The Velvet Hammer™ Podcast

Decoding Voir Dire Part 3 | The Jury Selection Series

• Karen Koehler and Mo Hamoudi • Season 5 • Episode 47

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Episode 47: Decoding Voir Dire Part 3 | The Jury Selection Series

In Part 3 of our voir dire series, Karen Koehler and Mo Hamoudi break down what happens when a politically charged case collides with real human bias, and why jury selection can quietly decide the outcome before opening statements ever begin.

Karen walks through her damage model and the Starbucks bike scenario that exposes how jurors really think about pain, loss, and responsibility. Mo reflects on trial partner chemistry, Zoom voir dire, and the moment you realize your best juror is now an alternate. 

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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 :

All right, so last summer Karen and I tried our first case together, and it was a protester who was unfortunately killed when a car went the wrong way down the freeway in I-5. And um and and so we we were selecting a jury to do this case. Our lawsuit was against the state for designing a roadway um carelessly, which led to this. And and because of that, but those actions caused caused protesters that we walk into this.

Karen Koehler :

Karen's like, first of all, Karen's like I know it's coming.

Mo Hamoudi :

Karen's like, Karen's like, um, I'm gonna do vaudir. And then I and then I'm like, and then I'm like, I'm like, okay, all right.

Karen Koehler :

She's like, No, he pat he patted.

Mo Hamoudi :

Yeah, I okay, I patted a little. I went I I patted a little. I went, and then she and then she's like, you've only done criminal vaudir. Civil vaudir is different. You're not gonna be able to do this. Okay, so I'm just gonna do it, all right? And you can just watch and take notes, and then the next case you can do it. It's like okay.

Karen Koehler :

This is all true.

Mo Hamoudi :

Okay, then she comes back and goes, All right, here's what we're gonna do. I'm gonna do the first panel, and then you can do the second panel.

Karen Koehler :

Because he patted so much, I felt bad.

Mo Hamoudi :

No, okay, okay, okay, okay, okay, okay, okay, okay, okay. Okay, okay, okay, okay, okay. Okay.

Karen Koehler :

No, it's not really. I didn't just feel sorry for him. I I did I did feel like he could do it.

Mo Hamoudi :

Okay, okay, okay, okay, okay. So then so then we go on, right? Right? And then she's uh and then and then you know, by the way, Karen is sticking out Karen. She is sticking out Karen. Do you know what I mean? Yeah, yeah, I think I know. Sticky, sticky, sticky, sticky, sticky, sticky, sticky, zigzaggy. Yeah. I mean, every little thing, little sticky note.

Karen Koehler :

I I just use little words.

Mo Hamoudi :

I don't use like a little word, like yes, or paw, or peach. You know, and I'm like, that was just me, right? Okay, wait. All right. So she goes through, we're we're doing Zoom Bondir. We're in King County, all right. And Karen goes through the Zoom Vondir, and then we take a break.

Karen Koehler :

Wait, how did I do?

Mo Hamoudi :

She did excellent, she was fantastic.

Karen Koehler :

And that wasn't very descriptive. It's Zoom Vardeer, which you hate.

Mo Hamoudi :

All right, I hate it.

Karen Koehler :

It's very different.

Mo Hamoudi :

Karen was very calm. She was very focused on each journey. She would move along, and she was very pleasant.

Mike Todd:

And why just to interject, why do you hate Zoom Wardire? Because look at me. You can't get the you can't get the connection that you did across the project. Imagine me bartending over Zoom? No.

Karen Koehler :

It is not the same.

Mike Todd:

No, no, I know it isn't.

Karen Koehler :

It is a lesser form of our craft, but that's what the judges want, and you can make do with it.

Mike Todd:

Well, it's the convenience now that they that they're going for.

Karen Koehler :

It's not just convenience. The old way, about 20% of the people that they called would come to the courthouse. With Wardeer, by Zoom, it's about 80% of patients. So they have this really high participation rate.

