How Voir Dire Fits w ...

How Voir Dire Fits with Appellate Practice | Robert Swafford

August 18, 2022 | by D. Todd Smith

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Conducting an effective voir dire is both a science and an art. But ensuring that attorneys ask the correct questions to support challenges and objections requires careful planning and strategy. It also requires on-the-spot evaluations of the individual jurors and their responses. To help attorneys obtain the best jury panel, Robert Swafford, an attorney and jury consultant, created the Strike for Cause jury-selection method. Robert talks with Todd Smith and Jody Sanders about jury selection and the opportunities it presents for both trial and appellate attorneys. Robert also discusses ways that attorneys can use venire challenges and error preservation to prepare for and conduct their examination.

How Voir Dire Fits with Appellate Practice | Robert Swafford

Our guest in this episode is Robert Swafford. He is the Founder and Owner of Strike for Cause Jury Consultants. Welcome to the show, Robert.

Thank you for having me.

I was thinking back as we were planning the show, I don’t think we’ve had anyone come on who does what you do. It’s exciting for us and some people may wonder what’s the crossover between appellate lawyers and jury consultants. I think it’s greater than what people would tend to believe at first. We’re excited to get to visit with you. Let’s get into this. Robert, will you tell a little bit about yourself, your background, where you went to school, and how you got to be a lawyer.

I was born in Odessa, which is out in West Texas. I was the kid who talked a lot. When you’re a kid who talks a lot and likes to read in Odessa, what they would say back then in the 1960s and ‘70s is, “You’re going to be a lawyer like Warren Burnett.” Some people may not be old enough to know who Warren Burnett was, but he was one of the greatest trial lawyers who ever lived. Thankfully, I got to work with him a little bit toward the end of his career, but that’s how it started. I was a college debater. I went to Baylor because Baylor had one of the best college debate programs in the country. I think it still does. I then transitioned into Baylor Law School because I knew I wanted to be a litigator.

What was your early career like right out of Baylor?

I thought that I was going to be a big-time trial lawyer like Warren Burnett. What he would do is he would do criminal defense and he would also do personal injury plaintiff’s work. That’s what I started out to do, but very early on in my career I got the opportunity to go see Cathy Bennett speak. She was not a lawyer. She was a psychologist who was one of the early inventors of this thing that they call jury consulting. She had this remarkable idea that was revolutionary at the time. In voir dire, instead of asking questions that were actually just a speech disguised as questions in order to try to persuade your audience, why not ask some questions to find out some information about the individual human beings who were out on the panel?

It seems obvious, but that’s not how jury selection was taught when I was in law school. What was I taught in law school was that you would essentially ask questions to try to get your licks in first before the other side did. It was essentially a disguised opening statement. That would have been in 1986, and to this day I still see lawyers wasting their time doing that. For me, it was revolutionary. It’s like, “What a great idea and how much more fun is that to ask questions and find out about people?”

It seems like the law in Texas has tracked that movement. They have gone away from talking about the facts of the case to, “Let’s talk about the prejudices and the biases that the individual jurors bring in from the outside.” It’s interesting that the law has tracked your path in that direction.

The interesting thing about that is I had a case where I said, “I’m concerned about this young judge. I don’t think that she understands ‘the law’ of voir dire.” She had made some statements that gave us some pause about do we want to change something in the motion in limine. It gave me the idea that maybe she thinks that we should be talking about the facts in voir dire, which you should not be doing. Luckily in this case, as is the case in many of my cases, we had a very good appellate counsel who was on the team to do the motion practice and protect the record.

We were able to put together a little brief that talked about Cortez and Hyundai. It talked about what constitutes an improper commitment question, and how it’s not appropriate to talk about the facts during voir dire. If either side talks about the facts in the voir dire, what would be a proper question can very easily become an improper question. In terms of the law, the law isn’t that you can’t ask commitment questions. You could never get a strike for cause if you didn’t ask a commitment question. You have to commit to them that, “Yes, I could not consider awarding money for mental anguish damages,” or I would absolutely ignore an instruction saying, “Don’t consider a person’s failure to testify.” They have to be committed around that.

There is something called an improper commitment question, which is asking them to commit to the specific facts of this case. None of the scripts that I write for lawyers have any of the facts in the case. The thing that was interesting about this is that when I showed up on Monday morning to pick the jury, the judge had read every case. The thing that’s interesting is I picked 22 juries post-vaccination and the 23rd one is on Monday. In some of the courtrooms I’m walking into, especially in Harris County, some of the judges have not been alive as long as I’ve been practicing law.

One thing that’s universal is they all want to do the right thing. If you give the law to them in a digestible way, they’re not offended. It did require teamwork. I know how a jury selection goes and I know generally what the cases are. Forming that into a cogent memorandum or brief in a written form such that the judge could read that and get it, and with hyperlinks to the cases because she reads the cases, was great teamwork. I’m always looking for ways to team up with the appellate lawyers because the cases I get hired on are big cases. There has to be enough money at stake to hire a lawyer who does what I do. Usually, if there’s money for that, there’s money to hire an appellate lawyer.

