The Velvet Hammer™ Podcast

Decoding Voir Dire Part 1 | The Jury Selection Series

• Karen Koehler and Mo Hamoudi • Season 5 • Episode 45

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Episode 45: Decoding Voir Dire Part 1 | The Jury Selection Series

Karen Koehler and Mo Hamoudi kick off a five-part deep dive into voir dire with the question everyone secretly has. What are trial lawyers actually doing when they stand in front of a room full of strangers and start asking personal questions? From calling out bias to reading body language to deciding who stays and who goes, they break down the strategy and the chaos that shape a jury long before opening statements. 

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Hosted by Karen Koehler and Mo Hamoudi, trial lawyers at Stritmatter Law, a nationally recognized plaintiff personal injury and civil rights law firm based in Washington State.

Produced by Mike Todd, Audio & Video Engineer, and Kassie Slugić, Executive Producer.

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Mo Hamoudi :

To speak the truth.

Karen Koehler :

We've had a lot of people ask us to talk about this.

Mo Hamoudi :

Yeah, and we can get in a lot of uh, you know, not even just lawyers, but like lay people.

Karen Koehler :

Yeah.

Mo Hamoudi :

They want to know what the heck is it?

Karen Koehler :

What is Vardiere?

Mike Todd:

Yeah. What is it's I mean, I can tell it from mine because I've I've been on I've been on a jury. And uh from my perspective, Wadir is the attorneys asking questions of the potential jurors and deciding how it will help or hurt their case. And then they get the opportunity to remove some of those people. So it's kind of a little bit of a chess game on figuring out who's going to be on the jury and not.

Mo Hamoudi :

Yeah, the the word actually means to speak the truth. And and it's like a process, it's traditionally meant to be a process of just of identifying fair and impartial jurors that'll decide the case. Um historically it was conducted by the judge, but only in more recent times have lawyers been conducting it. But it's different in many respects, you know, has differences and nuances.

Karen Koehler :

Some people say it's the most important part of a case. And for me, I love I've always loved Var Deer, which is very unusual. Like most attorneys hate it, and we can talk about why. Yeah. Why most attorneys hate it, but for me, it's like the absolute most jousting part of the case, right at the beginning. High, super high stakes, super gamey. Everybody's playing a game in a role. Um, and it is just wild. It's like wild.

Mike Todd:

Well, it is, it's very interesting because you know, there's sometimes a hundred or more people there.

Karen Koehler :

Uh 700 were called for Ride the Dutch.

Mike Todd:

Yeah, so for a big case, there's even more than that. And 400 showed up. And what's crazy is a bunch of those can get cut out almost immediately.

Karen Koehler :

Yes, yeah. So we'll go through that process, but but it is when I say gamey, it is the rules, there are no rules. I mean, there's court rules. You have to follow the court rules, but it's all the subliminal stuff that is going on. And a lot of people that can afford it, i.e. the defendants, will have their jury consultants in there.

Mo Hamoudi :

Yeah, yeah.

Karen Koehler :

Sometimes the plaintiff will have it, but often there will be these jury consultants in the Ride the Ducks case, teams of jury consultants, like there were so many of them. And uh you can hardly walk around the courtroom without stepping on one. But just super interesting. And then now we've gone from in-person voidier, at least in King County, to only Zoom voidier. Smaller jurisdictions around the state still in person, but what's it like to have Zoom voidier? So this is gonna be a multi-part series on Vorder. This will be part number one, and let's just start kind of like with a story, and we're gonna we're gonna really kind of start at the very beginning of the difference between criminal and civil and voardier.

Mo Hamoudi :

The the criminal vaudir, I've been involved in vaudir where we do single juror vaudir.

Karen Koehler :

By the way, is it Vardir or Vardar?

Mo Hamoudi :

Vardar.

Karen Koehler :

I think here.

Mo Hamoudi :

No, it's Latin, right? It's Anglo-French. Anglo-French. Vaudir. But down in the That's what I was gonna say. That's down in the South. That's maybe in Louisiana they vaudar.

Karen Koehler :

You're saying it wrong. It's voidier.

Mo Hamoudi :

Well, you know, in the South they say fire to go fire. They don't say fire to go fire. So it's it's like vodar. Enough of that.

Mike Todd:

Sorry. Get back on track.

