Decoding Voir Dire Part 2 | The Jury Selection Series

Episode 46: Decoding Voir Dire Part 2 | The Jury Selection Series

In Part 2 of our five-part jury selection series, Karen Koehler and Mo Hamoudi break down what really happens when you get 20 minutes to talk to 50 to 60 jurors (and somehow remember who said what). Karen walks through the struck method, why “deselection” used to be the whole game, and how she color-codes jurors fast without a consultant. Mo shares why he learned about voir dire through bartending and why vulnerability is the fastest way to elicit honesty from a room full of strangers. They also get into the quiet power move most lawyers miss: actually responding like a human when a juror shares something devastating. 

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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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Chapters

• 0:00 How Jury Selection Time Works
• 2:35 From Box Method To Struck Method
• 5:25 Goals: Find Bad, Protect Good, Empower
• 8:45 Fast Tactics And No Scripts
• 12:05 Reading Energy And Micro Cues
• 15:35 Vulnerability As A Tool
• 18:25 Handling Painful Disclosures With Care
• 21:35 Building Jury Camaraderie And Stewardship
• 23:55 Thinking Styles: Head And Heart

Transcript

Karen Koehler : 0:12

All right, so the panel has been selected and it's random how they do that and they give you and so now w we realize that we have very little time. Um there's some states like in New York where they can go weeks picking a jury. They just do it until they're done. They have special judges that do that. That just do the wad year. But in in Seattle and Washington, uh the typical case, including like for a two-month trial or long trial, is the judge will say, Okay, I'll give each side two rounds of twenty. Twenty minutes apiece. So that's 40 minutes total. Uh and then we'll say, Well, Your Honor, um, will you stop the clock for challenges for cause? And sometimes they'll say yes and sometimes they'll say no. And I'll talk we'll talk more about challenges for cause probably on episode number three. Um, so you have 20 minutes to talk to 50, 60 people at the same time, or if we're doing it by Zoom, then it's normally around 20 people, and then you have to do it multiple times. You have to start Yeah, I was gonna say they cut it down into one. It's like groundhogs Groundhog's Day, like you do the first panel in the morning, then you do the same thing the six, and then you have to do the next day and the next day, and then maybe that's done, or maybe you have to go into what you know the third day of our deer, because you have to do we do it. But let's just say that we're just doing it to the whole whole group. You have 20 minutes. So again, this is where it changes from not really make a cocktail party and where your ability as a person who is comfortable in their own skin and knows how to talk to groups of people is very important. This is why uh it helps a trial lawyer to teach either or and give public speaks. Public speaks is a way to do it.

Mo Hamoudi : 2:07

Yeah, public speaking. Because public speaking.

Karen Koehler : 2:10

How on earth are you gonna communicate with that many people? Yeah, you do not what do you in the old days, and I was an old, I'm an old one, we did regular var deer, and that was you had a box, there were 12 people in the box, and you went person number one, person number two, person number three, and then if you didn't like someone or try to get them off and they did get off, then that seat would be filled, and then you just and it was one by one. And then that changed in I think the 90s when we entered the struck method, which became Phil Donahue, who was a talk show host before Oprah, it was kind of his method of getting the whole audience involved. He'd run around, you know, with a microphone having people talk. So that was called the Streck method, and that's still here, except for it's modified now because of Zoom. But with Strck, what that meant was, and and Mo had given an example, he had made a statement, the juror said, I hate you, and then he said, How many other people here hate me? And eight people raised their hand. So you can do you can get this group kind of going, which is what you do want to do. You want to want to get the group going. Yeah. And why is that? Well, so there's two main kind of things that you're trying to do. One is you don't really want to talk to the jurors that you know are beneficial, that you can tell. Because all you're gonna do is have them give up more information that'll help the other side knock them out. You don't want the other side to be able to knock out the good witnesses, so you just or or or jurors, so you leave them alone. And they're so the question is the bad ones, and Mo had talked about deselection. Well, there was a time in the 90s and early 2000s and actually through the mid-2000s, where that was your whole purpose was to deselect the jurors because they were so biased because of tort reform. Um uh No, I remember. Everybody hated lawyers. Yeah, everybody hated lawyers. So your whole job was to just do this deselection process, and I was very good at it. I actually had a case with Shelley where in front of Jim, oh no, in front of uh Mary Roberts, where the uh entire panel was disqualified. We got it, we got a uh mistrial.