That’s one area where our practices overlap it seems. It’s making sure that the court understands the law of jury selection. Another big thing that happens at the jury selection stage or what we in Texas call voir dire is preserving error at the jury charge phase. It is a whole body of jurisprudence. Because we haven’t been trying cases to juries very much in the last few years, we haven’t been touching regularly. We think back to all those cases, but what do you see in your work day-in and day-out in terms of error preservation? Is that something that you pay specific attention to for instance when you don’t have an appellate lawyer on the team with you?

I handle those even if I have an appellate lawyer, and they’re always grateful. This is specifically in reference to Strike for Cause. The name of my business is Strike for Cause because I’ve developed the strike for cause method of jury selection. I’ll hold up one of my charts for you, and you can describe to the audience what this chart is.

This part of the chart has lots of Xs on it. In each of those Xs, there’s a C with a highlighter on it. The C with a highlighter means that the person was a strike for cause. My entire system is about maximizing strikes for cause. One of the things that a judge needs to understand is that if they don’t grant my strike for cause whenever I show up in the courtroom and I’m entitled to it, I know how to preserve error.

One of the things that is important is making sure initially that the person has said something that gets them strike for cause. There’s a great quote by Mark Twain that says, “The difference between the right word and the almost right word is the difference between lightning and a lightning bug.” Oftentimes lawyers will ask questions like, “Who has a hard time with mental anguish damages? Who here would find it difficult to award mental anguish damages? Who doesn’t like mental anguish damages?” None of which are a strike for cause.

group of four people sitting at a table, one with hand raised
Voir Dire: In voir dire, instead of asking persuasive questions, why not ask some questions to actually find out some information about the individual human beings who are out on the panel.

If you ask, “Who here simply could not consider awarding mental anguish damages?” That’s a strike for cause. In the cases with Cortez and Hyundai, just because someone has a bias, that’s not enough for a strike for cause. It’s that the bias would ultimately affect how they would decide the case. It’s important whenever you’re writing voir dire questions to initially make sure that if a judge denies your strike for cause that the judge made a mistake. That’s the first part, that you actually got it. I’ve had lawyers complain about very good judges not granting the strike for cause. They didn’t get it. The judges have lots of discretion.

I’ve been in a position where we’ve established a strike for cause. The judge has granted tons of them and probably just gets tired or worried that I’m going to burn the panel, so he grants one. After we go through that process at the bench, I’ll say, “Judge, I’m requesting an additional peremptory strike.” The judge will look very confused, “Why Mr. Swafford?” “You should have granted a strike for cause on juror number seven. For this ground, you didn’t grant the strike for cause for juror number seven. I’m asking that you give me an additional peremptory strike to cure that error.” The judge with a confused look on her face said, “Denied.” I said, “Thank you, your honor.”

We go back and we do our peremptory strikes and then I come back and I say, “Judge, before you tell us who’s going to be on the jury, I have one more thing I have to put on the record.” “Why is that?” I’ll say, “I need to put this one thing on the record.” She says, “Okay, Mr. Swafford.” I said, “Judge, I had to use one of my peremptory strikes on juror number seven. As a result of that, I was not able to use it on juror number 46 who was an objectionable juror to me.” They’ll then go, “Okay.”

I think some of the judges don’t know what I’m doing. It’s important in terms of that timing. If you wait until they’re seated, you’re cheating. He could make up, “I would have used it on this person that ended up on the jury.” That’s one of those things that I handle that is very strongly law-based. I was on a pretrial with a judge on a very high-profile case. I was saying, “Judge, I think it would be a good idea for us before trial to have a discussion about what gets a strike for cause and what isn’t.”

In the older days, if you had a very established judge, they might be a little offended by that and say, “I know what the law is on voir dire.” “Judge, there’s a very notorious person. Because of how notorious they are, we need to get clear that just because most people we think are not going to like him, it doesn’t constitute a strike for cause.” The judge understood that and made it clear that they understood that. It was probably an unnecessary conversation, but sometimes rolling into a trial, talking with the appellate counsel, and doing a little bit of education beforehand can be helpful.

The other conversation we had was in all of these post-pandemic cases we’ve asked for and gotten an alternate juror, with one exception. We need to get alternate jurors on both sides. If you get up to two alternate jurors, each side gets an additional peremptory strike. Judges are all over the map as to how they do that. There are some judges who say, “I like this. I’m not going to argue with them,” even though it’s not how it’s done. They’ll say, “Use your 7 any way you want.” That’s great. Other judges will say, “Use your 6 within the strike zone,” the first 24 who are in strike, “and then your peremptory in the next 4,” assuming you have two alternates.

What if there’s a double strike? The preferable way to do it is to have everybody do their six peremptory strikes, turn those in and then find out, who is the next four? Where does it go in case of a double strike or somebody didn’t use all their strikes? After those next four, you then get to use your peremptory strikes. They’ll give you a minute, “The next four, who is it going to be?” That’s the proper way, but a lot of people will say, “You do psychology or read people’s minds,” or something like that. A lot of what I do is I’m listening to the words that came out of people’s mouths and put that together with the law.

