Who decides a case matters. When a lawsuit over what constitutes fair and just compensation for the victim of a car crash, dangerous or defective product, slip and fall, or incidence of medical malpractice goes to trial because the plaintiff and defendant cannot agree to a settlement, jurors decide.
In Virginia, civil trial juries typically consist of 7 to 9 people who are chosen from a much larger pool of potential jurors. Calls to serve on a jury are issued to residents of the city or county where the trial takes place, with court officials relying on voter rolls, DMV registrations and other official lists of qualified individuals to make up the jury pool.
People who respond to calls for jury duty show up at the courthouse on their appointed days not knowing whether they will hear a criminal or civil case—or even if they will be sent home without hearing a case at all. This kind of randomness is built into the jury system to ensure that plaintiffs and defendants receive as fair a hearing as possible.
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Jurors are not, however, seated for a trial at random. Attorneys for both sides engage in a process known as voir dire to select the individuals who will issue a verdict. Conducting voir dire skillfully can be as important as presenting strong evidence and questioning witnesses effectively.
Explaining the Voir Dire Process
A widely consulted online law dictionary defines voir dire as “the questioning of prospective jurors by a judge and attorneys in court.”
The site further notes that the process “is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve.” Reasons that a potential juror may be dismissed during voir dire include having extensive knowledge about the case, knowing or working with the plaintiff or defendant, being an attorney or law enforcement official, having been a plaintiff or defendant in a similar case, and expressing prejudice against one or both parties in the case.
The rules for conducting voir dire vary by jurisdiction and by judge, but the general process is the same everywhere. The judge asks most of the questions. The lawyers for the plaintiff and defendant are then permitted to request additional information from potential jurors. The number and scope of questions from lawyers are set by the judge.
Based on their responses, potential jurors are seated or dismissed. Attorneys typically have a fixed number of preemptory strikes they can use to dismiss potential jurors without stating a reason. Most people are dismissed for cause, however.
Voir dire ends when enough jury members have been seated. One or more alternate jurors will also be selected in case of vacancies due to unforeseen circumstances such as illness.
How We Approach Voir Dire
The personal injury and wrongful death attorneys with our Virginia firm always proceed from the view that the value of voir dire cannot be overstated. Accordingly, we make every effort to convince the trial judge that extended voir dire is in everyone’s best interest.
Giving the opportunity, we focus on two issues when deciding which potential jurors to ask to have struck. First, it is imperative to identify who the “tort reformers” are. We ask members of the jury pool whether they believe “there are too many frivolous lawsuits being filed in America today.” The answer reveals a lot about whether a person is inclined to consider our client’s claims with an open mind. A person who thinks most civil lawsuits are illegitimate could poison the rest of the jurors’ thinking.
We next ask if a potential juror understands the difference between the standards of evidence for civil and criminal trials. Only a preponderance of the evidence is needed to find for a plaintiff in a personal injury or wrongful death case. Starting this discussion during voir dire conditions jurors to accept the plaintiff’s case without feeling the need to be convinced beyond a reasonable doubt.
Speaking to Jurors During Trial
Continuing to remind jurors of the concept of the preponderance of evidence is important. Every case will have some weaknesses. One or two fine details cannot be allowed to overwhelm every other fact that points to the defendant’s negligence or recklessness, as well as to the plaintiff’s legal right to receive compensation.
Last, even with our decades of experience, successfully presenting a case to a jury can be daunting. We focus on being ourselves and letting the evidence we spent months collecting, organization and preparing for trial do the convincing. We are not in the courtroom to entertain or draw the majority of attention to ourselves. Putting on a show would only lose us credibility with jurors.