fall 2003 vol.9 no. 2                                                                                                                            Return to Contents
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Programming and Persuasion
in Voir Dire - Start Winning Your Case from the Beginning

by Jason S. Bloom, M.A.

I. Introduction

Persuasion is the art of creating a specific opinion or attitude in another individual. Effective persuasion is borne out of knowledge about how the human mind works and the application of such insights to the intellectual and emotional components of attitudinal change. Therefore, persuasion in the courtroom is not simply stating the facts of a case to a jury of one’s peers in an effort to influence. It is more complex and involves strategy. Persuasion of a jury most often begins with their first impressions.
The power of first impressions is one that cannot be underestimated. Whether at a business meeting or a social setting, first impressions are pivotal toward the formulation of long-lasting impressions and attitudes. This holds true in the courtroom as well. Jurors develop first impressions of attorneys, witnesses and corporate representatives even before they are introduced. Thus, persuasion tactics and techniques are fundamental tools to use at the beginning of every trial to tailor those first impressions.
For the jury, trials commence with voir dire, which signifies the first exposure of the prospective jurors to the case. The Courts typically reserve voir dire as a means of choosing a jury. Yet, in many venues across the country, it also provides an opportunity for attorneys to begin communicating case themes and theories, and thus persuading potential jurors to affirm their positions. The questioning of prospective jurors serves two distinct but related purposes for the trial team: to gain information about jurors’ pre-disposed beliefs and biases, and to start programming prospective jurors with persuasive information. Therefore, the opportunities to use persuasive tactics begin well before Opening Statements.
While the conventional purpose of voir dire is to learn information about prospective jurors, attorneys should always use it, when possible, as an opportunity to present case themes and to indoctrinate prospective jurors. The indoctrination process prepares the prospective jurors for persuasion. The techniques outlined and discussed below can assist with the formulation of impressions and
hus the persuasion process, a process that relies upon an understanding of how jurors decide cases.

II. Dynamics of the Audience

In order to utilize persuasion strategies effectively in the courtroom, it is important to gain an insight into the dynamics of the typical jury panel. This means more than just knowing the demographics, life experiences or learning histories of the prospective jurors, which may be gleaned from juror questionnaires or juror identification cards. It is equally important to have an appreciation for the environment in which the prospective jurors are placed into and the apprehensions associated with jury service.

The average juror in the United States, charged with judging the facts and merits of a civil lawsuit, has arrived at the courthouse for jury selection with an array of personal issues and grievances that can affect any trial lawyer’s ability to relay messages and, more significantly, to persuade. Prospective jurors have been taken out of their day-to-day routines to serve their local governments. They are lifted from their normal support systems, put in a place of high authority, and given a cognitive challenge. Additionally, jury duty presents a tremendous hardship for some, forcing them to rearrange childcare logistics, reschedule appointments and take a leave of absence from their occupations. The financial and personal difficulties that jury service imposes are as diverse as the jurors themselves. Furthermore, the logistical inconveniences often compete with attorney presentations for jurors’ mental attention.
Beyond these personal dilemmas that pertain to external circumstances, prospective jurors face some unique psychological stressors. For many, the courtroom is a very intimidating environment. Prospective jurors often perceive that their civil liberties have been stripped when present in a courtroom. They cannot ask questions of the attorneys or witnesses. They are told when to arrive at the courthouse, when they can go home, when to take breaks and for how long. The unfamiliar geography of the courtroom also produces anxieties. Jurors must sit in the jury box all day long, forced to pay attention to long presentations by attorneys and drawn out testimony, with no control over the duration, the questioning or the answers. These psychological stressors, coupled with the personal inconveniences that confront jurors, typically reduce comprehension and retention rates of attorney presentations. Yet, the most remarkable part of it all, is that the jury has all the power. At the end of the day, when all is said and done, the jury decides the fates of thousands of individuals and corporations each year. The jurors are the only ones who get to vote.