Not all that unlike what appellate lawyers do sometimes.

I was at the American Society of Trial Consultants meeting in Denver. For the most part, other trial consultants aren’t lawyers. Most of them are PhDs. There was a big discussion about some states’ moves to get rid of peremptory strikes. Arizona has already done that. There are no peremptory strikes in Arizona and they were in a panic about that like, “What are we good for if we can’t advise people how to use their peremptory strikes?” My view is, well, maybe you could learn the law and know how to get somebody on strike for cause.

It’s a problem you run into if you get advice from people who don’t know what the law is. That’s where you need an appellate lawyer. If you’ve hired somebody to advise the team who is not a lawyer, you need an appellate lawyer to step up. I’ve been in rooms where there will be ten lawyers and there will be another consultant. They’ll say, “We should ask this question.” I don’t want to shame anybody but it’s like, “That’s an improper commitment question. You cannot ask that question.”

Before we jump too much farther down the road, that’s all super fascinating. You’re teaching me things I didn’t know, which happens so often on the show. One thing that was revealed to me given your explanation was just how much strategy goes in and what kind of room there is for strategic decision-making at the voir dire stage of a case. As appellate lawyers, we’re thinking about strategy issues too, but they’re largely focused on what the law is, how it applies, and what might best persuade this particular judge or how are we going to set this up for the court of appeals.

I love the idea that in the next case you and I work on together, I can count on you to handle that kind of error preservation issue. I have to admit, that’s a little out of my wheelhouse. That’s not something I’m an expert in and I’m glad to know that you’re there. You’ve thought about all of this and now made it your career, which I was curious about. Before we move on from that too much, you were a trial lawyer and handled cases firsthand. How did you transition from doing that kind of work because you’re a full-time jury consultant these days?

First of all, I’m going to let you know that the next time we work together, we’re going to be collaborating on all of it. The great thing about having an appellate lawyer is you can think like, “I think we need to be prepared for a Batson challenge given the issues on this case,” or “I’m afraid that they’re going to try to make a Batson challenge on us.” I don’t make decisions based on race because it’s stupid. Demographics are the least likely predictor of how somebody is going to behave on a jury. If you have an opportunity to actually ask questions to people, you should do that and not make decisions based on stereotypes. Oftentimes, you have to go look at it.

It is an all-hands-on-deck team sport. If I have an appellate lawyer on my team, then we’re enlisting them at the very beginning. In terms of how this came to be in my career is that I was trying cases using the Cat Bennett method. It was asking questions like, “How do you feel about personal injury damages? How do you feel about the burden of proof? How do you feel about someone’s failure to testify,” and then getting information. That was great. All of a sudden, I was really smart in how I was exercising my peremptory strikes. Robert Hirschhorn was married to Cat Bennett and carried on that tradition. It’s very similar where they get people talking and they get information.

What was happening to me is that I was getting all these people to talk. I was getting all of this information and I’d get back in the jury room to exercise my six peremptory strikes or in a criminal case, my ten peremptory strikes. I realized that if I had 30 peremptory strikes, I would have half a chance, but I didn’t. Not with all the people out there who already think your client is guilty. I didn’t have a chance.

man talking to a group of people
Voir Dire: When selecting a jury, one of the things that a judge needs is to make sure that the person said something that actually gets them struck for cause.

I started to develop questions that were specifically designed to get people on strike for cause. At some point, I gave a speech many years ago and a lawyer asked me, “Can I hire you to help me pick a jury?” I said, “Sure.” I think he gave me a gift coupon and then he wanted to hire me to get some more. At some point, I got hired by Peter Ferraro. He is one of the great trial lawyers. We got some million-dollar verdicts and then I was in the paper.

The thing that allowed me to transition to only doing consulting was family law cases. What happened is I had been hired to pick a jury on a family law case, and they asked me if I could work with a client in terms of witness prep. I said, “I think I have some tools that could be helpful on that.” I did some witness prep. This was a notorious case where our client had told her husband that the child was dead when the child was fine. That conversation was recorded and she had testified badly about it four times.

By the time she testified on the case that I worked with her on, a very powerful divorce lawyer asked her, “Ma’am, you told your husband your child was dead, didn’t you?” She said, “Yes and I am so sorry. I cannot imagine what that was like for you. The only thing I can promise you is that I will never pull a stunt like that again.” She did it from her heart and authentically. Judge Dietz at the time said, “Best-coached witness I’ve ever seen.” That then became a substantial part of my work. I was doing witness preparation in all kinds of cases. A lot of them are in high-conflict or high-value divorce cases. I don’t know if you know this, Todd. Do you know why cannibals will not eat divorced people?

I detect a joke in here but no, I don’t.

It’s because they are bitter. You should know the answer to the next one. Do you know why divorces cost so much?

It’s because of the lawyers.

It’s because they’re worth it.

You got me.

