By Don Keenan
The issue of whether or not questionnaires are better than traditional voir dire is a question that will be asked by our children and our children’s children. While I don't believe that this article is going to change things much, if it will influence one or two trial lawyers then it's worth it to me.
THE 7 REASONS NOT TO USE A QUESTIONNAIRE:
- Questionnaires Have No Personal Contact.
It goes without saying that a questionnaire is simply words on a paper. The jury provides answers to those words. First, you cannot read body language or facial expressions from a questionnaire, nor can the person answering the question make eye contact with you.
If someone were to try and tell me “an answer is an answer,” I'll tell you that person's got no business being a trial lawyer. An answer must be viewed through the lens of “do I believe the response?” Was there any hesitation; did the response feel strained or doubtful?
If someone can get a personal, emotion connection through a questionnaire, they're a better trial lawyer than I think I am.
- Questionnaires Give the Rat an Opportunity to Think.
We all know there are certain rats embedded in our jury panel. With their beady eyes and their long nasty tails, they're just conniving away to get on our jury to kill us. They know what to say and what not to say during jury selection. So why give the rat an opportunity to think and ponder the best possible answer to get on the jury? When I'm doing my rat killing during jury selection, I keep it fast and up-tempo. This is calculated in order to distract the rat and not give him time to think.
- Questionnaires Do Not Get the Full Value of the Juror's True Response.
Virtually every questionnaire I've seen has a ton of rhetorical yes/no or true/false questions. At a very minimum, the questions are often confining so the respondent is forced to choose between two extremes. If you are in a live voir dire, you can get a sense of what’s behind their verbal response by any hesitation or facial expressions. This tells you the juror wants to give more than the basic answer to the question. I've often said things like, “Ma'am, you look like you want to say more about that question. Please let us know?” or, “Sir you have a troubled look on your face. What problems do you have with this question?”
- A Questionnaire is not Bubba's Way of Expressing.
One focus group member told me he felt like a jury questionnaire was like applying for a bank loan. I asked him to explain why it felt like a bank loan application. He told me they are all pointed questions, without an opportunity to expand and tell his true answer. “When I go into a bank, I want to be able to sit across from a human being and tell them why I need the money and convince them that I'm worthy of it. I can't do that on a bank application,” he said.
- The Questionnaire Gives You No Opportunity to Go Off-Code.
For those of you who have watched the Keenan Method of Voir Dire DVDs, you know that there are 11 separate sections that give trial lawyers the opportunity to go off-code. Some are very short questions, such as: “Do any of you feel, during our time together, that I have by tried to invoke sympathy on behalf of my client through my questions, body language or voice inflection?” or the longer version, “How many of you have seen a trial on a TV show where a lawyer who is representing the victim will ask the jury for a certain monetary verdict? And how many of you believe the lawyer gives the true number they want, versus asking for more?”
Now there's a whole lot more to this than I've just written here, but this gives you a tremendous opportunity to go off-code and bond with the jury – which is something you cannot do on a questionnaire.
- Questionnaire Gives Zero Opportunity for Cross-Talk.
I have often lectured that voir dire is actually an “audition” for the jurors’ with me, to see who would be my best and who would be my worst on the jury panel. The manner that they answer the question gives me great insight as to who I want, and don’t want. When the judge permits (most do) my ability to create cross-talk, on many of the questions I can see actual deliberation occurring before my very eyes. (Cross-talk is when you take the response of one juror and ask another juror whether they agree or disagree or have a different take on that issue.) I strive to get everybody talking to me, and talking with one another. Not only is cross-talking tremendously effective, it also vastly shortens the time you need for voir dire. In my recent Boston trial, the judge required us to do one-on-one questioning of each juror at the bench. It took more than a week to get a jury put together. Daily, I reminded the judge that if he just permitted cross-talk, we would have had a jury in the first half of the first day.
I don't care how great of a lawyer you are, you can't get cross-talk through a questionnaire.
- Questionnaire does not reveal the True Face of the Black Hats.
I don't think I've ever had a voir dire where the Black Hats haven’t popped up like Jack-in-the-Boxes, objecting to this and objecting to that. I can tell on the faces of the jury that they despise this type of interruption. They heard the question, they think it's legitimate, and they want to answer the question. They simply can't understand why the Black Hats don’t want the question to be asked. So a good voir dire reveals the Black Hats as purely on-code; thus the contrast between you and them begins. You can't get a casting of the Black Hat on-code in a questionnaire. Finally, think of it this way: Every single question on a questionnaire can be asked in a voir dire; however two-thirds of effective voir dire questions will never make it to a written questionnaire.
Let me end this post with a funny story that happened not too long ago…
Whether it's true or not, I have a reputation among the Black Hats and Taliban at being pretty damned good at voir dire. Ryan Skiver and I were getting ready to try a case in Phoenix and the AIG brought in a super fancy Dan, sure enough trial lawyer from Los Angeles. This fella was a real piece of work and let me know that he could do the triple sow cow in the courtroom. After all his puffing up, I was a little befuddled when on the eve of trial they filed a motion to ban my voir dire and instead have it conducted purely by questionnaire. No question in my mind that they were afraid of what I could do in voir dire. What does that tell you about the effectiveness of attorney-conducted voir dire?
Bottom Line: You can't get with a piece of paper and a bunch of written questions what you can get with human interaction and face-to-face connection.