Teaching Voir Dire with Bill Bailey and a little help from Trader Joes
Photo: Nala and I on a picnic table at Lake Wenatchee state park. Right before we jumped off.
Prologue:
Taught trial advocacy for many years at UW School of Law with dear friend Bill Bailey. Bill is now a full time professor at the school. Since teaching without him would not be the same, decided to turn in adjunct badge. However, today am going to the school to teach voir dire.
After factoring everything that could go wrong with traffic, arrive 30 minutes early. Make a quick pit stop at Trader Joes. Scan the aisles and choose: 1) bag of mandarin oranges; 2) container of cookie butter chocolates; and 3) small bags of mixed nuts and dried fruit. These are the secret ingredients.
Start class off. Ask question. Student answers. Reward follows. Chooses chocolate. Throw one at him and he catches it. Next person volunteers. Chooses nuts. Toss it over and miss target. Someone retrieves it for her. And so on. Needless to say, class participation is superb.
During this event, Bill is taking notes.
Here they are:
From: Bill Bailey
Date: January 13, 2015 4:49:20 PM PST
To: Trial Advocacy adjunct professors
Subject: The Monday Class Report-Voir Dire Training With Karen Koehler
Dear Faculty, In keeping with my New Year's resolution, I want to fill you in on the Monday class, which was a huge success, with great energy and participation by the students. Karen Koehler is a remarkable trial advocacy teacher who I was most fortunate to be paired with for a number of years here at UW. Her spontaneity, creativity and intuitive grasp make her uniquely suited to help students understand and perform one of the most feared parts of a trial.
Karen broke the session into two parts, first talking about trust and communication in the courtroom and "us" (lawyers) versus "them" (jurors). Then we adjourned to the mock courtroom "set" in 138 Gates. The students filled the jury box and the first two center rows of 138. One by one, they took turns asking the panel about attitudes and issues pertinent to the Constantine case.
Prior to adjourning to the courtroom "set," Karen asked for a show of hands, which class members considered themselves extroverts and which were on the introvert side. It was about evenly split. She went on to say that most lawyers are not the brash extroverts that the public thinks we are.
Then she asked for a show of hands on who was the kind that others confided secrets in during adolescence. About 5 students raised their hands. She asked them why they thought others trusted them. The replies varied. ""I am a good listener." "I care about people." "I could be trusted to keep a secret." "I am calm and rational."
Her provocative question that followed was, "If you weren't one of those people that others trusted then, what are the odds of shifting into that now?" One student had a very good answer to this, "High school was a strange time. I have matured a great deal since then, much more comfortable with myself."
Karen then focused on the core challenge of voir dire: "How do you get information out of people in a courtroom on who is going to be biased against your clients?" She used the term "lawbotomy" to describe the biggest issue for lawyers. "We learn to speak in measured sentences full of the jargon we learned in law school. This separates us from real people." Karen laid out the consequence. "It turns voir dire into us versus them. You have to figure out how to be real. You want to be on the side of the jury, not on the other side with the lawyers."
She made some general remarks on how to approach voir dire successfully. "First impressions are formed quickly. The jury weighs everything coming out of your mouth. You want to set a tone that goes beneath the surface and gets things going. It has to be a dialog, not information collecting. Safe, not judgmental.
Your questions should be based on whatever the last answer from a panel member is, trying to keep it going. If you read questions from a script, you will get scripted answers. This needs to be a human interchange. Make your questions to the panel small, short and simple. Dial down, trying to explore an issue. React with real human expression. But never judge people based on their answers, always thanking them for their candor.
You work the panel like a talk show host, getting them aligned. Deal with issues in groups. "How many agree with that?" "Why?" "Who has an opposite view?" You don't want to be seen as just a data collector that is just trying to kick some of them off.
Karen's view is that for many lawyers, voir dire is a time of stalling and giving empty platitudes, thanking the panel for their service, trying to curry favo. "Jurors want you to get into it. Hit the go button."
She exhorted the students to be like the "normal, regular people they were before they went to law school. Act like a real person. Just do it! Get in and be real." She asked them, "How does a real person stand? What kind of acknowledgement or eye contact do they make? How do they hold their hands. How often do they smile?"
We then got into the voir dire process itself, with each student going about 2 minutes and then getting feedback from all of us. The liability areas touched on in the questioning were all very pertinent to the Constantine case, e.g., How do you feel about bicyclists on city streets? How many of you get irritated when you see them darting in and out of traffic? Who rides a bicycle regularly? How comfortable do you feel in traffic with cars? Who uses their cell phone while driving? How safe do you think this is? Who has ever rented a car in an unfamiliar city? Did it take you time to get used to the rental car? How do you navigate in an unfamiliar city? Who has ever used a crosswalk in downtown Seattle? Do you always look both ways? Are you concerned about being hit when you cross? Who ever has had a near miss as a pedestrian, when a car didn't see you?" How careful are drivers in stopping for pedestrians? Who has ever motioned a pedestrian across a street when driving? How many of you consider yourselves safe drivers? How did you learn? Who taught you?"
Then we shifted to damages questions. How many of you have gone to college? How many of you changed your majors? How many times? Did anybody take time off during college or afterward? Has anyone ever lost a family member or close friend to trauma? How did that affect you? Did it change your daily life? How do you feel about awarding 4 for loss of life."
In her feedback, Karen constantly urged the students to be themselves, "Know who you are and what makes you special. That's what you go with in the courtroom. Be authentic."
She also reminded them that "the purpose of voir dire is not just to get people off the jury. You are building trust. The trust relationship is the single biggest thing."
The students were totally engaged in this, It was thrilling to see them put themselves out there for the sake of personal and professional growth. Karen created a climate in the classroom where they felt totally safe to explore the unknown.