At this point, I’ve picked juries or done witness prep for any kind of case you can try through a judge, jury or arbitrator. Catastrophic injury cases on both sides, medical malpractice, probate cases, high profile political trials, white-collar crime, murder cases, pretty much any kind of case that you can pick a jury on, I’ve done that. I always appreciate it when I have an appellate lawyer on the team, especially when you get Batson issues.

Those come up more frequently than you think. It doesn’t mean they’ll be successful, but they do come up fairly often.

What I would say is that they don’t come up as much as they should. There are so many times, especially civil lawyers won’t be thinking about it when they should. I’ve been in situations where it’s clear that everybody knows Batson but is trying to get around it. Do you all know who John Wiley Price is?

Yes. The Dallas County Commissioner.

That’s right. If you were to ask John Wiley Price why he’s still a Dallas County Commissioner, he would give some credit to me. Not all, but some. At the beginning of his seven-and-a-half-week corruption trial where the United States government was trying to put him away, the US attorney understood that he couldn’t just strike black people. He understood that he couldn’t do that.

What he did is during voir dire, he would call on juror number 2. “Juror number 2, some people simply couldn’t find someone guilty on circumstantial evidence alone. How do you feel about that?” “I don’t think I could find somebody guilty on circumstantial evidence alone.” “Juror number 7, how do you feel about that?” “I don’t think I could do that either.” “Number 14, what do you think about that?” “Juror 48, what do you think about that?”

Juror 48 says, “Everyone can see what you’re doing.” He says, “I don’t know what you’re talking about.” She says, “We can see what you’re up to.” He says, “I’m not up to anything except trying to find out about you.” She says, “You’re calling on black women.” She’s a black woman and she says, “I’m an attorney and I understand the difference between circumstantial evidence and direct evidence. Yes, I can follow the law.”

What he was doing is since he knew that he couldn’t strike African-Americans from the panel, what he was doing was going through and trying to get them on strike for cause. The judge steps in and says, “I would like to talk about the difference between direct evidence, circumstantial evidence, the snowy field and no footprints in the snow. You go to sleep, and the next morning there are footprints in the snow. Does that help anybody?”

book showing a page with a large question mark on the page
Voir Dire: When asking a strike for cause question, there are two things you want. You want to make it easy for the person to say yes, and you want the yes to have legal significance.

He just went right back to it. I don’t do this often in cases, but there are some cases that I stand up and do part of the voir dire. Since I’m a lawyer, I’ve made an appearance. I always do the questioning at the bench and argue the strikes for cause at the bench, but this is a situation where I stood up and did a part of the voir dire. I did a part of the voir dire and then I said, “Juror number 2, suppose we use the judge’s example and there was blood in one of those footprints. Someone took a sample from that blood and sent it to the DNA lab. It came back and there’s DNA evidence. Could you use DNA evidence to find someone guilty?” “Yes, absolutely.”

That’s circumstantial evidence. “If it were good circumstantial evidence, you could find someone guilty on circumstantial evidence alone, couldn’t you?” “Yes.” 14, 28, 48 and rehabilitated everybody. He made another run at them one by one but still was not in that situation. The thing is that we were able to keep him from getting around Batson by being able to explain the law in such a way that the citizens could understand it. The law is fundamental to all of this and the strategy. Do you know what their strategy was? Their strategy was they didn’t use their peremptory strikes, hoping they wouldn’t get back to juror 48. It was a seven-and-a-half-week trial with six alternates and she ended up on the jury, the person who had called him out.

Robert, as we’ve said before between me and you, I can sit and listen to you tell stories all day long because this is stuff that doesn’t happen in my world, and it’s super interesting to me to hear those details. I heard something you said that surprised me a little. Over the times that we’ve worked together, we haven’t always been in the courtroom at the same time so I haven’t had the privilege of seeing you work as often as I would like to, even though we’ve worked on the same case. You have mentioned that your role in the courtroom most of the time is you’re watching and observing. You’re consulting and moving all the pieces around at various times during voir dire a bit. It sounds like where you speak up is when there’s a bench conference.

That’s correct. If you take it all the way back, I’ll do focus groups. We’ll use the focus groups to get us information so that we can write good voir dire questions. I’ll do witness prep to make sure that our witnesses are in good shape. As a part of doing witness prep, you want to make sure you know what’s in the motion in limine, what’s not in the motion in limine, and what’s hearsay. Also, collaborating with the team about what’s coming in and what’s not coming in. We make sure that we don’t open up the door in terms of questioning. That’s what I’m saying, in terms of team approaches.

I write scripts for the lawyers to essentially read, but read them in a conversational way. When we’re asking the questions, there are two things that are important in asking a strike for cause question. The first thing is you want to make it easy for the person to say yes. The second thing is you want the yes to have legal significance. You want it to be a strike for cause. I’ve given an example before about mental anguish. There are many cases where we’ll have non-English speakers as clients. You could say to the panel, “Would all the racists please raise their hands. Get your cards on.” There wouldn’t be anything that would stop you under the law from saying that, but it wouldn’t be very effective.