Mo Hamoudi :

Yeah, you just the heat, the action is missing. Okay. Back to the story. Okay, okay. So okay, okay. So then we're done with the first panel, right? And then we go take lunch. So we walk across the courthouse and we're sitting there and we're eating lunch, and then Karen goes, she's like, Okay, I'm gonna do the second panel. I don't think you can do it. She says, She's like, You can't do it. You see, we gotta get these two. One of them, one of them is a cop. We gotta get the cop off. She's like, You can't do it. You're not gonna be able to do it. I'm gonna just do it, okay? And then she just keeps eating, you know, her little vegetables and stuff. Because she doesn't eat anything that is meat-oriented, because she's complete vegetarian. She's eating her little vegetables, like vegan. Yeah, little vegan, little little carrots and cucumbers. She's just and then she goes up, she's like, Okay, okay, you can do it. You can do it. Okay, I'm gonna let you do it. I'm gonna let you do it.

Karen Koehler :

He's like, whips out like that.

Mo Hamoudi :

And then I'm like, I'm like, by the way, I've not said anything. I was like, okay, sure, fine. All right, yeah, go ahead. All right, okay. And then and then she's like, okay, you can go do it. All right, and then so like she's like, you gotta get him off. You gotta get him off. You gotta get those two off. You could if you don't get those off, I'm gonna I'm gonna just get in and I'm gonna do it. We go in We go into the back of the country. I'm a little bit of a control friend. We go back to the courtroom, and I'm sitting there about to do the volume, and then and then suddenly stick. Stick stick stick, stick, stick, stick, stick, stick. I'm literally like, by the way, the jury can't see, yeah, okay, because they're not they're not in the in the courtroom with me, they're just seeing the screen and stick, stick, stick, you know, little sticky notes everywhere. Like, I'm like, what are you doing? You know, I got those two jurors off for cause within five minutes, and then she let up. That's true, and then she relaxed, and then she let me do my thing, but but I just kind of tell you. It was such a joy, you know, watching her, you know, working with her, and and and you know, and and that dynamic continued throughout the entire trial. The, you know, like even after we selected the jury, the whispering, the Oh, I thought you meant me saying you can do this at all. But then taking it away.

Karen Koehler :

No, no, but she kind of did.

Mo Hamoudi :

She did. She was like, she would like to say, Oh, by the way, you're now taking these three witnesses. I'd like, hello. It would have been nice to know this when the trial started, but I can do that, I don't mind. Or when I'm up there and I'm questioning a witness, click, click, click, click, click, click, click, you go, click, click, click, click, click, and it's her walking up, and then you go, stick, stick, stick. The jury's looking at me and I go, and I look at him, and the jury smiles, and I go, and I go, uh, and I ask the question, uh, and I ask the question, or you'll hear her go. I'm asking, I'm talking to the witness. I go, yeah. She's like, you're boring.

Karen Koehler :

I said, you're boring then.

Mo Hamoudi :

You're boring them. Stop asking those questions. Oh god.

Karen Koehler :

Wait, this is beyond remote.

Mo Hamoudi :

But I had to say, because that's like, you know, part of part of the the the the the this the the process of audir is you're doing it with another lawyer, and you know, the jury picks up on the synergy between the two lawyers. Uh, but but the but the but that was that was uh that was uh um stylistically the cop that I removed, it was it was just two questions. I was like, you're a police officer for Seattle Police Department, yes. I was like, were you involved in the protests? Yes. Obviously, every one of them was.

Karen Koehler :

So here by the way, I believe that we that the the jury panel was so critical on this case, and it's one of the reasons we why we lost. And here's here's the problem. This was a very political case.

Mo Hamoudi :

Yeah.

