering Voir Dire: How Defense Counsel Can Turn a Cold Room Around

According to an article by Nick Polavin of IMS Legal Strategies, silent juries during voir dire are becoming increasingly common, as plaintiff attorneys use brief, uninspired questioning to establish a low-participation norm (voir dire is a legal term referring to the process of questioning potential jurors and witnesses to determine their suitability for a trial). Defense counsel, expecting a more engaged jury pool, is left scrambling to adapt.

Polavin says the challenge begins when the plaintiff’s attorney sets a passive tone by asking vague or awkward questions, prompting minimal juror interaction. With little information gleaned, the defense attorney approaches the podium, ready to dive into targeted questioning. Yet, the room remains unresponsive. Even direct queries like, “Who has a negative opinion of corporations?” yield few, if any, hands. Faced with this quiet resistance, the defense attorney may feel compelled to skip critical questions, limiting the scope of juror evaluation and undermining their ability to identify biases.

Despite securing a few cause challenges, the defense often leaves voir dire with insufficient insight into the jury’s composition. Polavin notes this can be a significant setback in plaintiff-friendly venues, as the plaintiff may need minimal cause challenges to eliminate the most problematic jurors and shift focus toward preconditioning the rest.

Polavin suggests that defense counsel must actively reset the tone to counter this strategy. Starting voir dire with a compelling introduction that emphasizes the importance of honest juror feedback is essential. Icebreaker questions that invite jurors to discuss their jobs or experiences can help thaw the room. Maintaining natural body language, such as nodding and expressing empathy, encourages jurors to speak openly, even when their opinions may be critical of the defense.

When faced with silence, Polavin says defense attorneys should pivot by rephrasing questions, scaling down their specificity, or directly acknowledging the lack of response. For instance, if no one admits to distrusting corporations, asking, “Who believes corporations prioritize profits over safety?” might elicit the necessary responses. Persistence in uncovering these moderate opinions can provide the foundation for effective cause challenges and strategic jury strikes.

While a passive plaintiff’s voir dire can dampen juror engagement, defense counsel armed with adaptive techniques can reignite participation and turn the tide in their favor.