Maybe a few hands will raise because we are at a different age, but it’s not going to get everybody. You can’t ask the question people have strong feelings about testimony that comes through interpreters. There are some people who would be able to consider a testimony that comes through an interpreter to be just as credible as a testimony that comes through English. There are other people who would just not be able to give the same credibility to testimony that came through an interpreter as if the person had spoken the testimony in English.

“Which of these best describes you?” “I’m in that second category. I wouldn’t be able to trust something that came through an interpreter.” “Tell me about that” because you want something in their own words. “If someone’s not speaking in English, it makes me think that they’re not here legally. What are they doing filing a lawsuit if they’re not here legally? That’s like someone breaking in and burglarizing my home and then suing me because they got hurt.” “Is it fair to say that you would not be able to give the same credibility to testimony when it came through a translator?” “Yes, it’s fair to say.” “Who agrees?”

It’s important to understand not just that the question is worded in such a way that you get a yes, but also that it has legal significance. Oftentimes, I’ll have a question and say, “Is it fair to say that regardless of the law, the facts or the judge’s instructions, you simply couldn’t do X, Y or Z.” You want it nailed down in the record. I didn’t say, “Is it fair to say with the law, the facts or the judge’s instructions.” If I said it like that, the person is going to back up, “I don’t know about the law.” What the court reporter wrote down was, “The law, the facts and the judge’s instructions.”

Throughout this process, you want to make sure that you’re working with the appellate team and understand that what you’re doing is going to protect the record and that if you ask for a strike for cause, you actually got one. Also, you want to work with the appellate team about the motion in limine. If you’ve done some reconnaissance and you know the other side does certain things in voir dire that you think are questionable, then you want to get with your appellate team and say, “We need to get this in the motion in limine,” or you want to make sure that there’s not something in the motion in limine that’s going to prevent you from doing something that you need to do. One of the things people ask me is, “Do you ever use demonstratives in voir dire?” I never do that. The reason I never do that is because when I walk into a courtroom, I ask the other side, “Are you going to use demonstratives?”

Oftentimes, they’ll say yes. “I get to see them. Show me your demonstratives,” so I know what their voir dire is before they start. Before they start, I’ll go to the judge. I say, “Judge, I have real concerns about this slide. I think they’re going to use the golden rule with this slide. They’re going to violate the golden rule.” The judge will say, “Was that what you’re going to do with this slide?” “No.” What are you going to do? Why are going to ask this?” “That’s a violation of the golden rule, Judge.” I’ve cut people off at their knees before they ever got to say a word.

I admire your commitment to what you do, Robert, and the depth of knowledge that you have to have to do it effectively. You’re talking about not only having to blend the law into what you do, but the way you ask questions dovetails into the whole strike for cause method. I believe you touched upon it when you said that what you really want to do is ask questions of folks and get them to answer in their own words. The way that you’re able to fit that together and then at the end of this process, you’ve made your strikes for cause, you’ve made your peremptory challenges, and at the end of the day, you’ve got twelve people sitting in the box.

The nature of being human is to be biased and prejudiced and have no insight into the fact that you’re biased and prejudiced. That’s the human condition. You only get a certain number of peremptory strikes. The only way you can influence a trial very much is to get rid of the people who are bad for you through the strikes for cause. I’ve had cases where I’ve had 75 people eliminated by strike for cause, but they’re not random people. They are people who are bad for me. That’s the important thing. You want the people who are good for you to keep their mouths shut. In that same case, I had a very good Harris County judge who had threatened me if I burned the panel. I said, “I’m not going to burn the panel.”

The lawyer for the other side had not read Cortez. He got up and said, “You’re going to learn and if you were to do that, would you?” I stood up and said, “Objection. That’s an improper commitment question.” The judge says, “Sustained.” The lawyer looks confused. This is a 40-year lawyer who had tried hundreds of cases in his career. He started another question, and then I stood up and said, “By the way, I handle the objections during the voir dire as well.” He said, “If you were to hear about a case that,” and then started to do the exact facts of the case. He is trying to make it hypothetical.

I said, “Objection.” “Mr. Swafford, I’ve got it.” This is in front of a panel of a hundred. He said, “Counselor, this is the third time that you’ve asked an improper commitment question. If the next question you have is not a proper question, then I’m going to end your time for voir dire. I’m going to assume you don’t have any proper questions.” He didn’t have any proper questions. He looked down at the chart and said, “Juror number 3, I see you’re a plumber. How do you like being a plumber?” He had to make conversation for a while.

What I’m saying is that the law is critical in all of this. It is a combination of personal skills, being able to be with people, asking good questions, writing good questions, and being able to listen well. There are all those skills involved, but if you don’t know the law of voir dire, then you’re at sea. You’re flailing. A lot of times, you’ll look and see if the person really has any strategy at all or they just think that this is an inquiry into the truth. This isn’t like an academic forum discussion. This is us trying to win the case. In order to do that, you have to know not only how you preserve your error, but what’s a proper question and what’s an improper question. I had a case where my entire strategy was to keep the other side from burning the panel because I knew what I would do if I were on the other side.

