Seek First To Understand, Then To Be Understood

There are many schools of thought on how best to conduct voir dire.  We obviously want to get those heartburn-inducing jurors off the panel, but the importance of getting to know jurors’ personal experiences is crucial.  Sometimes, the “yes/no” questions just don’t cut the mustard.

I came across a short video today on Law.com / Texas Lawyer that reminded me how valuable having a real conversation with the panel can be.  In the video interview, employment attorney Celeste Yeager (Gardere Wynne Sewell) shares her story of selecting a jury in a recent breach of contract case.

Disclaimer:  I did not work with Ms. Yeager on this case, nor do I have any information about the case that was not discussed in the video.  The comments below are a function of my 15+ years in the business of knowing juries!

In the words of Stephen R. Covey:  Seek first to understand, then to be understood.

In the world of litigation, we spend an awful lot of time and energy trying to convince others that our trial story is the correct story.  But what if the people we’re trying so hard to convince show resistance to our story?  This resistance can be a function of the listener’s life experiences, values, or even his ability to understand the context.

The challenge for any litigator is to communicate effectively.  The first– and some may argue the most important– opportunity to communicate is during voir dire.  If you understand where jurors are coming from and what makes them tick, you will be in a much better position to evaluate the panel, assess strategy and determine strikes.

After watching the video interview, it seemed that Ms. Yeager’s main objective during jury selection was to identify jurors who were similar in some way to her client, and to identify jurors would likely be receptive to her client’s story.  In her attempt to identify these jurors, I have no doubt that Ms. Yeager identified dangerous jurors, but because she focused on truly understanding the life experiences of the panel members, she gained two key advantages from the get-go.

1. She likely forged an emotional connection with jurors.  She was no doubt listening very carefully as she engaged in personal discussions with the panel.  While evaluating whether a juror’s experiences would enable him to receive her trial story, she was likely perceived as someone who seemed interested and engaged in his story.  And an interested attorney is a likeable attorney.  That’s never a bad thing.
2. Intentionally or not, Ms. Yeager began to convey the key messages in her case during jury selection.  Every contract is different.  A corporate business conducts its day-to-day activities differently than a small business.  A family business is a different animal.  She not only began to contextualize the contract, but she was also able to encourage jurors to apply their personal experiences when evaluating the facts.  And this has the added effect of creating an emotional connection with the trial story.

The better you understand the jury’s story, the more effectively you can communicate yours.