Bar News - March 19, 2014
Court News: Panel of Judges at Section Meeting Discusses Voir Dire, Offers Trial Tips
By: Kristen Senz
Three Superior Court judges answered questions on a variety of topics, including voir dire, posed by members of the NH Bar Association Labor and Employment Section during a forum at the Bar Center last month. The judges also provided a list of trial tips for attorneys practicing in NH Superior Court.
Many New Hampshire lawyers know that Superior Court Judge Larry Smukler is not the biggest fan of attorney-conducted voir dire. At the forum, where he was joined by Judges Charles Temple and Richard McNamara, Smukler fielded some questions about his views on the jury selection method.
Citing concerns over the court budget, outbursts that could taint the whole pool of jurors, and an aversion to turning “every case into a first-degree murder case,” Smukler described his personal dislike of lawyer-led individual voir dire. He said lawyers and judges have different roles during trials, and both are important. However, while a judge wants an unbiased jury, a lawyer wants one that is most likely to favor his client. Smukler explained that he doesn’t “particularly like preemptory challenges, either, because I think they’re inherently discriminatory.”
In response to questions from attorneys in attendance at the forum, Smukler said he usually is willing to ask jurors questions that are provided by the lawyers in a case.
“I agree with you that the standard, the statutory [judge-conducted] voir dire doesn’t always uncover everything that needs to be uncovered, and when lawyers give me questions, that’s helpful,” he said.
A law passed in 2005 gives all attorneys in New Hampshire civil trials the option to conduct panel voir dire, following the court’s general questioning. Judges retain discretion over whether to allow it in criminal trials.
Smukler’s colleagues at the forum said they don’t have strong feelings about voir dire either way. McNamara said he thinks individual voir dire is “overrated, but it’s very important to the bar, and we’re here to serve.” All three judges said they have seen attorneys conduct voir dire in ways that are not effective.
Later during the session, the judges offered practice tips for attorneys with cases in superior court. What follows is an edited list of those tips.
• Make sure witnesses shut off their phones (especially expert witnesses).
• Jurors see much more than you think they see. Make sure your fingernails are clean and pay attention to your facial reactions and body language inside and outside the courtroom.
• Don’t be repetitive. Jurors get bored when they hear the same thing said over and over again in different ways.
• Don’t bury your argument. State your strongest argument first, if possible, and make sure it’s clear.
• Keep your closing argument short. The statutory limit is one hour, and while you can make a motion to exceed the hour, your argument better be good enough to warrant it. Some of the best closing arguments have been made in five minutes.
• When talking to jurors, don’t talk like a lawyer (but do your best to come across as authentic).
• Juror engagement is crucial.
• Control your client. Don’t let him or her make negative facial expressions or beat up on the defense table during testimony.
• If you’re going to use technology in the courtroom, make sure you know how to use it and have practiced.
• Think about how jurors will view your electronic exhibits in the deliberation room.
• Generally, Power Point is boring, but it can be effective if used well.
• Trial tips don’t matter. Well, they do, but the facts of the case tend to matter a lot more (according to Judge McNamara).