I assume that there are circumstances in which you would want to burn the panel. Or as you’re saying, your objective in that case was to not permit the other side to burn the panel. That being your objective, was it because you had taken a look at the entire veneer and said, “We’re going to get a good twelve jurors out of this?”

person sitting at table with head in hands
Voir Dire: The only way you can really influence a trial is to get rid of the people who are bad for you through strike for cause. So you want the people who are good for you to keep their mouths shut.

I rarely talk about my losses. I’ve won most of my 22 post-vaccination and I’ve got some big verdicts. This is one of those lessons. I learned from my losses. This was a case where I felt like in that particular county, the facts were so much in our favor that we just had to have a trial. We had not done focus groups on the case, and I’m not going to get the style of the case to the county because there are probably some appeals that are going to be done on this.

It involved a relative of a Russian oligarch on the other side. I thought of our current situation in terms of Russia and Ukraine. Just a background, I got about seven strikes for cause, but I wasn’t pushing. I was trying to hold onto the panel. As long as I seated a jury, we would win. I utterly and completely frustrated the other side in objecting to their questions. That’s why we had prepared the brief, so the judge knew what I was doing. They could not form a proper question that would get a strike for cause even though they were representing a relative of a Russian oligarch, and it was relevant in the case.

Remember that I said that the nature of being human is to be biased and prejudiced and have no insight into the fact that you’re biased and prejudiced. Who does that apply to, just the jurors or to me also? That was my bias. I was trying to hold on to people. I wasn’t trying to get rid of people, but I don’t watch Tucker Carlson. I was probably missing something in terms of there being people who don’t think Russia is that bad right now. We weren’t in Travis County. We were in probably one of the most conservative counties in Texas.

I was probably blinded in that situation by my own biases. That is something that I’m always involved in an inquiry about. Am I wanting to strike this person because I don’t like them personally or am I wanting to strike this person because they’re bad for the case? Am I not considering striking this person because I liked them so much, but they’re terrible for my case? There are other biases. One of the big verdicts we got is a $44 million verdict against Hilton in a civil sexual assault case. Michelle Tuegel was the lawyer. She’s a star, and 90% on Hilton.

In that case, she asked her question, “Are sexual assault victims on the panel good for us or bad for us?” You’re automatic would be yes if you’re representing the sexual assault victim. In a civil sexual assault case, you want sexual assault victims on your jury. That’s obvious—and wrong. Some sexual assault victims are great for you. Some are the worst jurors you could have. You had to be able to ask questions and inquire into that but also ongoingly, never stop looking at, “Where are my biases coming into play here?”

That’s an impressive feat of self-realization to be able to acknowledge your own, but you’re right. It seems like it would be critical to be able to do it effectively. To one of your earlier points, so much about jury selection always has relied on these stereotypes, but they’re not accurate so you have to see through that and think about who’s sitting there and what they’re saying. It matters so much more than just trying to point to characteristics and say, “They will be a good juror or a bad juror” because you have no idea unless you ask the questions.

It’s also illegal.

I don’t even mean just race necessarily but in general. Are teachers or engineers good or bad for a particular side, and the answer is, “Who knows,” in any particular case.

You get an opportunity to ask these individual human beings questions. If that’s all I had, then I would make decisions based on demographics. Even in Federal court, a lot of times they’re letting us use supplemental written questionnaires or the judges will allow us to submit questions for the judge to ask. Some of the judges, if you send them a good question and it’s clean, they’ll ask it the way it’s written. A lot of these Federal judges have to be clean. They can’t be weighted one way or the other, but if you send them good questions, they’ll consider them.

I don’t know if you have heard this, but Waco is now a hotbed of intellectual property litigation. Since I went to Baylor for undergrad and Baylor Law School, I’ve spoken at the law school twice a year to every practice court class for many years. All the local counsels are calling me whenever these cases get set for trial. I picked a jury and the judge gave each side fifteen minutes of attorney voir dire, but then he would allow you to follow up with each person.

We wrote fifteen questions and they were good questions. The way the process worked in his courtroom is you ask the questions and you would just have people raise their cards. We certainly used all fifteen minutes, and then we were able to follow up afterward one by one. He did a pretty good voir dire himself, but the lawyer for the other side in this intellectual property case stood up when it was his time to do his fifteen minutes. He said, “I feel like the judge did such a good job that I’m only going to ask one question. Is there anything you didn’t cover?”

You were given this jewel or this gift to address and talk to the jury and you didn’t do anything. These are huge cases. I do feel like that a lot of times, in business litigation, intellectual property litigation, commercial fraud, and those kinds of cases, the lawyers aren’t as attuned to how important it is. You ask a plaintiff’s lawyer, a criminal defense lawyer or a prosecutor how important voir dire is, they may or may not know how to do it well, but they sure know it’s important.

One thing I wanted to ask you about was as we all know, things went crazy in March of 2020 and our jury trials shut down in the most rural counties in Texas. How did you manage to pivot your practice during that time when we had no jury trials going on?

