by Art Raedeke

To increase the effectiveness of voir dire, trial lawyers can benefit greatly by approaching the task as a job interview. The main goal in both settings is to determine which candidates are right for the position, i.e. to ensure that those selected possess the qualities to perform the job the way you want it done. A secondary goal is to convince the candidates of choice that they would like to "work" for you. Certainly, voir dire is subject to very different constraints than is the employment interview, and the objective of voir dire is more to determine who not to "hire." There are, however, many similarities. The following are some ways to help identify the right candidates for your job:

Know what you're looking for: When filling a job, human resources professionals start by developing a list of qualifications needed to perform successfully in that particular position. Similarly, lawyers selecting a jury need a specific profile of the juror traits that are most (and least) likely to result in a favorable verdict. These profiles can be based on past experience, but are much more reliable when founded on well-designed empirical jury research. In either case, knowing what you are looking for is the essential foundation for eliciting useful information from prospective jurors.

Focus on what's important: Getting right to the critical questions may be even more important in jury selection, where time is usually limited, than it is in an employment interview. In both settings, however, it is essential to prioritize the key qualifications and direct efforts at eliciting information about those traits. Unfortunately, the information that is most helpful in sizing up candidates is generally the most difficult to obtain. In the employment setting, certain questions about age, race, marital status and the like are taboo, partly under the theory that these characteristics are not related to job performance. A similar relationship exists when it comes to jury selection. Demographic attributes are generally poor predictors of verdicts. Instead, behaviors, attitudes, beliefs and life experiences are usually far more closely related to how jurors react to a case. As a result, voir dire should be directed to what prospective jurors have gone through in their lives and, more importantly, how they feel about their experiences and circumstances.

Let the candidates do most of the talking: Because the information that is most useful in making judgements about the candidates can be difficult to obtain, you need to let them do most of the talking. Lawyers often make the mistake of viewing voir dire primarily as the time to condition jurors about case issues and as an opportunity to start presenting their case. While there is some room for using voir dire for these purposes, that room is very limited. Can you imagine interviewing someone for a job and spending the time only telling the candidate about the company and why it is such a good place to work? Would you know whether that candidate is the right person for the job? Far preferable is to encourage the candidate to provide as much information about themselves as possible. Try to put the candidates at ease and encourage their natural behaviors to surface. Start out with easily answered open-ended questions that get the candidates talking about themselves. Having them talk about their jobs, family or leisure activities can serve to break the ice and get them to open up. Revealing something about yourself or demonstrating common bonds can also encourage candor and make the situation more conversational. When questioning jurors in voir dire, remember that they are not witnesses to be examined. Although your goal is to obtain as much useful information as possible, don't interrogate. Bear in mind that your other objective is to get the candidate to want to work for you.

Listen and observe: An effective interview of a job applicant or prospective juror depends not only on asking the right questions, it requires careful attention to the verbal and non-verbal responses given. In the job interview, candidates often slant their responses to what they think the interviewer wants to hear and will help them get the job. While prospective jurors may be less anxious to get "hired," they often give socially acceptable responses when their true attitudes or feelings are much different. For this reason it is important to pay attention not only to what answers are given, but to how they are given. Assess how the person reacts to your questions and how comfortable and responsive he or she is in answering. To ensure adequate attention to the responses given in voir dire, the questioning attorney should be freed from taking detailed notes. Having a colleague record information allows the questioner to remain an active participant in the conversation and to direct full attention to the answers and cues being provided.

Provide a job description: While it is impossible in voir dire to lay out for the prospective jurors exactly what their job will entail, it is feasible and desirable to inform them of key elements of the task to make sure they are willing and able to perform them. For example, when representing a client with an image problem, prospective jurors should be told that part of their job is to treat the parties equally and without prejudice. Asking questions to assess jurors' ability to do so and obtaining from them a commitment to try can put jurors on notice of one of the key requirements of their task.

Use a written "application": What the job application is to employers, the written voir dire questionnaire is to attorneys selecting juries. In both situations written responses serve at least two very useful purposes. First, they make the process more efficient by systematically obtaining basic background information, thereby allowing oral questioning to focus on areas of more specific interest. Second, they encourage greater candor about sensitive topics. This is especially important in voir dire where people are reluctant to discuss personal experiences or beliefs in open court.

Get them to want to work for you: Good job candidates often have options in choosing an employer. While the jury system offers less latitude, even jurors have some choice in for whom they work; they can work for you or for your opponent. The goal is to make them want to work for you. Jurors generally don't want to be friends with trial counsel and they don't expect the lawyers to be "chummy." In fact, they are very suspicious of such behavior. But showing genuine interest in prospective jurors and treating them with respect can help greatly to generate positive feelings about working for you and your client.

While comparing voir dire to a job interview has its limits, there are enough similarities to make it a useful model. For both, finding out which candidates are best suited to the job is the ultimate goal. .