Mo Hamoudi : 4:31

Wow.

Karen Koehler : 4:32

And the judge tried to rehabilitate them and she said, Well, I'm gonna tell you if I give you these instructions, you're gonna follow them, aren't you? And they kept one by one, they said no to her face, to the point, and she was a relatively new judge, where she pretty much had a little mini breakdown. And when we had to retry the case, she did not. We had to get Jim Rogers to retry the case and did a good job. Yeah. But it w the whole panel came off. Now stopped doing that because what happens is how are you arming the good ones that stay? Everybody is so focused on getting off the bad ones. Yeah, you need to also empower the good ones that are gonna good meaning the ones that are gonna stay on, whether they're good for you or not, the ones that are gonna survive. You just don't want to, it's just too negative. You still have to power them. So what I'm doing in Voirdier is both. I am three things. I'm looking for the good ones and making notes of leave them alone. So, you know, the defense is probably gonna get rid of them or try to, but let's not help them. Number two is to figure figure out who those bad ones are, and number three is to empower the jury that's gonna survive to do the right thing. This is why I say it's so gamey. You're doing that all at the same time. Well, and and just sitting here listening to that, I'm I'm thinking of devious ways to be even more trickery, which is like, do you take those jurors that you weren't talking to and maybe throw one of them out? Not throw them out, but like say talk to them so that the defense may be like, oh, we're not gonna talk to that one. Well, even more so, let's say I have a I have a plaintiff, she I mean a a a juror, she knows somebody. I did this in the our uncle murder case, she knows someone, or they they did something, you know, they they watched the TV show about the case beforehand or whatever. And or they're a member of you know their family, a small town, everybody knows everyone. You can't find anybody that doesn't, and so it's completely different from Forder in a small town. But just let's say you find that good juror, you don't you're like they're gonna be kicked out. There's no way the judge the the defense isn't gonna use them. So yes, you yes, you're gonna talk to them and you're gonna say, Well, what do you know about such and such? Or what are your feelings? You're gonna, and then that person is gonna say something wonderful and beautiful, and then you're gonna then you're gonna have that'll help you, right? You what you don't wanna say is who agrees with that person because that is you now have identified for the defendant all those people that are aligned with the person that you know is gonna come out. Yeah. So that's how tactical it is, and you have to do it really, really fast. So, and I'm gonna get off here in just a second. So, one of the things that you don't want to do is have a script and take notes during four year. And this is the next challenge.

Mo Hamoudi : 7:43

Yeah.