I was lucky that I already had teams of people I work with and doing focus groups. I was also doing visuals. There is a woman, Sherry, who has an exhibit company that is the best at doing visuals and demonstratives. I also have a person I work with named Angel Granados who does our day-in-the-life films and would do the audio-visual. He’s on faculty at UCLA in their film department. I had this ready-made team. I’m not somebody who’s necessarily in a position where I’m good at technology, but I have these people who are available. For example, I happen to have a light that allows me to adjust the height so that the height is just right and it’s about an arm’s length. I got all this coaching. That was early on.

I have the team and then there’s a lawyer that I work with a lot in Houston named Rob Ammons. A lot of lawyers said, “Why should we do focus groups or do witness prep or depositions if we don’t know when we’re going to get a trial.” Rob said, “We’re going to put all these cases in a box and have them ready to take them off the shelf when the courtrooms open back up.” He said, “Robert, can you do a virtual focus group? I said, “Absolutely. We can do that.”

We have never done one before, but with Sherry and Angel we got to where we could do those very well. I had already been doing Zoom witness prep because I live in Austin with all these tech people. The tech people, before the pandemic, when I would say, “When are you going to bring your team down for me to work with them to get them ready to testify?” They say, “We’re not doing that.” I said, “What? Are you going to fly me to Cleveland, Seattle and LA?” They said, “No. We’re not going to do that, Robert. We’re going to use Zoom.” I’d never heard of Zoom except for the TV show. Do you remember the show? “Come on and zoom, zoom, zoom ah zoom. We’re going to zoom ah, zoom ah, zoom ah zoom.” That was my favorite TV show when I was a kid.

people sitting in chairs taking notes, one person with hand raised
Voir Dire: In voir dire, asking good questions and being able to listen are needed skills. But if you don’t know the law of voir dire, then you’re basically at sea flailing.

I had already been doing Zoom. What I will tell you is post-pandemic, we still have lawyers who are saying, “Can you do the Zoom focus groups?” We still do virtual focus groups because we can see people well, we can hear them, and we get good information from them. We’re doing in-person focus groups too, but that’s something that has stayed true. Of course, Zoom witness prep has stayed in. I started pushing Zoom trials much to the chagrin of my fellow lawyers because they hated it. Even though one of my biggest supporters is Mike Doyle down in Houston and he argued against it. He then got a huge verdict and won. I won the argument but he got the $7 million verdict.

I refused to show up in court until I got vaccinated. Unless a judge had both a JD and a PhD in public health or an MD, and that never happened. I prepped some people. We had a couple of cases that went to trial in Waco and a few places, but it wasn’t until I was vaccinated. Once I got vaccinated, I picked four juries in the NRG Center in Houston, which is where they have the rodeo, with headphones, microphones, face masks, and spread out like stadium seating. I did four of those and the last one that I did, I took a picture of myself and posted it on Facebook and said, “Not my first rodeo.”

I did a Zoom trial. I did a couple of trials in Federal court where everyone was required to be vaccinated, which raises some interesting appellate points in terms of, “Does that give you a jury of your peers? Was that an effective panel composition?” There were a couple of those, and then all the rest of them were in places where COVID didn’t exist like Big Spring, Tyler, Waco and Georgetown, Texas, Springfield, Missouri and Tyler, Texas, and Brazoria County and Fort Bend County, and all these places where there really was no COVID.

It’s not necessarily the most remote locations as I was suggesting.

I would walk into the courtroom and be the only person wearing a mask on my side of the bar. None of the lawyers, the judge and other staff was wearing a mask. And just a smattering of the panel. In some of these counties, there are 37% and 36% of vaccination rates. I would often hear this. This is our first in-person trial. This is our first trial back so I had lots of those.

The judge would say at our first trial back, “If there’s anyone here who is worried about COVID, I just want to let you know that you’re excused. No questions asked and I’m going to further tell you that we’re not going to follow you home and make sure that you’re not out at the grocery store or anything. We’re going to take you at your word. Anybody who has a concern, raise your number card right now and you can go,” at the beginning of the voir dire. How many people in these rural counties do you think raised their cards? Do you want to guess the number?

Zero or not many.

Zero is a number and that would be correct, which does not mean that they weren’t trying to get off of jury duty for all kinds of lame reasons like, “I’ve got to pick up my child from school.” “How old is your child?” “He is sixteen.” “I’ve got to pick up my wedding dress.” All kinds of lame excuses of people trying to get off juries, but would not do the get out of jail free card.

That was one of the things that was telling, and not surprising. One of the things that we know and it’s the reason that it’s important and hard to craft a good strike for cause question is that people are wired to look good and avoid looking bad. The more technical term for that is people give socially desirable answers. In those counties, if someone said, “I’m afraid of COVID,” you would be shunned by your community. They could say anything else, but they couldn’t say that in a big group setting.

We’re reaching the end and this has been great. Our tradition at the end is always to ask for a tip or a war story. You’ve given us plenty of both, but I don’t know if you have anything that you want to wrap up with.

I’m thinking in terms of war stories. I keep telling war stories. Here’s a tip. Find out everything you can find out about where you’re going and how things are done, not just the local rules because there are all kinds of things that aren’t in the local rules. This is a tip and a war story. I have a checklist. If you’re going into Federal court, is there an attorney voir dire? If you’re not allowed an attorney voir dire, can you do a supplemental written questionnaire? If you can’t do a supplemental written questionnaire, can you submit questions to the judge? What are the deadlines on those?