Mo Hamoudi :

Okay, okay. Um, so there there have been cases I've been on where we do single juror val d'ar because the case is so sensitive that you spend time with an individual juror. Um and and and in criminal cases, that usually involves cases involving, you know, uh uh sexual assault, and you're gonna ask jurors about their private experiences, so you want to give them a space of privacy.

Karen Koehler :

By the way, even before this, like there are differences, there's there's some states where there is no such thing as civil vardiere. And then we have the difference between federal court vardire and real vardiere and state court. Federal vardiere in a civil case is very constrained and horrible, in my opinion.

Mo Hamoudi :

It is, yeah. And criminal. In criminal, you know, what you're doing is you're trying to see if the jury is gonna apply the burden of proof. They're not gonna think about the Fifth Amendment, you know. If my client doesn't take the stand, you know, what are your thoughts on that? Somewhat straightforward stuff. Um, and and uh and and so the conversations is about their perspectives on safety, on victims, on police, on law enforcement, you know, generally speaking, historically, police reviewed very favorably. So um, you know, some of the question would have to do do you do you think that a police officer should receive some imprimature of uh credibility above an adult another woman? Oh yeah, he's a police officer.

Karen Koehler :

Would you say imprimature to a jury?

Mo Hamoudi :

I didn't say imprimature.

Karen Koehler :

Because why wouldn't you say that word to a jury?

Mo Hamoudi :

Because that's crazy. They would be like, what are you saying?

Karen Koehler :

Like, so how do you speak to a job?

Mo Hamoudi :

I would just be like, do you believe cops more than you believe normal people, like regular people? Yeah, you know, you have to sort of competent.

Karen Koehler :

You use a lot of legal words.

Mo Hamoudi :

No, no, no. They're they're lawyer, you know, the increment for some reason a lot of prosecutors are uh stuck up? I don't know. They're not stuck up. They just they do this style which is which is which is close-ended questioning. They go, Will you will you promise to be fair and impartial?

Karen Koehler :

Leading leading question.

Mo Hamoudi :

Yeah, like basically leading questions. Will you promise to be fair? Like, what is this really doing? Who's gonna say no? I'm not gonna be fair and impartial. I'm gonna be biased. But sometimes you get the people who really want to off the jury.

Karen Koehler :

Because they're the government, and the government is d dictatorial sometimes.

Mo Hamoudi :

Sometimes, you know, you know, but uh also in criminal, it's it's important, I think it's important civil. It's the first opportunity the jury gets a chance to get to know.

Karen Koehler :

Stay off my side of the lane.

Mo Hamoudi :

Um they get to know you, they get to see who you are. Yes. And like, you know, and and and so it's your first date. Yeah, so like, so like uh uh um like the way I kind of break the ice, and I I walk in and I say, I just say, hi, I'm Mo. I'm one of the lawyers, and I represent my client. How many of you, when you walked in here today, just by the sheer fact that my client is sitting over here and is accused of a crime, start to think if he's guilty or not. How many of you did it? Come on, be honest, be honest. And then people would start raising out and be like, well, why'd you do that? You know, and then they would say, Well, you know, I mean, if the person's here were in federal court and this we're in this line, you know, something must have happened. You know, why are we here? And then I go, and then I go, how many of you would say that that is biased?

Mike Todd:

See, I was gonna say you're kind of talking to them. You're leading them into talking about bias.

Mo Hamoudi :

And then I go, how many people agree that that's bias? And then those are once they raise their hands, I go, I have, I have like somebody taking notes, and I think like everybody, okay, they understand that that kind of thinking is bias. So I like those people. I don't go after them, right? And then I go, who thinks that that's not bias? And they're like, that's not bias. It's you know, and then I and then I go backwards, I try to deselect. So I try to find my bad jurors and try to deselect as many as possible. Um, but you know, it's not like closed box questioning, which is like you just get to question the the box. The judge brings the jurors in, puts 12 in the box, and then everybody's sitting in the courtroom. You questioned on the entire courtroom. So you're not just focusing on the box.

Karen Koehler :

Okay, hold on.

Mo Hamoudi :

Yeah.

Karen Koehler :

So we were what was it, what was the assignment of the first question that I asked you?

Mo Hamoudi :

Well, you're asking me about criminal. I'm telling you what a criminal vauder is, I'm telling you what I do.

Karen Koehler :

But just like the differences between criminal and civil.

Mo Hamoudi :

So let's You told me to stay away from the civil.