III. How Jurors Decide Cases

Jury research that includes mock trials, focus groups, mirror juries and post-trial interviews with actual jurors reveals an abundance of information that details how jurors problem-solve cases. Essentially, these case-specific research projects have identified a predictable cognitive roadmap that jurors use to decide cases. The roadmap differs in some respects for each prospective juror, depending on individual differences and personality traits. The first three components of that roadmap are consistent among all jurors: character, duties, and conduct of the parties. In order to be persuasive, it is critical to know and appreciate what information jurors need to hear and will likely use to formulate positive impressions about those key issues and ultimately return favorable verdicts. The decision-making strategies of jurors, and the cognitive constructs and devices they use, must be capitalized upon during any attempts at persuasion in voir dire.
The cognitive roadmap begins in voir dire with impressions about the character of the parties, who they are. From the moment that prospective jurors come in contact with the parties involved in the lawsuit, the character assessment process begins. These assessments can be somewhat influenced by pre-disposed beliefs and life experiences that jurors bring into the courtroom with them. For instance, popular corporations have reputations attached to them. Big corporations typically have stereotypes associated with them. These dynamics are difficult to overcome, as many pre-disposed beliefs are deeply embedded within jurors’ thinking patterns. Additionally, it is at this stage that jurors try to determine whether the parties and their respective representatives are trustworthy and can be considered to be reliable sources of information.
Next along the cognitive roadmap is the jurors’ perception of the duties of the parties involved in the lawsuit. Without external guidance, jurors typically self-assign duties to the parties, and then determine whether those duties were fulfilled in the proper fashion. They develop standards of care and conduct, outside of the law but based on their perceptions, and then judge the parties by them. It is not unusual for these standards to be entirely inconsistent with the law or even regulatory guidelines established by the government. Post-trial jury research has shown that it is the failure of defendants to live up to these perceived duties that produces adverse verdicts.

The third stop on the roadmap is a jury-level assessment of the conduct of the parties. After learning the issues in the dispute, jurors ask themselves if the behavior of the parties is fair and honest. They internally deliberate whether the parties have played by the rules. It is important to note that corporate conduct and citizenship have been widely shown to influence verdicts. At the same time, though, jury research also indicates that fairness is largely determined by jurors’ own moral compasses.
All three of these jury decision-making components are explored by jurors at the beginning of trial, as early as voir dire. Their mental impressions and conclusions formulate a cognitive filter for ensuing testimony and evidence. After the jury selection process, jurors continue to progress along their cognitive roadmap throughout the course of trial. Ultimately, the jury panel, as a whole, ends at the same point after deliberations. The final points along these cognitive maps are less defined due to individual differences; however, the first three components: character, duties and conduct are universally incorporated into the jury decision-making process.

IV. Components of Persuasion during Voir Dire

Cases can be won and lost in voir dire. This is because jurors learn a wealth of information about the parties in this stage, and thus formulate impressions and opinions based on their initial reactions. Juror perceptions are subject to manipulation and influence from the moment they enter the courtroom.
The most fundamental component that drives persuasion and attitudinal change is trust. When all is said and done, prospective jurors tend to agree with attorneys whom they trust. Trust is established through meeting jury-level expectancies about the role of an attorney and being consistent in the courtroom. Prospective jurors, through pre-disposed beliefs and life experiences, have configured expectations regarding attorneys. They will expect them to be professional, courteous and passionate in the courtroom. Any violation of these expectancies or behavior that contrasts attorney stereotypes may interfere with the generation of trust. Consistency in demeanor, attitude, and facts affects trust levels afforded to attorneys as well. Most prospective jurors will give very little latitude to attorneys they perceive as lying or misstating the truth. More often than not, this perception arises as the result of a pattern of inconsistency on the part of the attorney.
Social science teaches that persuasion is intimately connected with emotion. That means that in order to maximize the power of persuasion, attorney interactions and arguments must have an emotional appeal to prospective jurors. Active interchanges between attorneys and prospective jurors stimulate emotional reactions, and also allows for a more productive attempt at information gathering.

These answers will foster attitudinal changes toward themes and theories consistent with the defendant’s positions in the case.