In any courtroom, how is the judge going to handle strikes for cause? Is the judge going to rule based on what was said down in the panel? Are you going to be able to question them further at the bench? How are they going to handle rehabilitation? Do you need to inoculate for rehabilitation if it’s going to be a particularly bad act or judge? Have your checklist. How do they handle hardship? Are there numbered cards for the jurors to hold up? I always bring a set of laminated number cards. Juror number 1 has a card that says 1. Find out everything you can find out. How much time are you going to get to exercise your peremptory strikes? If you’re in Judge Moyé’s court in Dallas, the answer to that question is five minutes and his bailiff is knocking on the door at 4:00. Find out as much as you can find out.

Now, I’m going to tell a war story about that. I’m upstairs in a courtroom at Fort Bend and I’m going through my checklist. I said, “Judge, how do you handle hardship?” He said, “We have our special way of doing it.” “Do we need to ask the hardship questions or does the court handle that?” “We handle it.” The next question I asked was, “Where are we going to pick the jury?” He said, “Downstairs in the jury assembly room because they’re trying to have some COVID protections.”

I went downstairs and there are people lined up getting reassigned. An associate judge downstairs is listening to people at the bench. I thought to myself that there is no way that there are this many people who are over the age of 75 or have a child under a certain age that will be left without care or can’t read or speak the English language or has a disability such that they can’t participate or don’t live in the county. She’s doing something more than qualifying because there are too many people who are being cut loose. What she was doing was hearing hardship without any of the lawyers being there.

I realized what was going on. I rushed upstairs and I get the other lawyers. I said, “Judge, there’s somebody down there cutting people loose because they have a cruise scheduled or they have a procedure at the hospital, which I may or may not agree to. You probably would agree to what they’re doing, but you can’t do that. For a hardship or an economic excuse, it requires both parties and the judge to agree, and I’m not agreeing.” He said, “Where is that in the law?” I thought, “Everybody just knows this.” I was like, “Does somebody have a code of criminal procedure here?” I started to flip through it and all the while, people are being cut loose. We get down there and now I’m on the phone. Who am I on the phone to, Todd?

You’re on the phone talking to your appellate lawyer.

person with hand on chin
Voir Dire: Jury selection always relied on stereotypes, but they’re not accurate. You have to see through that. It’s really about who’s sitting there and what they’re saying.

Yes, I’m on the phone with every appellate lawyer I know to see who will pick up because they didn’t have an appellate lawyer there for voir dire. I’m calling every appellate lawyer I know saying, “What do I do?” They said, “Ask for more peremptory strikes or ask to drag them all back in to find out what the basis was.” I asked for those, denied. I asked for 88 peremptory strikes for everybody that they cut loose. They were denied. I don’t know how to preserve error on that. What you have to do is you have to know before you go into the county how they do things. I began my objection with the judge, “I want to begin with I’m not from around here.”

It’s not a good thing to say.

That’s why I don’t know, but here’s the thing that’s interesting about this in terms of an appellate question. I had these two appellate lawyers. How does one appeal or preserve error if a judge grants a strike for cause that they should not have? If someone had not clearly exhibited bias, if somebody had not said anything that would indicate that there should be a strike for cause, how does one preserve error in that situation? It’s a trick question. I saw an appellate lawyer on the other side of a case. They did bring appellate counsel for the five defendants in this case. You could tell, he was utterly frustrated by the fact that I had cleared out so much of the panel.

He said, “Judge, we should get an additional panel.” That’s not a cure. That’s a cure if the judge didn’t strike someone who should have been struck. I haven’t seen cases on this, but I think if a judge strikes somebody that they should not have struck, then there’s no harm as long as you have twelve people who are a fair and impartial jury because you’re not entitled to a favorable jury. You’re only entitled to a fair and impartial jury. I want to subtly inject that whenever a judge is on the fence about something to say, “Judge, we have a panel of 100. We got plenty of jurors, we’re not going to bust the panels today?” You’re not going to be overruled for granting something.

Robert, thanks for spending time with us. We appreciate it. We learned so much and it’s great to compare what you do to what we do. It helps me to understand the jury selection process even more.

I’m obviously such a law nerd whenever it comes to this. I’m a voir dire nerd and it is hard to have people who will, and certainly not my wife. Although she’s great with me, she’s pretending. I feel with you guys that you are getting it. This is great. This is cool interesting stuff because it is cool and interesting stuff that we do. I look forward to working with you in the future.

Thanks very much.

Important Links

About Robert Swafford

Robert Swafford is the founder and owner of Strike for Cause Jury Consulting, as well as the creator of the Strike for Cause Method of Jury Selection. Robert attended Baylor University where he received his B.A. in Economics and his J.D. from Baylor Law School. He has extensive training in powerful listening and effective speaking, as well as expertise in the field of ontology. Ontology provides the foundation for the Strike for Cause system.

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