Karen Koehler :

I know. I'm gonna because I'm gonna do the civil.

Mo Hamoudi :

Okay, I okay, I'm done.

Karen Koehler :

Let's just like keep it shorter because we're gonna break this up. We can't there's so many different pieces to Vardear.

Mike Todd:

It's true. And I've done that. Like that when I was in my last jury, that was what it was like in the box. But they were addressing everyone, and they were and people were getting cut out from the box, but then they would move somebody in. And and so it was constantly the 12 people, but they were still sort of it was like who got moved in first was who they were trying to decide was getting off or not then.

Karen Koehler :

Yeah.

Mo Hamoudi :

Yeah. Okay, so that's that's sort of the beginning of what a vauder.

Karen Koehler :

And then and you and you were doing you were um before you became a uh plaintiff lawyer a couple years ago, you had been federal prosecutor federal public defender. Federal public defender for 14 years or so. Yeah, about 10 years. So what you're talking about primarily is criminal federal court.

Mo Hamoudi :

Yeah, criminal federal court.

Karen Koehler :

Okay. Were there differences when it was in state court?

Mo Hamoudi :

Well, in San Francisco, I I tried a murder case in San Francisco, and no, it wasn't different. It was the same where everybody could have sat and you asked the question and you strike and replace. So yeah. The selection process is a little bit different. Each judge has their own selection process, which is unique. But you know, we'll we'll deal with that later.

Mike Todd:

Do you have questions that you're asking during Wadir? Like you come with a set of questions, but I assume. But my question is then do you branch off depending on what people's reactions are?

Mo Hamoudi :

Oh, absolutely. Okay. Like I don't come in prepared with questions.

Mike Todd:

Oh, you don't at all?

Mo Hamoudi :

I don't. Okay. Because I don't think that the I don't think I am not I'm not the school of thought that thinks like Vodir makes or breaks a case. I just don't think it does.

Mike Todd:

Do some people think that?

Karen Koehler :

I do.

Mike Todd:

Okay. Good does. Good.

Mo Hamoudi :

We have two of them.

Karen Koehler :

I think it I think it impacts the case.

Mo Hamoudi :

Impacts the case, but I don't think it makes it break the case.

Karen Koehler :

Well, that's because criminal is different than civil.

Mo Hamoudi :

Oh. Well, then why don't you tell me why you think that it impacts the case?

Karen Koehler :

Well, the bias that you have in criminal, you you have to deal with bias as a as a public defender.

Mo Hamoudi :

Yeah. Yeah.

Karen Koehler :

Huge amount of bias. And in the civil case, you do too. But it's I feel like it's deeper seated.

Mo Hamoudi :

Yeah, tell me about that.

Karen Koehler :

It's more deeper seated. So the I don't think it started off this way, but there's been a lot of propaganda over the decades of, you know, the greedy plaintiff, the ambulance chaser, runaway verdicts, and this kind of dog dogmatic kind of um advertisements in books, in movies, in public thought, which I believe is a campaign by the indust you know, insurance insurance industry and other big corporate structures. But whatever the reason for that, that's what people come in with. And it's pretty deep-seated, and no one really wants to talk about it when you're called into a civil jury, and that's the thirsting. So for for you, it's like, oh, there's police, there's jail, this person must be guilty.

Mo Hamoudi :

Yeah.

Karen Koehler :

For us, it's oh, it's someone who got hurt, it wasn't intentional, it's someone else's fault, ambulance chaser, lawyer, greedy plaintiff, they want a lot of money, and I'm not gonna do what they did in the McDonald's case and have my community think that I'm uh one of those kind of people that would just give that much money for nothing. And it's it's a very deep-seated set of core beliefs.

Mo Hamoudi :

And you talk about McDonald's case, you're talking about the coffee that's the first one.

Karen Koehler :

Yeah, the first one. Now there's been several others. But so but there's a also a lot of similarities. So but you and I come in. This is why I think that there's a symbiotic relationship with public defenders and plaintiff lawyers, because we are we have to deal with this bias brought by the big, bad, you know, maybe maybe good government, but you know, still big. Um and then we have to explore that. So my questioning is different than his. Uh, and but yet he and I are very similar because so my best friend Shelly, the way that we describe doing four dear is you're at a cocktail party and you're just meeting people, people, some people you know, most people you don't know, and you're just going from person to person or group to group and talking to them. And that works better with a certain type of personality than another.