V. Tactics for Defendant’s Voir Dire

Due to the tremendous impact often generated by primacy, going second at trial can be the worst position for persuasion. From the outset, the defendant is gravely hampered by primacy, which is the psychological principle that suggests that whoever presents their position first has the advantage of being the most influential. Additionally, jury research has shown that many jurors nationwide begin trials by automatically affording the plaintiff a presumption of validity, assigning merit to its claims simply because the lawsuit made it all the way to the trial floor. However, an effective voir dire can combat some of the effects of primacy and any presumption of validity, as well as leave a lasting impression upon jurors that can withstand the plaintiff’s attempts at persuasion during the evidentiary stages of trial. There are a number of tactics and voir dire strategies that, if implemented properly, can be outcome determinative toward the overall case. The use of these tactics in voir dire will teach jurors how to think, and thus prepare them to be receptive to the persuasive power of the evidence and testimony that will unfold during the course of the trial.

1. Inspire to Wait and Consider Alternative Explanations

Perhaps the most important voir dire tactic that can be used by defendant attorneys is to program prospective jurors to wait to hear the defendant’s story before making decisions about the case. Prospective jurors have to be deputized to be open to alternative explanations for why a dispute has occurred. An effective method for maintaining this neutrality during trial is to use the example of a mother who is being approached separately by her two sons regarding a fight at the playground. The attorney can set up the

Voir dire is the only time that attorneys are allowed to verbally interact with the jury panel.
Thus, it is the most opportune time for attorneys to instill emotion in their cases, offer
guidance to jurors about their roles, and most importantly, earn trust among the prospective jurors.

scenario and then ask if it is fair or reasonable to punish either child before hearing both sides of the story. It is hard to find any prospective jurors who would say it is fair or reasonable to punish the child giving the second story based only upon the story told by the first child. This analogy is effective because is has common-sense appeal, and prospective jurors can relate to it with ease.

2. Put the Best Face Forward

While it may seem like an automatic thing to do, the trial team should take great care when introducing the defendant and those associated with the defendant’s trial team in voir dire. The trial team should understand that this is when prospective jurors are formulating in their minds who the parties are and what they stand for. It is remarkable how quickly jurors can form character impressions, usually within 5-10 seconds. Introductions can be a way of painting a picture of the corporation for jurors. Many defendants on trial need to be humanized in the eyes of the jury. Far too often, defendants are perceived in a negative light due to jury-level stereotypes and pre-disposed beliefs. The best way to persuade jurors to view a client in a favorable light is to have clients command a sense of pride in what they are doing. Those being introduced must send out non-verbal signals of confidence, dignity and appreciation for the jury system. Additionally, trial team members must demonstrate to the prospective jurors that they respect and trust each other. Obviously, these dynamics cannot be communicated verbally; thus, non-verbal communication in the courtroom is key for non-speaking trial team members during voir dire.

3. Proper Placement of Burden of Proof

During voir dire, the defendant attorney should make sure that the prospective jurors understand that the burden of proof rests with the plaintiff. Knowing where the burden of proof lies can affect the persuasive power of the ensuing testimony and evidence. In some cases, especially those involving large corporate defendants, the burden of proof perceptually shifts onto the defendant. It is a natural reaction for jurors to subconsciously judge the facts based on what the defendant did or should have done, forcing the defendant to prove its actions or conduct was fair and justified. However, as revealed in post-trial jury research, many jurors wind up favoring the defendant because the plaintiff did not meet its burden of proof. Thus, the ownership of the burden of proof is a powerful dynamic that should be capitalized upon early in the trial. Simple questions about burden of proof, that can reinforce where it truly lies, are often enough to maximize its significance in the prospective jurors’ minds.

4. Contextualizing the Facts

Proper contextualization of the events and facts surrounding the dispute is an effective tactic to be used in voir dire. It is important to turn back the clock for jurors. Far too often, jurors lose sight of the relevant timeframe when the relevant events occurred. They are burdened with enormously complex amounts of information and it is very easy for them to misperceive the dates and times of critical events. Starting them off by placing key facts in the proper context will alleviate the cognitive burden that the case will demand, as well as curtail the effects of any earlier attempts by the plaintiff to mischaracterize certain elements of the case.

