A powerful trial strategy starts with voir dire. Jury selection is not merely a procedural formality; it is a rare and critical opportunity to educate jurors about who you are, what your case is about, and why their role matters. It sets the emotional and intellectual tone for everything that follows. While every jurisdiction grants different latitude in this process, the skilled trial lawyer makes the most of whatever time is available.
Setting the Stage for Trial
First and foremost, convey the gravity of the situation, the importance of the jurors’ duties, and express gratitude for their service. Within the first ten minutes of the process, the jury should feel the weight of their responsibility — not with fear, but with purpose.
Everyone wants to be important or empowered, whether they admit it or not. When a juror is sworn in, they become a judge in every sense that matters. The judge on the bench decides questions of law; the jurors decide questions of fact. They may not wear black robes, but they should understand their role in the pursuit of justice is equal in importance.
Confronting Preconceptions
As plaintiff’s attorneys, we are frequently starting on the back foot. Many jurors enter the courtroom carrying opinions — sometimes subtle, sometimes strong — about personal injury law, lawyers, or lawsuits. Voir dire offers the chance to confront these perceptions head-on and “flip the script.”
This is not about finding the “perfect” jury for you or trying to rehabilitate those inclined toward the defense. Rather, voir dire is a shared process — one in which both sides seek individuals who can be genuinely fair and impartial. The most effective approach is to be the voice of reason in the room. Show respect for the process, for opposing counsel, and most importantly, for the truth.
Ensuring Fairness and Impartiality
Start with the easiest instruction: Raise your hand if you can’t be fair. Most of the time, no one raises their hand.
From there, follow with: Raise your hand if you don’t think you can be impartial. This is your opening to explore what impartiality truly means — an opportunity to introduce Keith Mitnik’s memorable “pie analogy.”
The Pie Analogy: Imagine there was a pie-baking competition, and it came down to two pies, a cherry and an apple pie. If it turns out that the judge hates cherry pie, shouldn’t the judge be honest with themselves, the contestants, and the audience about their bias against cherry pie and how that might impact their ability to judge the competition fairly?
Trials are obviously more consequential than pie contests, but the principle is the same: honesty about bias is essential to fairness. Jurors must recognize that it’s not only acceptable but necessary to disclose their personal feelings, experiences, and beliefs so potential points of bias can be revealed and addressed.
The Line of Questioning
Once fairness and impartiality are defined, engage jurors in self-assessment. Ask each juror, on a scale from 1 to 10, to rate their opinions or experiences with car crash cases — specifically those involving injury and financial compensation.
Those who rate themselves at the low end may have no meaningful preconceptions. Those who score higher might hold strong beliefs rooted in personal experience or media influence. Your goal is not to challenge them, but to uncover these biases openly.
For instance, a juror who gives a “10” might have been injured in a crash or may harbor resentment toward injury lawyers or insurance companies. Those in the middle — the “fours” and “fives” — are often the most revealing. Their ambivalence provides an opening to explore latent biases.
A productive sequence might include:
“Based on the fact that your friend was in a crash, you think they exaggerated their injuries? Do you think there is too much litigation? You don’t like the commercials?”
“Given all that, is there any amount of doubt in your mind about your ability to be fair, because I know you're a fair person. But what about your ability to be impartial in this case, to walk into the courtroom with impartiality?”
“Based on the fact that you doubt your ability to be impartial in this case, should my client and I share that doubt with you?
If the answer is yes, then you ask: If you, my client, and I all have doubts about your ability to be impartial in this case, should the court also have doubts?
If the juror agrees, the cause for dismissal becomes clear. After a few such exchanges, other jurors understand that candor leads to dismissal — and that those who truly do not wish to serve will remove themselves through honest self-reflection. You don’t want people on your jury who don’t want to be there, just as you don’t want jurors who really want to be there.
Countering a Common Defense Tactic
If the defense tries the tactic of memorizing all of the jurors’ names, you can combat this by using numbers.
Say to the jury: “This transcript may one day become public record. I want you to feel comfortable being fully honest. To protect your privacy, I’ll refer to you by number rather than by name.”
This approach fosters transparency and safety — reinforcing your commitment to truth over tactics.
Be Upfront About Money
Address the subject of money early and directly. If you expect jurors to be candid, you must extend the same courtesy. Explain that money is not about greed or gain; it is the only legal mechanism our system allows to compensate someone who is injured due to the negligence of another. There is no injunction for pain, no restraining order for loss.
Some jurors may question whether money can truly address suffering. Remind them: in these cases, money is justice — not because we say so, but because the law provides no other means of righting a wrong.
Addressing Pain
There are two kinds of pain: cane and hidden pain.
Cane pain is the kind of pain that we can see because people are using a cane, they have a limp, or have a cast on, or are in a wheelchair. Hidden pain can’t be seen, but it is just as real as cane pain, even if you can’t tell someone is in pain when you look at them.
To unpack this issue with a jury, you can ask: “Does anyone think that one kind of pain has more value than the other? Do you think that just because you can see the pain, it’s more valuable to someone than if you can't see the pain?
The Voice That Wins
Ultimately, every successful trial lawyer develops their own rhythm and voice. You can study others, borrow their lessons, and adapt their strategies — but authenticity is nonnegotiable. What makes a case resonate is not mimicry, but the truth told in your voice, your way.
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