Mo Hamoudi :

Yeah. Yeah.

Karen Koehler :

So for that's why for me, and Mo, it is, I don't want to say it's easy because that's that's disrespectful to how difficult it is, but it comes more naturally. We don't have to like gear up for it. We don't have to have like if you go to a cocktail party, do you come in with a script?

Mike Todd:

No.

Karen Koehler :

But you yet yet we have our points, right? We know that for me as a plaintiff lawyer, I want to know like what's the single worst thing about my case? Better talk about that. I talked about the elephant in the room.

Mo Hamoudi :

Yeah.

Karen Koehler :

You don't want to talk about that. Your client has alcoholism issues, you're gonna talk about that. Like number one.

Mike Todd:

So you so it's not hidden and it can't look like you were trying to hide.

Karen Koehler :

Yes. Number two, credibility. We have to be that's like the number one thing. Am I a credible person? Are you gonna trust me? If you think I'm trying to manipulate you, which they all will, they'll think like you're trying to manipulate uh somehow, because that's what this is all about. The more they think that you're manipulating them, or you're being false, or you're being scripted, or you're not being natural, and you're not engaging, that carries on through and it will carry on throughout the trial. You want to speak the truth. So it's not just them that's gotta speak the truth. Yeah, it's you, the lawyer. So if you say um something like really, really manipulative, you know, uh uh let me think. Uh uh and I don't want to even I don't I can't even think of him. The defense lawyers do this all the time, but I've seen plaintiff lawyers do this, which is they want to try to try their case. And so they're trying, but you can't really, you're not supposed to invariable, talk about your actual case. Yeah. Because you have no right to find out how a jury will rule.

Mike Todd:

React, yeah.

Karen Koehler :

It's just like when they, you know, when they talk to the Supreme Court justices to see if they'll be fair, they're not supposed to ask them, like, how are you gonna rule on this issue?

Mo Hamoudi :

Yeah, you can't.

Karen Koehler :

You can't do that. Yeah, um, so but but but people will go as close as they can, you know, change the and when jurors think that you're they're trying to manipulate you, then they start withdrawing. So it's really good, no, my turn. So it's really good to to you can go.

Mo Hamoudi :

I've had jurors blow up on me.

Karen Koehler :

Because they thought you were manipulating them?

Mo Hamoudi :

Because they thought I was manipulating them. Turned on me.

Karen Koehler :

There you go.

Mo Hamoudi :

Like like During criminal cases? Yeah, during a criminal case in a vadir that had eight jurors turn on me. It got uh that the judge had to excuse them for cause. And what's cause?

Karen Koehler :

Well, c well, we'll get to that in more detail, is but like they cannot be fair.

Mo Hamoudi :

They cannot be fair. And it's a hard standard to meet. Because the judge tries to ask them, now if I give you some rules, are we willing to Are you gonna be able to stay within? Yeah, they were like, no. Yeah. And and the mistake I made was that it was a very contentious case. It was a case involving immigration fraud. It was right after 2016, after Trump had been elected. And so there was, you know, I always say, like, I always say, Oh, I got a hot jury. What do I mean by that? The temperature is running hot. They were just an active Von Deer panel, and they were like, you could tell they're fired up. And so they came in and I started to ask them some questions about the facts of my case, and they knew because they're told this case involves immigration for, and they flipped out. It depends on the rest. I feel like you're manipulating me. I feel like you're trying to divide us politically. I was like, I'm not even doing that. I'm just asking these very simple direct questions. And then suddenly they were the, you know, I asked, does anybody else feel like I'm doing this? And eight hands went up. And you you so you don't even realize, but like they are watching your every move.

Mike Todd:

When that happened, did the judge immediately then start questioning them? Or no, it went on for a while before that happened?

Mo Hamoudi :

Let me drown.

Mike Todd:

Yeah, okay.

Mo Hamoudi :

He was like, Hamoody.

Mike Todd:

Let me throw you into the pool.

Mo Hamoudi :

He was like, go, go, I'm digging you out. He's like, go, you did it, you did it yourself, Hamoody. You walked through that door. And then I walked through that door and I was just like, I I I couldn't, I was like, I started my stomach started to turn. I was like, Yeah. I've had him blow it on me.

Karen Koehler :

Yeah, you you so you go in there and you have to, you know, it's not just likability, but being like a likable and liked is a is a very good skill set to have in War deer.

