Outside Counsel

Focus groups are a lot like jury selection, and there is a lot here about why focus groups are not always an accurate tool which I think can be applied to voir dire. In both instances, the participants are anxious to please, and may not want to let on that they hold views that may indicate bias. I have often marveled at the fact that everybody I meet at weddings, or other social events has a strong opinion about the role of lawyers and lawsuits in society-- try asking the next cabdriver you have, or your dry cleaner-- but prospective jurors act like it's a question that has never crossed their mind. We are at pains during jury selection to act as though we do not want the panelists to pre-judge the case (even as we are trying to "air condition" their minds about the issues we think may be important,) and this means that we are asking for snap judgments about things that the people we are questioning have very little information on. Small wonder that outcomes are sometimes surprising-- often it is because of some tidbit of information that one side or the other-- or neither side-- knew nothing about. The trend in jury selection, in New York, at least, is towards limiting the amount of time spent on questioning. The thinking there is that this better respects the prospective juror's time, and perhaps this is so. In federal court, typically, the judge does the questioning, and it is usually all over by lunch time. I don't know if it makes that much difference to the outcome, but most New York lawyers I know prefer to stretch out a little on vior dire, and that is becoming an increasingly rare luxury. If you take the opportunity for advocacy out of the process, longer voir dire is probably still not long enough to give anyone a realistic picture of what a particular panel might do, but I am still not completely comfortable with the idea of artificially constraining questioning during jury selection.