OTLA Trial Lawyer Fall 2020

38 Trial Lawyer • Fall 2020 By Damian Idiart OTLA Guardian T en years ago, an opposing counsel told me he had checked up on me with other lawyers around the state and the consensus was I was “someone easy to work with,” “competent,” and, sur- prising to me, “good at . ” The last statement really caught me off guard. Damian Idiart By this time in my career, I had about 30 trials under my belt and I never consid- ered my approach to voir dire anything but average. But this revelation seemed to spark something within me. As I remember it, I approached the next several trials with renewed vigor and confidence, especially while I spoke to jurors. I seemed to take to heart the quote by Napoleon Hill, “Whatever the mind of man can conceive and believe, it can achieve.” My list of voir dire tips for this article could include more than 100 items, but I will spare you…and just focus on my top ten. Here we go! 1. Don’t use the phrase “ voir dire ” Let the judge use it. In fact, don’t use any legal jargon at all. Stay real with the jurors. Don’t speak above them. I am not saying you should be a simpleton, but if you set a pattern of using common ver- nacular, rather than legal terms, then you become someone the jury members ap- preciate for not talking over their heads or assuming everyone knows and uses legal terms like “ voir dire ,” “preponder- ance of the evidence” or “cause of action.” 2. Smile a lot Connect with the jurors. Look them in the eye. The better the connection you get with jurors, the quicker your nerves will settle. And for me, when my nerves settle down, I get into my groove, I think better, and I believe I represent my clients better. 3. Don’t forget the replacement jurors In fact, focus on them. They are your substitutes. I tend to spend so much time on the jurors sitting in the box, I don’t pay enough attention to the answers from the jurors who will likely be picked. After a particularly brutal defense verdict on an admitted liability case, I remember going over my notes from voir dire and seeing two completely empty spots for jurors that eventually made it onto the panel, one of whom ended up our foreperson and the other a person who seemed to have endless written questions for the judge during trial. I knew nothing about these two because they never spoke up during voir dire . I was so focused on challenging some of the more vocal jurors in the box, I missed out on removing two very poisonous apples. Costly!! 4. Don’t be afraid to push for cause Everyone is very biased if you can get them talking. If you have a bad feeling about a person, push for cause. It has taken me years to really feel comfortable to do this. You can’t rely on the judge to ask the kinds of pointed questions you need to challenge for cause. Don’t be afraid to really nail bad jurors into a box that leaves the judge no wiggle room but to excuse him or her. “Sir, you haven’t committed to following the law, how can I trust that you will?” Or “Ms. Jones, you said you think there are too many The News They Watch ten tips for voir dire