Karen Koehler : 7:44

The challenge is if you're not taking notes and you're not reading from a script, how are you keeping track of all these people? So here's what I do: I have a grid, I have their names, I have their ages, I have about five columns, which normally I'm looking at two columns. One is are they tort reformer? And remember, the other column is something about the case, right? The the the worst thing about the case. And I want to see, and then I'm gonna color code them. So when I sit down, if I didn't like somebody, I'm gonna color code them. And if I really like someone, I'm not gonna, I mean, I already know who they are, but I probably will color code them, and everyone else is in the middle. But I want to identify all I really care about are the really, really bad ones because I'm gonna make sure later. So I do not use a jury consultant. I am that jury consultant. I it's like your whole brain is full of this. And unless you are super organized and have a good memory, like I don't know how long I can do this. Um, you need help. And so in the Rye the Ducks case, where there were, I don't know if there were six jury, I don't know how many, but the four defendants all had jury consultants, and Andrew and I had none. And what happened was, yes, he did consult with me. This is true. We were able to be so fast because they all had to caucus, and they had all these boards and stickers and all this big stuff that they were trying to fill out, and we were just like you have to go super fast. I've tried out apps, not fast enough. I don't want messing around with an app on an iPad. I've tried I tried, you know, I tried a bunch of different stuff. My old way, because of how my brain works, it works really fast, which you need to do to identify who is a problem, who is a real problem. Because the defense is gonna do just what I just did, right? They're gonna pick the one that they know that's gonna come off because they're so negative or biased, and they're gonna ask them the question. I was gonna say they're gonna try and poison the jury with with that. They will. And they're not gonna ask who else bel you know agrees with that. No, they're just gonna put that out there so everybody's thinking about it. Yeah. While they were waiting for that. But I'm gonna come back to that person and I'm gonna say, wow, you said this, and I'm gonna say who else who else I'm gonna do it. Yeah. So that's kind of like, you know, the mix of this thing is really interesting. It's super psychological. You have to have a really good understanding of human psychology, you have to be quick to track, you have to be, if not ADD, you have to be able to see and feel that, and you have to make connection. And that is the key.

Mo Hamoudi : 10:43

Yeah.

Karen Koehler : 10:44

How do you make a connection when there's a group? And it's energy, it's eye contact. Let me just give you a couple examples and then we're gonna have Mo take over. So people that are not comfortable with eye contact in a crowd, who haven't taught like giant CLEs, or are really comfortable with a lot of people, will not will not do this. They'll they'll put their hands in their pockets or behind their back, all terrible things. Uh, or they'll hold on to their script or they'll read it and go one by one, versus someone that is really comfortable. The best, so there's you know, there's people that'll scan like a, you know, like a uh what's that called, like a blonde sprinkler. You know, they'll just keep going like this, or they'll look at just a couple people, the lawyers, because they're you know, how do you do it? And it's just energy bouncing back. So what I'm doing when I'm talking to a big jury is I'm going boom and then I'm going boom and I'm landing on different people, and then I'm then then they're maybe they're giving the people that give back to me, then I'm already, I know like I have a connection. I already can't that's connection, connection. And you can start seeing like these little micro, like they're gonna go like this, or they're gonna lean forward, or they're gonna smile a little bit. You start to this stuff that you can't hear it. You have to observe it and feel it. And that is what a lot of jury contest consultants do, is they're more psychological, they can pick up on that stuff. Most lawyers are just really, really focused on being correct and winning a case, so they can't really do that. But it's superhuman connection, and you're building that connection, whether it's good or bad. Yeah, and you're not running away from it, and you're being non-judgmental because that's how you build a connection, is just that hi, I see you, and I respect you. And maybe we don't feel the same way, but that's okay. I respect you, I respect you. Tell me, please share with me. We really want to know. We respect you. We're not gonna judge you. Your opinion is your opinion, and it's worthy. That's what we're doing. Mo.

Mo Hamoudi : 12:56

I mean, I I I learned how to do vaudir through bartending.

Karen Koehler : 13:01

Darius, can't get any better than that.

Mo Hamoudi : 13:03

I mean, really, I mean, all I do is like it's as if I've back in New York, I'm behind a bar and uh getting people to talk to me and serving them. I'm a I'm you know, I'm being in it's a service-oriented task. And I I like to really um uh establish ground truth sometimes with juries. And I'm like, what I what I say to them sometimes is like, look, this is actually a safe, safe space. What we want to know is we want to know how you really feel. Because both of us have a right to have a fair case, a fair, fair assessment of the facts. And the only way we can do that is that if we're honest with each other, and I sometimes start with an act of honesty, sometimes, not all the time. One of the things I do is is that I say I grew up in a home with domestic violence. I am I could not be on a case that involves domestic violence. And and and it's that I just could not be totally impartial to to both sides because I've too much emotionally invested in in the event. And uh so I share that with you.