Karen Koehler :

And the people, people were pro pro post, pro protester, got stricken for cause. Like, and there were so many that were pro because we're in Seattle. And it it was like reverse for us. Like we were trying not to get let them take get all of our people off, but they did. They got so many of them off for cause. They did because they would say, Yes, I believe that protesters have the right to f to free speech as long as they're not being violent, which this is a case of a peaceful protester. Yeah, and believe you know, remember I told you I'm a heart person because I'm looking at what is in that heart, and I can tell you when we do our fourth episode, which should be on for cause, how I get people off for cause is always by the heart, it's not by the head. I get them off by the heart. So those we were just watching our jury just shrinking and becoming not the jury that we wanted, and there was nothing we could do because people wouldn't say they would keep an open mind about it.

Mike Todd:

Do you think that some of that was the judge showing his bias, maybe? No, it was just the judge.

Karen Koehler :

The judge was great. Great judge, and she didn't try to rehabilit so you know, one thing the judges do, which is not great, Mo already described it, I talked about it, is they say, we we we move for cause, and the judge says, Well, well, you know, juror number so and so. If I read the law to you, you will you will follow it, won't you? And you can be fair and impartial until you hear all the evidence because you haven't heard any right now, right? And the jurors all say yes, yes, and the judges say, Yeah, yeah, no, we're not gonna agree to excuse that juror for cause. So they rehabilitate them, um, which is an aggressively, which is a no-no. But a lot of the judges do that. This judge, Judge Woodland, did not do that at all.

Mo Hamoudi :

She was a fantastic judge.

Karen Koehler :

Yeah.

Mo Hamoudi :

You know, but I'll tell you this. Um, when a judge is talking to a juror is an entirely different dynamic than when a lawyer is. Because the jury looks at the judge as the authority figure and likes and likes the judge. And likes the judge. And and so when a judge says, Yeah, but when I give you an instruction, will you follow it? What the hell do you think they're gonna say? Of course I'm gonna follow it.

Mike Todd:

But I mean, uh I guess my question to the for that case then would be if the jurors are talking about that they think that First Amendment's important, how can they be, how can that be something that they're getting cut for?

Mo Hamoudi :

No, they weren't just saying that the First Amendment. What they were saying is that, you know, the the the media was so saturated with the protests, they were already of the position that the police had overreached.

Mike Todd:

Oh, okay. And they they had already So they were biased against the police for the no change.

Mo Hamoudi :

It just said, yeah, they were just if they're just pro there's a difference between violent protesting and protesting, and what the consensus was with a lot of the jurors was that they were just beating people up indiscriminately, which was all over the news. And and so there are some cases, like that case, like it's just inherently biased built into it because of the visibility and the knowledge that already is in the sphere about the case.

Karen Koehler :

We knew what the divisions of the of the people were gonna be because we did we do mock trials, we do focus groups. So we we knew the archetype of who was gonna come. What we didn't foresee was how many people were going to be so pro-protester that they would be knocked out for cause. It was a lot. It was so many. I don't think I've ever had a case other than Ride the Ducks where everybody hated the Aurora Bridge. I also didn't really understand how many people we would lose who hated the Aurora Bridge, because we tried to also sue the state and the city for the Aurora Bridge, but all those truths got knocked out because they hated that bridge more than they hated the Ride the Duck Company. And we just lost everybody.

Mo Hamoudi :

There's also misconception that when you're suing the government for money, that the taxpayers are paying for it. Yeah. That is not accurate. It's not. They're insured. They're insured. And the taxpayers, it doesn't come out of the tax coffers.

Karen Koehler :

But so well, sometimes it does.

Mike Todd:

Yeah, I was gonna say some of that money is intermixed.

Karen Koehler :

Well, some of them like you know, when they when the the the cases against children being abused in foster care, oh yeah, that that's after a while they run through all their insurance, yeah, and then then they don't have much insurance. Then the public's paying for it. But in this case, it was an insured event.

