I love the fact that plaintiffs’ attorneys get to go first in Voir Dire. Going first means that we have the opportunity to direct and control the voir dire’s initial focus. If we start talking about the defendant’s bad behavior, the jury will analyze that side of the story. Because jurors’ natural instincts are to figure out as quickly as possible how they would have avoided injury, they might find fault with the premises itself if they are nudged in that direction (again, we call this “defensive attribution bias“). If jurors can conclude early on that the premises were not safe, it will be harder for them to later switch blame to the plaintiff. Instead, they will more readily accept the facts that support the initial position presented to them, that of the plaintiff, and reject those that undermine it.
After focusing on what the defendant could have done to prevent the accident, you should focus on getting the jury to feel similarly situated with your client – without, of course, violating the “golden rule” and prejudicing the jury. Ways of building plaintiff sympathy with jurors include asking about similar incidents that the jurors have experienced. Ask jurors if they were to blame for thosee incidents – the answer will likely be a resounding ‘no’. If jurors believe that they weren’t to blame then how can they believe the same about your client under similar circumstances? Another technique to help build juror empathy in these cases is to present them with hypothetical situations concerning family members. While the proverbial jury golden rule prohibits you from asking the jurors to place themselves in your clients’ position, it says nothing about placing their loved ones in that position to build empathy. Jurors’ instincts will be to hold their family members blameless. If a potential juror does assign blame to a relative in this situation, find out why – and eliminate that person from the jury.
Bear in mind that the instinct to hold the victim blameless is strongest when jurors consider themselves the victims, less so with family members, even less so with friends, and it is virtually nonexistant with strangers. The more you help jurors identify themselves with your plaintiff client, the better off you will be.