Mike Todd:

Would you guys think that uh like the differences between criminal and civil is that you're more trying to see how they feel about your client in criminal, and you're more trying to get them to like you in civil?

Karen Koehler :

No, I'm not trying to get them to like me. Um it's just something that you need to be aware of. Okay. Uh and one thing that you can see that Mo and I do when we you can just see by how when when he was talking, but I do exactly the same thing, and I know it because I remember because people have come, they'll watch me during Vardear, and they'll make comments about it, law other lawyers. And early on, the comment was, you're smiling almost the entire time. And I am, and I'm not even really aware of it. But again, what did I say that we're at? We're at a cocktail party. Yeah. So the energy that we bring, yeah, we're very conscious of the energy that you're bringing. You can't just go in there and just be yourself. I mean, you could, but when you're in court, you have to bring extra.

Mo Hamoudi :

Yeah.

Karen Koehler :

You have to, I've talked about this before. It's not that you're acting and you're somebody else. You have to bring your full self in. So, like when you're going to a cocktail party, you don't just go there and just like, you know, sit there and just look at your phone or something. You're going in there knowing that you're gonna go and interact and exchange energy with other people. And it's this concept of exchanging energy. Like if you go in low energy, you're gonna get low energy back. So I go in high energy. I am smiling, my eyes are big, I am just it's completely me, but it's a high energy version of me. And I'm going to get high energy back. So you might not have noticed the kind of energy that you brought there, but I guarantee you it wasn't just the words you said. It was also that you said them with high energy.

Mo Hamoudi :

Yeah. I did say that. Yeah, yeah. You know, that's harder, Karen. We, you know, with with with Zoom. What you're talking about, like, I feel like I don't like Zoom Var deer.

Karen Koehler :

I have, I have, I, when I first started doing, and we can go into this later. When I first started doing Zoom Var deer, I did not like it either. And now I'm fine with it. I've come to peace with it, and I I do, because we can't change the mind.

Mike Todd:

Okay, well, let's wrap this one up and we'll we'll start on uh on the Was that 20 minutes already?

Karen Koehler :

Well, let me give let me let me stop it up by having a you know, I basically got to the introduction part of it. Yeah. We're just at the introduction part, you come in, and there's anywhere in our cases typically between 50 and 100 jurors at one sitting. In the big cases, it's very different. You have to do it in groups and panels. But the very first thing that happens, um, even before you do that, even before you meet the jury now, is that uh if if it's a Zoom jury panel, they'll get a special questionnaire. And if it's a live panel, sometimes they'll get a special questionnaire if the case is big enough, and sometimes they won't. But the judge number one is gonna find out if there's a hardship, and that will normally get a rid of a third of the people there. And what is a hardship? Let's just finish with the hardship.

Mike Todd:

A hardship is when you have something, it can be anything from a work responsibility to a vacation to a medical emergency or a pre-planned surgery of some sort, stuff like that.

Karen Koehler :

So if you have your tickets for a trip, if you have a scheduled appointment that's you know very important, if you're the if it will cause a financial hardship, because here a lot of the employers pay for your jury duty at least a week or two of it, not normally months, and then um many people that live from paycheck to paycheck, if it's gonna go longer than a week or two weeks, that's a problem. In addition, a lot of employers do not pay for jury service, and the person is maybe the sole support, or they really just can't do it. Judges are gonna be looking at that one really, really closely to they're not gonna let off certain people, like a lot of school teachers. Yeah, they will not let off the school teachers who come in and say, Well, you know, I'm starting a class and I really shouldn't be away from them, which is true, but that's why school districts have backup teachers and and teachers or or someone that comes in and says, Well, it's not a financial hardship, but I'm the leader of my team at work and my employer really needs me, and they work for Microsoft or Amazon, or and the judges are gonna be like, they can go find someone else. Yeah, most of the time they're yeah, they're they're they're very compassionate towards people who will really be hurt and affected, and they're not at all compassionate about people who are self-important or believe that their job is so is more important than the principles of serving uh as a juror under a constitution. So that is pretty much what what uh the judge does at the beginning for hardship. And it tak normally takes away a third, sometimes a half of the jurors. Yeah.

Mike Todd:

Yeah. Okay. Um let's uh start for the next one.

Karen Koehler :

Okay.

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Karen Koehler

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Mo Hamoudi

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