Karen Koehler : 14:12

Can we can we pause because this is like one of the most important things? So for the for people watching, like what Mo's saying right now is probably one of the most important things you can do in Vardear. And Oprah would say you have to give to get.

Mo Hamoudi : 14:27

Yeah.

Karen Koehler : 14:28

Yeah. So I sorry for interrupting, but I just want people to know, like, I got chosen when you started doing it because that is so important.

Mo Hamoudi : 14:34

Yeah. And so so you share that and you say, and I share that because I want to tell you that that it's important that you're honest. And you and I lay that out. I said, is there anybody you have a general sense of what this case is about, because they're told generally what the case is about. Not they're not giving specifics, that feel that they just can't be that fair. And I have never had somebody not raise a hand.

Karen Koehler : 14:59

Can you can you tell us like you call it an act of honesty, but it's more than an act of honesty. An act of honesty is like, I'm wearing black socks today.

Mo Hamoudi : 15:10

Yeah.

Karen Koehler : 15:10

What is that? It's more. It's yes, Mike. Mike just raised his hand and let me just say five minutes. Oh that well, but he did raise his hand, and the the judge at the last kit in my last status conference, Rory Leed, raised his hand and she said, We're not in kindergarten. You don't have to raise your hand. I died.

Mo Hamoudi : 15:30

That's funny. That's funny.

Karen Koehler : 15:31

Because I d I also will raise my hand sometimes, but when she said that anyway, um, what is it? It's not it's not just an act of honesty.

Mo Hamoudi : 15:39

Because that's the way I think about it. I just be like, you know, being honest.

Karen Koehler : 15:42

It's being vulnerable.

Mo Hamoudi : 15:44

Oh, being vulnerable, yeah.

Karen Koehler : 15:45

That's it is it is more vulnerable than honest. It is because they could just think you just made that up. Yeah. And who knows, maybe you did. I mean, some people say weird things. Yeah. I've heard people say weird things. Well, and I think you've got to be a really good actor to do that. Who would and who would want to make up that, right? No one. That's why it's a personal vulnerability issue. It's literally giving a piece of even though it's speak the truth, it's for me, it's speak from your heart. Yeah. Well, and you're becoming it's like you're giving them an intimate moment of your personality. Yeah. And that kind of it's like becoming a friend, sort of a little bit. Yes. Yeah. So but you can overdo it and people can think it's gamey and manipulative.

Mo Hamoudi : 16:26

Yeah, yeah. So you just you do that. I do that because I'm being honest. And what ends up happening is that I immediately start a conversation about someone usually steps up and says something very compelling about their past. Trevor Burrus, Jr.

Karen Koehler : 16:41

But you're still not taking credit for what you're doing. You just keep calling it being honest. You're underestimating what you're doing. Well, uh, which is giving a piece of of a of a past that was painful for you and that made you have feelings of insecurity and angst and has had lifelong implications for you. You shared that with total strangers.

Mo Hamoudi : 17:05

I did.

Karen Koehler : 17:06

So it's so you're you're minimizing what you do because I think, and the reason I'm pushing you on this is because A, it's so important. But B, it's also so rare that people really will do that.

Mike Todd: 17:20

Yeah.

Karen Koehler : 17:20

It's rare because it because people think if you're vulnerable, you're weak. Some people do. What what I think about that is that the most people will react with compassion, I think, and and feel closer to you. And uh I also think that when you do stuff like that, people will feel more for what they're than thinking about in the case.

Mo Hamoudi : 17:49

I the feedback I get, because my my style, my strategy in Vodir is to understand thinking styles. I want to know how people think. And the only way I know how people think is when they speak about themselves, their process thinking styles. You know, I mean, there are engineer-minded men and women who think garbage in, garbage out. You just you can tell that's how their logic conversationally goes. And there are people who are much more, I would say, um uh uh uh uh like poetic and and they speak more in a poetic style. And so when you disclose something, and I'll I'll I'll I'll adopt what you're saying, is that I gave a part of myself to them. You did, and and I was being vulnerable, and I watch how they force us to give.

