Voir Dire


This article focuses on the purpose, practice, and procedure of jury “voir dire.” Voir dire is the process of questioning potential jurors during jury selection. F1a.R.Civ.P. 1.431(b).


The purpose of voir dire is to select an unbiased jury by attempting to eliminate jurors who are prejudiced against your client or your case. Voir dire also serves to educate jurors to the issues in the case and the positive and negative attributes of your client. The jury selection process allows attorneys to challenge prospective jurors for cause once it becomes evident during questioning that the juror has preconceived notions that would affect his or her ability to render a fair and impartial verdict. See Fla.R.Civ.P. 1.431(c). In addition to challenges for cause, attorneys may also exercise a limited number of peremptory challenges against jurors who would not render a fair verdict. See F1a.R.Civ.P. 1.431(d).


Prospective jurors may be asked to fill out the form jury questionnaire approved by the Supreme Court. F1a.R.Civ.P. 1.431(a); Form 1.984. The court may direct the authority charged by law with selection of prospective jurors to furnish each prospective juror with the questionnaire to determine those who are not qualified to serve as jurors under any statutory ground of disqualification. F1a.R.Civ.P.1.431(a)(1); Fla. Stat. § 40.013 (persons disqualified or excused from jury service). The court may direct the clerk to furnish prospective jurors selected for service with the form juror questionnaire to assist in voir dire examination at trial. The clerk must make copies of juror responses available in court during the voir dire examination for use by the parties and the court. F1a.R.Civ.P. 1.431(a)(2). The court cannot swear in a juror until the jury has been accepted by the parties or until all challenges have been exhausted. See F1a.R.Civ.P. 1.341(f). A jury in a civil case must consist of at least six qualified jurors. Fla. Stat. § 69.071. In cases involving eminent domain, the jury must consist of twelve individuals. Fla. Stat. § 73.071(1). The court may direct that one or two jurors be empaneled as alternate jurors in addition to the regular panel. Alternate jurors replace jurors who become unable to perform their duties before the jury retires to consider its verdict. F1a.R.Civ.P. 1.431(g). The jury’s verdict must be unanimous. The parties have the right to conduct a reasonable examination of each juror orally during voir dire. F1a.R.Civ.P. 1.431(b). The court determines the order in which the parties may examine each juror. Id. The court may ask questions of prospective jurors as it deems necessary, but must preserve the right of the parties to conduct voir dire. F1a.R.Civ.P. 1.431(b).


Like many aspects of litigation, forethought and planning are essential. Begin thinking about jury selection at the beginning of the case. Brainstorm questions for jury selection as soon as you meet your client. You should complete preparation of voir dire questions no later than five days before jury selection is scheduled to begin. Before preparing voir dire questions, read Fla. R. Civ. P. 1.431 to understand the parameters of voir dire. Next, review an outline of facts and proof of those facts you should have created at the inception of your case and have updated throughout the pendency of the litigation. Review the discovery in the case and any information you may have collected from mock trials, focus groups, or jury selection consultants. Consider preparing a general outline instead of a narrative outline. This will allow you to talk with rather than read to prospective jurors. Create open‑ended voir dire questions that will allow the potential jurors to speak honestly and truthfully about how they feel about the issues in the case. Leading questions such as “Will you agree to be fair and impartial in this case?” do not assist you in selecting a fair and impartial jury. Instead, ask “How do you feel about personal injury lawsuits?” Make a chart using the last names of all the prospective jurors in a grid fashion so you can remember their names. When you conduct voir dire, make sure you speak loudly and clearly, avoid legalese and complex words and that you introduce the theme of your case and a summary of what you intend to show without being argumentative. Try to establish rapport with prospective jurors. Rapport can be accomplished by being relaxed when speaking with the and making eye contact. You may also want to take the role of a teacher, without becoming preachy, and educate jurors on the judicial system. Refer to jurors by last name only and never interrupt a juror when the juror is speaking. During voir dire, plan to discuss the following with prospective jurors: (1) who your client is; (2) what the case is about; (3) the names of the witnesses who will appear; (4) the issues in the case; and (5) any scientific or medical terms they will hear. Prepare open‑ended questions that are short, educate the jury regarding the basic principles of the case, expose any prejudices or biases a prospective juror may have, and integrate your case theme. For example, if you are building your case around a work or safety theme, explore the concept with the potential jurors. Prepare to ask questions of the panel as a whole and ask individuals answering affirmatively to raise their hand, then prepare follow‑up questions for those who responded. Finalize the written questions and become sufficiently familiar with them so you do not have to read to the jury. Before trial, rehearse with friends and family members and refine your voir dire based on your rehearsal. You should also inquire into a juror’s general background and general attitudes. From a plaintiff’s perspective, some focal points are the belief that there are too many lawsuits and lawyers or that there is an insurance crisis, or that juries return excessive verdicts. Do not forget to ask about juror knowledge of witnesses, parties, or attorneys in the case. Use as much time as you believe necessary to develop proper rapport with the jury during voir dire. Do not attempt to change the beliefs a prospective juror brings to trial. Do not fight with prospective jurors regarding their core beliefs. Simply expose any prejudice and bias and challenge that person for cause. Discuss prospective jurors with your client, but do not make a selection based solely on your client’s input. Be aware juror’s behavior during voir dire. If possible, watch prospective juror’s facial expressions and body language as you conduct voir dire. Make notes regarding your impression of each prospective juror and of his or her responses, including body language, as you ask questions. You may have an associate, paralegal, or assistant watch prospective jurors while you conduct voir dire.


Be prepared to exercise peremptory challenges against individuals who appear hostile toward you. See Fla.R.Civ.P. 1.431(d). “[A] peremptory challenge is, by definition, a challenge that ‘need not be supported by any reason, although a party may not use such a challenge in a way that discriminates against a protected minority.’” Shannon v. State, 770 So. 2d 714, 716 (Fla. 4th DCA 2000). You should also be thoroughly familiar with the caselaw governing peremptory challenges, especially as it relates to race based challenges. See generally Dorsey v. State, 868 So. 2d 1192, 1196 (Fla. 2003). Excuse individuals for cause when in accordance with Fla. R. Civ. P. 1.431(c). Particular reasons to excuse a juror for cause may be that the juror believes: there is a crisis of lawsuits, jury verdicts are excessive, all defendants are liable, there is an insurance crisis, or a juror admits they have a tendency to be unfair. Your credibility with the jury is tantamount. Be honest with the jury regarding weak points in the case, like the lack of documentary evidence. You should also touch on problematic criminal records, prior lawsuits by or against your client, and if your client has a drug or alcohol‑abuse problem that the other side will exploit. By addressing these weaknesses head on you gain credibility with the jury.