5. Overcome Sympathy

Sympathy is a powerful tool used by plaintiff attorneys in all aspects of trial. Almost always, plaintiff attorneys will capitalize on the emotional components of persuasion and attempt to arouse sympathy for their clients. Whether it be sympathy for injury, death, trauma or just for being the little guy in a business dispute, sympathy pervades the jury box on a daily basis. Sympathy for the plaintiff is generated through effective plaintiff voir dire and is obviously long lasting. The defendant, though, can effectively place a speed bump on the plaintiff’s road to the bank by diffusing the sympathy factor in voir dire. While effective attorney solicitation of sentiments involving sympathy will allow for challenges for cause during jury selection, sometimes, sympathetic jurors slip through the cracks or otherwise do not express their genuine attitudes until it is too late to be excluded from the panel. Thus, it is important during voir dire to program jurors and charge them to adhere to the Judge’s instructions, which usually state that sympathy may not be a factor considered when rendering a verdict. A sympathetic juror who will commit to the Judge’s instructions is exponentially less dangerous for the defendant. Jury research has indicated that jurors will adhere to the Judge’s instructions if deputized to do so. The earlier this deputizing occurs, the better, and thus a desire to embrace the Judge’s instructions may be persuasive toward fighting the effects of sympathy.

6. Getting the Panel Involved

In voir dire, it is important to get the prospective jurors involved in the process. Voir dire is the only time that attorneys are allowed to verbally interact with the jury panel. Thus, it is the most opportune time for attorneys to instill emotion in their cases, offer guidance to jurors about their roles, and most importantly, earn trust among the prospective jurors. As the panel speaks, critical information about their pre-disposed beliefs and life experiences is revealed. When prospective jurors raise their hands in response to questions, information is revealed as well. Yet, within these acts, speaking and hand raising, a public commitment regarding attitude is solicited. Jury research suggests that these commitments tend to be reliable as they are made in a public forum. And while many prospective jurors may not remember everything said by the attorneys in voir dire, they will likely recall the public promises they made and adhere to them. In addition, the way of thinking, or cognitive filter, that may be promoted by this type of interaction persists throughout the trial, even more than the substance of the interaction. Thus, the interaction process will instill a manner of construing the events of the case, which are likely to be beneficial to the defendant.

7. Inoculate Against Weaknesses

Lastly, it may be helpful for the defendant attorney to inoculate the prospective jurors against the weaknesses in the defendant’s case. This strategy of identifying and discussing the weaknesses of one’s case takes away their sting. More importantly, it allows the defendant to define the fact or piece of evidence before the plaintiff presents it in its case-in-chief, thereby diffusing its upcoming negative intensity and significance. The manner by which the weakness is articulated is key toward diffusing its intensity. On another level, the use of the mea culpa tactic is also a showing of good faith, as it indicates to prospective jurors that the defendant is not hiding from the facts- another means of building trust with the prospective jurors.

VI. Conclusion

Cases can be won or lost in voir dire due to the power of persuasion. This is not because jurors will learn critical pieces of information in the jury selection process, but rather since jurors’ begin their journeys along their cognitive roadmaps from the minute they enter the courtroom. The character evaluations performed, and the first impressions that jurors formulate about the conduct and duties of the parties are long lasting and thus determinative of the way that the ensuing evidence and testimony will be perceived. Jurors’ latitudes of acceptance afforded to case themes and theories hinges upon those dynamics.
Voir dire provides a unique opportunity to foster attitudinal changes in prospective jurors. Essentially, programming efforts made in voir dire can prepare the jurors for persuasion.

Jason S. Bloom is a litigation analyst at Courtroom Sciences, Inc. in Irving, TX. He holds a Bachelor’s degree in Psychology from the University of Texas at Austin and a Master’s degree in Forensic Psychology from John Jay College of Criminal Justice, City University of New York. As a jury consultant, Mr. Bloom specializes in assisting attorneys with case presentations and trial strategies. He has conducted jury research in venues nationwide on a variety of civil matters, using mock trials and focus groups. Additionally, he has formulated voir dire and jury selection strategies for many Fortune 500 and high profile clients. Mr. Bloom is a member of the American Psychology-Law Society, the American Psychological Association, and is a Board member of the American Society of Trial Consultants. He is a frequent lecturer and author on courtroom psychology. He may be reached at 972-717-1773 or by e-mail at jbloom@courtroomsciences.com

Texas Paralegal Journal © Copyright 2003 by the Legal Assistants Division, State Bar of Texas.

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