Men and Women Are Different: Choose Gender-Friendly Words in Formulating Voir Dire

Men and women are different. No big surprise there. They think differently. Still no big surprise. So it should come as no surprise that men and women respond differently when asked a voir dire question in the same way. But this isn’t a thought that occurs to attorneys most of the time; they ask questions of prospective jurors as if gender didn’t matter.

Gender matters!

Ask a male juror how he feels about something, and he’s likely to say “I dunno” or “Not much one way or the other.” Ask a male juror what his opinion is on the same matter, and he’ll usually expound with gusto. He will tell you more about himself by the opinions he stands firm on, and those he’s middling about or indifferent to, than just about any other indicator (except occupation).

Ask a female juror how she feels about an issue, and she’s likely to be verbose. She knows exactly how she feels about everything and is usually willing to share. Ask a female juror her opinion and you might not get much of anything. For the most part, “opinion” is for female jurors what “feelings” are for male jurors.

Word choice matters! Certainly the above is a generalization, and some women hold strong opinions, formulated as such, and some men are frank about their feelings. When it comes to voir dire, however, start by using the word that generally elicits the most informative response from the gender you are addressing. You can always make a different choice as you observe the response you get.

And oh, by the way, “What has your experience been with XYZ?” tends to be gender-neutral, in that both male and female jurors tend to be equally forthcoming when asked about their experience or lack thereof.

Pressuring Potential Jurors in Voir Dire Can Backfire at Trial

Time after time, what I discover in jury debriefings is that jurors don’t like being “interrogated” during voir dire. They don’t mind being questioned, but they heartily dislike attorney attempts to force answers out of them, and especially resent being pressured into a “yes” or “no” responses.

Now this wouldn’t be so critical, if it weren’t for the fact that people who feel pressured into a position, retaliate by disliking the person who pressured them. Cornered animals bite. So do jurors.

As tempting as it is to finally get that unqualified “yes” or “no” from a juror, be aware of the consequences. A juror who doesn’t like you will be far less susceptible to your arguments, and may very well damn you during deliberations. Not only that, but the unqualified “yes” or “no” is often the juror simply trying to wriggle free from your unwanted persistence.

You may receive a sufficiently truthful and more accurate response by framing your question differently such that it doesn’t antagonize your juror unnecessarily: “Is it more likely that you would . . .” People respond well to choice, as well as to the word “would” which is experienced as non-invasive.

The Power of Privacy: Juror Questionnaires

You would think that potential jurors, knowing full well that their written juror questionnaires will be scrutinized by the lawyers on both sides, if not also by trial consultants and other professionals, would respond to written queries the same as they do to oral voir dire. Certainly the same as jurors would respond to Your Honor at sidebar or in chambers.

Not.

Fascinating research* has recently revealed something I long suspected (and relied on) from years of jury selection experience: people feel that what is between themselves and a sheet of paper is private. Potential jurors are most honest with their true thoughts and feelings in response to jury questionnaires, to a surprising degree.

Jurors in the study failed to answer truthfully to 67% of voir dire questions, to 33% of attorney sidebar questions, to fully 50% of judge sidebar questions, and even to 20% of questions asked in chambers.

What does this mean to you? Simple. Any time it is possible to use a jury questionnaire, use it! Jury questionnaires do not need to be arduous, overwrought documents. Streamlined and written for maximum effectiveness, juror questionnaires will give you the most truthful look at how your potential jurors think and feel.

Jury questionnaires can make all the difference to winning your case.

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* Flores, D.M. (2011). Methods of expanded voir dire and written questionnaires: Experimental results on juror self-disclosure and implications for trial practice. Court Call, Summer, 2011, pp. 1-6.