Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

Other Point

In voir dire, the whole point is to find out information about the potential juror. When you’re seeking out experiences or attitudes that you might use to warrant a strike or to mount a challenge for cause, you care about what that individual thinks, not about what anyone outside the courtroom might think. But it can be a great strategy to ask those venire members what they think others think. Why? Because people will sometimes externalize their own opinions or experiences. For example, awhile back I wrote about the 2014 election for Scottish independence. The polls that asked individuals for their own votes were off by about 10 points, while the polls that asked what individuals thought others would do tended to be much more accurate reflections of what happened in reality. The reason for that is, when talking about others, we tend to mitigate some of the biases like “social desirability” that cause us to try to frame ourselves and our own views in a favorable light. So when it comes to an opinion that might not be comfortable or favorable, it is easier to talk about others than to talk about ourselves. 

And there is research to back that up. A recent study (Orvell, Kross & Gelman, 2017) for example, found that people make “you” statements when they’re actually sharing their own beliefs. For example, the old “You win some, you lose some” is generally said by the person who just failed at something. Psyblog quotes study author Ariana Orvell, “When people use ‘you’ to make meaning from negative experiences, it allows them to ‘normalize’ the experience and reflect on it from a distance.” Looking further back, there is also research (Wood et al., 2010) supporting a general relationship between our own views and what we project onto others. What we say about others is often what we see about ourselves: As Jeremy Dean notes, “The generous person sees others as generous and the selfish person sees others as selfish.” So for the litigator conducting voir dire, the ability to strategically shift focus from the self to others should be in your bag of tricks. In this post, I’ll focus on a few settings where that approach might be useful. 

Topics Where You Might Ask About Others

Of course, sometimes asking directly is the best course. But when perceived social desirability might interfere with an honest answer, or some other bias is potentially at work, then questions about others can be a useful proxy. Of course, the relevance and usefulness of each question will depend on the case, but here are a few kinds of questions that might reveal attitudes that you would not get with the direct and personally-focused question. 

Racial Bias

Do you think that the average person still harbors some racial bias, or do you think that we as a society have moved past that? 

Employment Practices

Tell me what typically happens at your company if someone sees signs of wrongdoing? Are they more likely to raise a complaint, or more likely to let it go? 

Corporate Attitudes

Do you think most of the people you know would tend to trust or tend to distrust a large corporation?

Products Liability

When the typical consumer gets a product like this, do you think they read and follow the warnings, or not? 

Criminal Cases

Do you believe people are more likely to believe a police officer because he or she is a police officer?

Energy Cases

Do you think most royalty owners would say they have a positive experience or a negative experience with energy companies? 

Intellectual Property

What do you think most people would support if they had the choice: protection for intellectual property, or competition and lower prices? 

Pretrial Publicity

Do you think most people who are exposed to this coverage have formed an opinion on the case? If so, what opinions do you think they’ve formed? 

Cause Challenges

Now, if there was someone else who had the same background and attitude that you’ve just described, do you think that person would have a tough time being open-minded on a case like this? 

The meaning and usefulness of answers to these questions will vary depending on the case and depending on the person. Of course, it is not as easy as saying it is always a case of projection.  The potential juror could legitimately think, “You didn’t ask what I thought, you asked about others,” and might even respond by distinguishing between what others think and what they think. That can also be useful. Ultimately, their perception of what is “normal,” is still going to have an influence on their own opinions. Like everything else in voir dire, it is one more piece of information.

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Other Posts on Voir Dire: 

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Orvell, A., Kross, E., & Gelman, S. A. (2017). How “you” makes meaning. Science, 355(6331), 1299-1302.

Wood, D., Harms, P., & Vazire, S. (2010). Perceiver effects as projective tests: what your perceptions of others say about you. Journal of personality and social psychology, 99(1), 174.

Image credit: 123rf.com, used under license, edited

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