Mo Hamoudi :

It's an insured event. So they were trying to think about well, I mean, I I think that I think they were thinking about why are these what is so special about the case? And what we were we could not preview the case. We weren't allowed to preview the case a great deal. But what I feel that the defense took advantage of What do you mean?

Karen Koehler :

What who who wasn't able to preview the case?

Mo Hamoudi :

Like we weren't going into the uh nuts and bolts and facts of our case.

Karen Koehler :

Oh, you mean with Vardir? No, no.

Mo Hamoudi :

With Vaudir.

Karen Koehler :

But we didn't have to because you know a lot of people had already known knew it from the news.

Mike Todd:

Yeah, I was gonna say most of the I I can't believe anybody at that time wouldn't have known that that happened.

Karen Koehler :

Almost everybody did.

Mo Hamoudi :

What the state did that was tactically smart, and I think that they learned from Vau Deer is they put on a police officer who was sympathetic, presenting, to speak on behalf of the state. And in fact, that police officer cried on the stand. Yeah, they did not put the head of the agency up, the like the head honcho. Yeah, because he he is he presents very okay.

Karen Koehler :

We're we're going too far.

Mo Hamoudi :

Well, that's Vadir. I mean, that's learning from Vadir.

Mike Todd:

I guess my question for that then would be in the Summer Taylor case, how do you feel? Was it just that the you know political environment created a jury pool that had that was biased against the police, or was it that what you ended up with sort of failed what you hoped the jury would do?

Karen Koehler :

Well, so it it was more it was a little more com it wasn't just such a a one-issue thing. Even the one the ones that stayed and ultimately ruled on the case, no one was happy about the state and the city because um because of how how how they kept letting the protesters on and then they didn't take these additional safeguards. They came on their their final decision really was more of the guy that picked it went up the wrong way. That wasn't that wasn't something that the state should have had to foresee, even though they could have blocked it off and done a better job. I think all of the jurors were critical that like either you let them on and keep them safe or you don't let them on. Like, why would you let them on and then criticize them? The jury found that there was no negligence for Summer Taylor, which was a victory for us. You know, a moral victory and a huge victory for that family. That Summer Taylor was not negligent because the state and the city created this platform for those protesters to go and protest on. So more complex, but the the bottom line was we we just we lost our jurors, and then you end up with alternative jurors, right? So you get the 12, but then I try to get one alternate for each additional week. So if it's a four-month, I mean a four-week case, then it'll hopefully have three alternates. This case was a two-week case. We tried it really fast, two and a half weeks.

Mo Hamoudi :

We tried it fast.

Karen Koehler :

There was two alternates, and unfortunately, our best juror was one of the alternates.

Mo Hamoudi :

Yeah. But where where the what's interesting about the selection process?

Karen Koehler :

I mean, that could have been the whole difference between the whole case.

Mo Hamoudi :

Oh yeah. So the it, but but the alternate was selected at the at in the beginning. I can't remember for some some judges picked the alternate at the end.

Karen Koehler :

We knew we knew who the alternates were. Yeah.

Mike Todd:

Yeah. When when I got when I was on the jury, they sat the 12 and the two alternates, or one alternate. I can't remember how many they had.

Mo Hamoudi :

Some judges are smart. They say, I'm not gonna tell you which one of you are the alternates.

Karen Koehler :

Yeah.

Mo Hamoudi :

So that they all pay attention. Because you don't want the alternates going, well, I'm not gonna decide anyway, so I'm gonna doze off.

Karen Koehler :

I mean, it's it's positive and negative. I once had a juror who became almost hysterical, broke down crying when they learned that they were alternate at the end, because they were so invested in the case and so devastated that they could not participate in the deliberation. There's no good way. There is no good way.

Mo Hamoudi :

There's no good way. It was interesting that the this thinking about how we did Vaughir and the outcome of the case, would I have going back in time, you have would you have done anything different?

Karen Koehler :

How do we how could we have saved any of those jures?

Mo Hamoudi :

I don't think there's anything we could have done.

