WEEK 9 TEACHING NOTES

We will be working this week on voir dire. I will confess up front that I find this to be the hardest to teach of all the trial advocacy topics. First, there is no generally accepted theory of jury selection. Should we be following Darrow’s advice that the plaintiff in a civil case and the defense in a criminal case keep Catholics and Jews on the jury, but reject Northern Europeans, etc.? Or is Craig Spangenberg correct when he says that neither side should ever have a “pear shaped man” on the jury? Or is it all voodoo? No one can say. Second, the procedure followed as well as what questions are permitted varies from jurisdiction to jurisdiction, but also from judge to judge within the same jurisdiction. Finally, the Texas case law on voir dire is in flux and far from certain. In short, it is a mess.

I have come to the conclusion, which you may or may not agree with, that the two sessions on voir dire are best used for two purposes. The first is to obtain demographic information, e.g., employment, education, marital status, to the extent that juror questionnaires have not already developed this information. The demographic information can be used with far less than perfect accuracy to predict panel member attitudes. The second purpose is to find out the panel members’ attitudes about the issues in the case. This requires that we use open type questions that ask the panel members what they think about the values that underlie each side’s case theory. I do not believe that using voir dire to persuade the panel members to adopt our values, i.e. selling our case, is particularly successful. In Texas, it is flatly disallowed. A final, but equally important purpose from my perspective, is to have the panel members like and identify with us as lawyers for one of the sides.

All of these goals are constrained by the relatively strict restrictions in Texas on voir dire. The students have been provided with excerpts from the case law explaining these restrictions.

My goals for these two sessions are very limited: 1) The students should have the experience of standing in front of a panel and asking questions; 2) The students should be able to ask open ended questions of the panel designed to get the panel members talking and discussing how they think and feel about issues; 3) The students should be able to make some judgments about who they want on and, more importantly, off a jury. If you have other objectives, please share them with your students. Suggested critiquing points are in Building Blocks #8 & 9.

· We will be using the case file for the final jury trials. The students will be conducting voir dire on behalf of the side in Dixon v. Providential Life they will represent in the final trial, i.e. A’s represent Dixon; B’s represent Providential Life .

· Spend around 10-15 minutes at the beginning of class discussing what type of jurors we want and don’t want on our jury.

· Have the students suggest different characteristics, first stating whether they represent the plaintiff or defendant.

· Make a list on the board for the plaintiff and emphasize that the defendant’s list will be the exact opposite. · After a limited amount of brainstorming about desirable and undesirable characteristics in general, ask the students to think about specific categories: 1) Demographics—age, marital status, children, education, employment, income, religion, political party, etc., and 2) Attitudes about key issues in the case, etc. After having the students give their views about these different categories (and you should feel free to add to the list), ask them to think about how they can get the information they need to exercise their peremptoriness, i.e. what types of questions will elicit this information.

· The students have been asked to bring two outsiders to this week’s and next week’s classes to play the role of panel members. However, you will need additional bodies for the panel, so ask the students to assume the identity of someone they know well, preferably of the same sex, such as a parent, sibling, etc., and act as a panel member. That experience, I have found, is also helpful in understanding the process. Have the panel members sit in arrangement similar to what would occur in court.

· I suggest preparing a very brief jury questionnaire so that the students will have some basic demographic information for the role being played—age, marital status, children, occupation, spouse’s and children’s occupations, education, and, if having attended college, major in school. Have the volunteers and students fill them out as they arrive for class. While introductions are being made, send an adjunct to the Advocate’s office had have copies made of the questionnaires to give to the students before they begin Voir Dire.

· Have each student select two demographic traits on which to question.

· Have the first few students to perform give the introduction at the beginning about the purpose of voir dire, etc. on the assumption that not all judges will give this explanation.

· Each student’s questioning of the panel is followed by critique.

· The time limits for each performance depend on the how much time you consumed before getting to the questioning. Just divide the number of students into the remaining time to get performance and critique time for each student.

· With about five minutes left in the class ask each student who they would strike based on the answers given.

· After everyone has identified the one panel member they would strike, have each panel member say how the person they are playing would likely vote in the case.

And that brings us to the end of class.