After 46 years of trying cases and almost 200 civil trials in California state and federal courts, I’ve learned that the most dangerous juror in any courtroom is rarely the one who tells you how they feel. It’s the one who smiles, nods, and says all the right things, then carries an undisclosed bias into deliberations.
Voir dire is the most underestimated phase of trial. Many attorneys treat it as a formality, a bureaucratic hurdle between opening statements and the real work of trial. That is a costly mistake. In my experience, cases are won and lost in jury selection. By the time the first witness takes the stand, the verdict is often already leaning in one direction, shaped entirely by who is sitting in that box.
The Problem With “I Can Be Fair”
Almost every prospective juror, when asked directly whether they can be impartial, will say “yes.” That answer is meaningless. Most people don’t lie, but they are often genuinely unaware of the filters through which they process information. A juror who had a bad experience with an employer fifteen years ago may believe completely that it won’t affect their judgment in your wrongful termination case. And they may be wrong.
My approach to voir dire is built on the premise that behavior and experience are more reliable indicators of bias than self-assessment. Instead of asking jurors whether they can be fair, I ask them about their lives. I ask about their jobs, their families, their brushes with the legal system, their opinions about lawsuits in general. The goal is not to catch them in a lie, it’s to give them permission to tell the truth.
The Power of the Open-Ended Question
The most effective tool in voir dire is deceptively simple: ask open-ended questions and then stop talking. Most attorneys fill silence. Skilled trial lawyers let it breathe. When you give a juror space, they will tell you far more than they intended to. “Can you tell me about a time you felt an employer treated you unfairly?” will reveal in 90 seconds what a checklist of yes/no questions never could.
I also pay close attention to body language and group dynamics. Who defers to whom? Who laughs when another juror speaks? Social hierarchies form quickly in a jury pool, and the person who emerges as an informal leader in voir dire will often drive deliberations.
Cause vs. Peremptory: Knowing When to Fight
You have a limited number of peremptory challenges. Use them strategically. Not every problematic juror warrants burning a peremptory. If you discern a juror’s bias and document it on the record, push for cause. Judges are more receptive than many attorneys assume, particularly if you’ve asked precise, deliberate follow-up questions that establish an inability to set aside a prior opinion or experience.
The discipline here is knowing which jurors you must remove versus which you simply prefer not to have. Conflating the two is how skilled opposing counsel forces you to exhaust your strikes on the wrong targets.
The Jury Is Your First Audience
Everything that happens at trial — your opening, your witnesses, your closing — will be filtered through the experiences and assumptions of the twelve people you selected. Invest the time in voir dire. Ask the uncomfortable questions. Trust what you observe, not just what you hear. And remember: the goal is not to find jurors who agree with you. It’s to find jurors who are genuinely capable of evaluating your client’s case on the evidence.
If you have a case going to trial in California or federal court and want to talk strategy — including jury selection — call my office at (714) 673-6500 or reach out at juryattorney.com/contact-us/. With 46 years of trial experience, I know what it takes to put the right panel in the box.