Karen Koehler :

I mean, we just we I I don't I just yeah. Anyway, uh there's more cases than that case, which was very difficult because of that reason. Um but so when I go into Vardear, I do have little sticky notes. I'll also use cue cards, you know, like uh index cards. But I'll typically have like four words written down on it because and those are the things that are particular to the case. I told you like alcoholic, like that was one. Um or um so we were looking for a liberal jury. We were we're looking and we we and or you're looking for people who may not be comfortable with um different lifestyles um uh of other people, or their background had a criminal element in it that you know is gonna come out. Or they had, you know, there's something you should never present someone as perfect. There's always to be something that's not, or that you're concerned about. There's a lot of biases against a lot of different things. Like if your client's a lawyer, holy heck, you're gonna have a really hard time um winning that case. You just will. If it's a it's a medical negligence case, there's a huge bias favoring the doctors. So you need to figure that one out. You have to go to these topics that you are worried about. So I will do that, but then my I don't just look at liability, I have to look at damages. And so for me, the issue is who is gonna be a problem on damages? You can have a great picture on liability, but if you don't have damages, then what was the whole point? So I have little tried and true. It's like it's like you know, I have a it's like I I don't bring in a suitcase of stuff, but it's like I do from all my years of doing Var deer, you have these different little models, little thinking models that you can work with with a jury um to just talk to them. And it's it's not really premeditated, like because you're not reading it, but they're little models, and so I'm gonna tell you when I'm gonna do it.

Mo Hamoudi :

Tell us some of these.

Karen Koehler :

Okay, this is my damage model, but this was invented by someone else so long ago, and that I don't know who it was, but it's not unique to me. Um, but it's one that I almost always use, and I don't care who knows about it. Like a defense lawyer can listen to this and I don't care. And in fact, this is not this podcast is open to the world, and we don't care because for me it's like I have never met a defense lawyer to this day, and I and I I can deserve my comeuppance who's done Voardear better than I do. Because people, most defense lawyers are more scripted and they have to go through way more channels and they're accountable to way more people, versus I can go there and tell you I'm looking, I'm gonna go in there with my heart and I'm looking for the heart. Like what kind of a mission is that, right? So, but this is one of my little models. You're out of Starbucks. I go to Starbucks. I use Starbucks. We other people have used different things. This is as old as time. You're on your bicycle, you drive up to Starbucks, you park your bike, and you get out, you go in, you're looking through the plate glass window as you're standing in line, the car comes up and you parked your bike perfectly right. Like it's In the correct stall and the person comes up, hits your bike, knocks it over, damages it. Who should pay for that?

Mike Todd:

You would think that it would be the person that hit your bike.

Karen Koehler :

Okay. Who agrees with that?

Mike Todd:

Everybody will. 20 people raise their hands.

Karen Koehler :

Same scenario. You've parked your bike, except for this time you're still on your bike. A car comes, hits you, breaks your right hand. Who should pay for that?

Mike Todd:

Did you park your bike correctly?

Karen Koehler :

Still same thing. Same thing. Everything's the same except for you're on the bike. I'm on the bike.

Mike Todd:

Still the person who was driving.

Karen Koehler :

Who should pay for my medical bills?

Mike Todd:

The person who's driving or their insurance company, because to have a car that you're driving, you're supposed to have insurance.

Karen Koehler :

So same scenario. I broke my hand, um, and I am a um transcriptionist. I cannot not type. I'm gonna miss two months of work. Who should pay for my lost wages?

Mike Todd:

The person's insurance company or them that hit you.

Karen Koehler :

Okay. Same scenario. Um I'm transcriptionist, I do have an anxiety disorder. Um and for my stress management, I play the piano. I've been told that I can no longer play the piano the way that I used to. I can't play it at all for the next three months, but even after that, I will have I have a little arthritis now. My fingers are not quite as mobile because it was a complex fracture of my wrist. And it actually hurts me when I play the piano. Who should pay for that?