Mike Todd: 18:37

You gotta give together.

Mo Hamoudi : 18:38

So you do that, and then you start to see that, and then and then somebody gives back, and then you hear a compelling story, and then you thank them. I always say, Thank you for sharing that. And then wait, wait, pause. Yeah.

Karen Koehler : 18:55

True stories multiple times. I I and I'll just tell you one. So the defense lawyer is talking to a witness, or witness, a juror. They and the juror says, I'm really uncomfortable about this case because my mother died from medical negligence.

Mo Hamoudi : 19:14

Yeah.

Karen Koehler : 19:15

And the the um the uh lawyer says, Okay, thank you, and goes to the next person. Yeah. Oh, doesn't he? Just said that his mother died and they just went well okay, thanks. And and or uh again, I mean these come right back when I'm thinking about it. Another another guy says, My daughter was involved in a terrible car crash, and I'm you know, this is she didn't survive. Normally it involves death or something terrible. And the defense lawyer didn't even say thank you. They just maybe they did, they just went to the next person. And um even though I am against that defense lawyer, my heart just sinks for. us as lawyers or the process because because it's such a failure uh because this is a human process and it is so important if somebody says something like my father died my mother died my child died you go how are you feeling thank you for sharing that must have been horrible are you doing okay do you think that this is a case that you could sit through and normally they're they're already at the point of like they're already sick like they want to get out of there so badly and you you have to do that because you're a human being number one but number two and I hate sometimes I hate to say these things because it sounds like we're so manipulative. Yeah but it's our job we already we're doing a job our job is to protect our client and to advance their interests so when you are a compassionate attorney and you're following up with someone who said their parent or child died because the defense lawyer didn't or for any reason the jurors the other jurors are watching you do that.

Mo Hamoudi : 21:22

Oh I mean when you make a promise to them that this is a safe space the fact that the defense lawyer did not follow up signal to the rest of the jury this is not a safe place because left the juror hanging after being honest about something that happened to them. And everybody watches when you're doing Vauir all the eyes are on you and so your physical presence and how you're connecting with the juror and so the technique I was talking about the being vulnerable you know giving the get that Karen describes which is better than what I was saying.

Karen Koehler : 22:04

Well I mean it's better always how it happens it always works that way.

Mo Hamoudi : 22:08

I'm always she always describes things better than I do. Is that you stand I turn what that juror said I acknowledge what they've disclosed and I say how does anybody what are what are some feelings people have about what this juror just shared? And I had a juror say I thought that was incredibly brave I said well can you tell me a little bit more about what you mean by that and then what ends up happening is that what I think the objective of a of a Vodir is I say that you the vau deer itself I don't think makes or breaks a case is to create some level of camaraderie and and and stewardship between the jurors that they're there and they're going to do something incredible. That they're there to do something very special and you're empowering them that what they're going to do is very important and it's going to involve very serious things. Because that's when they get into the jury room and they deliberate if you have done your job and we'll talk about this next is how they get into the deliberation room to me Karen I think it is the thinking style it is how they think and how they speak about things that's going to make or break the case.

Karen Koehler : 23:23

Okay we gotta wrap this one up and come back on the next one. So and we've done Vardiere together and I don't and he's more you're you're more logical than I am.

Mo Hamoudi : 23:33

I'm more intuitive and heart based what I I just gave I just gave I was vulnerable.

Karen Koehler : 23:39

And then it's more heart based than the there was no logic I I I really enjoyed doing Vardir with Mo because having the two different perspectives our styles are very similar but he is looking more for the brain logic. I'm looking for the heart logic which is not logic. I'm looking for I'm looking for the I'm very intuitive based.

Mo Hamoudi : 23:59

Okay so the next part let's talk about us doing the Vardiere because I want to start that one.

Karen Koehler : 24:04

What?

Mo Hamoudi : 24:05

Yes okay