Mitigating Risk Through Attorney-Directed Voir Dire

On Monday I was fortunate to attend an excellent Maine State Bar Association workshop on attorney-directed voir dire.  Kudos to all those who served on the panel for this.  I hope other attorneys have the opportunity to attend and participate in similar sessions in the future.  

My primary interest was in seeing how lawyers can mitigate what I call Systemic Risk.  That is the particular category of risk that is inherent in that very human, and therefore potentially fallible, process of resolving disputes that we call “trials”.  

The focus yesterday was more on civil cases than criminal cases. The purpose of Rule 47 of the Maine Rules of Civil Procedure (“Selecting Jurors”) is to seat jurors who are qualified, willing, fair, impartial, and free from bias, prejudice or interest. There is clearly an increasing interest from all corners, including the bench, in allowing lawyers to be directly involved in voir dire during the jury selection process.  This suggests there is some broad-based concern the historical process for selecting jurors has not always met the Rule 47 objectives.  

No doubt, attorney-directed voir dire will become an essential skill for all trial lawyers in the years ahead - whether they represent plaintiffs or defendants.  I know I have always been concerned during jury selection, whether I was representing a plaintiff or a defendant, that there would be jurors who would have personal experiences or perspectives that might impact their ability to be truly impartial.  Lawyers will appreciate the opportunity to be more involved in this process, and it is a good thing for their clients - regardless of which side of the “v.” they may find themselves.  

Yesterday, everyone attending gained insight into the mechanics and skills that are unique to the attorney-directed voir dire process.  One always feels a little self-conscious standing up in front of others and trying something new, but it is good to set those feelings aside and to just go for it.  It is the only viable way to build critical skills - and I can report those on the panel all treated us kindly.  

If you get the chance to attend one of these workshops, I highly recommend it!