Mike Todd:

This is where it gets really difficult. Every time I added a few different things in there that I'm gonna point out. The arthritis now makes it so that you can't play as much. But was there anything that you had before that accident that might have caused that?

Karen Koehler :

Everything is related to the accident.

Mike Todd:

Okay, so no pre-existing conditions whatsoever. I mean, it's getting it's getting sticky now, but I still would say it's the car and their insurance company.

Karen Koehler :

Okay, but this is this is where it breaks down. And people will say things like you can get another hobby.

Mike Todd:

Yeah, I I thought that for a second too.

Karen Koehler :

Uh huh. So you start to be able to identify, and then you say things like, when once you once you're done with exploring that, then there it's not the end. Then the next one is, now you don't know anything about the person who hits you's financial ability to pay for anything. You will not. You will not learn that there's insurance or not, you will not learn um anything about them, and you're gonna make this judgment. Will that change your decision?

Mike Todd:

I would say no, but I feel that most people would say because you work for a plaintiff.

Karen Koehler :

Yeah, exactly.

Mike Todd:

I I I'm I I can't, but it's too hard for me to go that deep into being a normal person now. So so but I think that most normal people would say yes.

Mo Hamoudi :

So yes, of course, yes. Of course, yes.

Karen Koehler :

So what the this vehicle, all I'm looking at is a vehicle for discussion. And it's super obvious what I'm doing. I'm not trying to manipulate them. I'm not using the facts of the case. I just want them to get to the place to discuss the gray area of general damages, which is the area that I am most interested in. I'm not interested in them paying medical bills or wage loss. I know they'll do that. I'm I want to know the general damages stuff. And so that's what I'm focusing on. And in Vardir, you make a mistake if all you do is focus on the liability as a plaintiff lawyer. You have to focus on all of it. You have 20 minutes to do it twice. Yeah. So I need the vehicle that'll get me there really fast. And so then this is where I wrote a Vardir booklet many years ago, like 15, but I describe it as my witch's brew. And so I'm doing my witch's brew and I'm throwing in all these different elements, and I'm doing the witch's brew, and dirt number one pops into it, and then who else has that? And more and more and more until I'm content that I know who is all in the witch's brew, and then poof, I'm gonna get them thrown out for cause. And I'm not gonna get them thrown out for cause. I'm gonna ask, I'm gonna invite them to leave, and they're gonna want to get out of the case.

Mike Todd:

Yeah.

Karen Koehler :

Um, so that's because there's magic. That's why I call it the witches brew. It's a magical process. And that and if when I used to do the deselection where I wanted to get them out and it was kind of, you know, like I'm gonna get you out. I don't do that. I'm gonna invite them out and they're gonna be trotting out that door happily and empowered and feeling respected. So that's my kind of little an example of how I deal with Vardir. It's not just like, show me your heart and I'll show you my heart. It is way more focused, but also not manipulative. I don't want to manipulate them. I want them to look at their heart clearly along with me and decide: is this really where I belong? Because most people, I believe, want to do a good job. They want to fulfill their their civic duty. They want to be proud of it. And they shouldn't be conflicted.

Mike Todd:

Okay, we should wrap this one up.

Karen Koehler :

And uh famous last words from Mo.

Mo Hamoudi :

Famous last words is that uh that's an entirely effective way of dealing with something in plaintiff's cases that most lawyers don't, which is damages. It's a very good tool, what you just described. I've never heard you talk about that. I was very impressed.

Karen Koehler :

Didn't I do that in Summer Taylor's class?

Mo Hamoudi :

No, you didn't.

Karen Koehler :

Oh maybe I did something else. But I I don't always do everything you shouldn't always do everything like wrote, but it's a very common thing that's a really good tool.

Mo Hamoudi :

Yeah. Okay.

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Karen Koehler

Co-host
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Mo Hamoudi

Co-host

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