A ‘Brutally Honest’ Approach to Voir Dire and Opening Statements

Reviewed by J. Nate Bingham

Originally published in the June 2020 issue of Trial Newsthe monthly publication from the Washington State Association for Justice

I will never forget my first time conducting voir dire as a Rule 9 intern. Although I Googled "voir dire" the night before, I had never seen it happen until I had to get up and do it. It went just as poorly as you would expect—I awkwardly asked a bunch of questions while the jurors avoided making eye contact and did their best not to get called on. When it was finally time to exercise peremptory challenges, I had lost track of which jurors I liked, so I frantically flipped through pages of notes while the judge politely reminded me we had some other things we needed to do that day. The trial itself unceremoniously ended with a mistrial a day later because opposing counsel suffered an injury when she tripped and fell while walking into her office. I guess you could say things went poorly for both sides.

Voir Dire and Opening Statement will save others from this sort of experience. Although the book addresses both voir dire and opening statement, its primary focus is on voir dire—an understudied, yet vitally important, phase of trial. The section on opening statements is primarily a demonstration of how to continue applying the principles that the authors establish in voir dire to the rest of the case.

The book intertwines transcripts from voir dire and then opening statements in three different wrongful death cases (two medical malpractice cases and a commercial trucking collision), which authors Nick and Courtney Rowley successfully tried recently. The Rowleys also include practical explanations and theories on why they conduct voir dire in the way that they do. Seeing the transcripts from the three cases side by side allows readers to see the principles in practice and understand how the techniques can be applied in various situations.

Jury consultant Wendy Saxon also contributes a number of chapters from her perspective as a clinical psychologist. Ms. Saxon’s contributions include tips on understanding the small group dynamics of the voir dire, reading juror body language, using juror questionnaires, and some basic principles of determining which jurors are most likely to be fair and open-minded. 

The book does not teach dirty tricks or devious tactical maneuvers. Rather, it embraces the concept of "brutal honesty" - both modeling it as an attorney and inviting it from potential jurors. As plaintiffs’ attorneys, we have the luxury of being on the just side of our cases. Therefore, our clients’ stories are best told with frankness and by embracing the honest truths of our cases. The authors advocate for conducting voir dire with the same principles in mind. Instead of boxing the jurors in and questioning them like hostile witnesses, the authors advocate for listening to jurors and appreciating whatever they share with you.

The most valuable part of this book is its generous inclusion of examples. For newer attorneys, the book will not only explain how to conduct an effective method of voir dire, but the examples will take you to the courtroom and show you how it looks. For more experienced attorneys, the book provides a valuable reference for when you are looking for inspiration the night before trial or thinking about taking a different approach to voir dire. And for all, the stories in the book serve as a good reminder for why we represent plaintiffs—to help real people share the truth and obtain justice.

Voir Dire and Opening Statement by Nicholas Rowley, Courtney Rowley, and Wendy Saxon

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