The Velvet Hammer™ Podcast

Decoding Voir Dire Part 5 | The Jury Selection Series

• Karen Koehler and Mo Hamoudi • Season 5 • Episode 49

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0:00 | 20:22

Episode 49: Decoding Voir Dire Part 5 | The Jury Selection Series

The final installment of our five-part Voir Dire series. Karen Koehler explains how to respectfully invite jurors to excuse themselves by honoring their moral convictions rather than attacking them. Mo Hamoudi explains why judges focus on what jurors say, not what lawyers argue, and how letting jurors talk themselves into a cause challenge is often the winning move. Mike Todd offers insight into what actually happens in deliberations and why silence, leadership, and thinking style matter more than most lawyers expect.

They also address Zoom voir dire pitfalls, the risk of silent jurors, and why there is no such thing as a perfect jury. Only the best one you can build in the time you are given.

If this conversation resonates, follow the show, share, and leave a review telling us which voir dire lesson took you the longest to learn.

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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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Karen Koehler :

Last and final.

Mo Hamoudi :

Yeah. We're gonna talk strikes for cause. Strikes strikes for cause.

Mike Todd:

Oh, I'm good at these.

Karen Koehler :

Not as good as me.

Mo Hamoudi :

Oh my god.

Karen Koehler :

You just aren't. No, I am. No. No, no.

Mike Todd:

And you were just saying, do strikes for cause come before preemptories or they happen, they happen during. Okay.

Karen Koehler :

Some judges, you have to ask the judge, and the judge will tell you. Some will allow you to do them on the spot, which is, in my opinion, the only good way to do it. Let us do them if you're listening and you're a judge. Let us do them on the spot in front of the jury. Just that has how it has to happen. You have to wait, the moment has passed. Very difficult. But remember when I talked about the witches brew? So I remember when I gave you that whole um example of Starbucks.

Mike Todd:

Yes.

Karen Koehler :

So I'm doing the witch's brew, and I get to that point of how many of you, you know, does anybody feel like there shouldn't be any amount that's given because you're now in this general damages category, you know? You can't play the piano anymore. There will be one person that wants to go first, and you let them.

Mike Todd:

And what do they say?

Karen Koehler :

They say everything bad that I already did, which is you know, find another hobby, you know, life is life, something. And then you say, who else believes this? Okay. Maybe you only got that one person. Maybe you got eight, which is what I got in that case. A huge amount. Um, and you do not say how dare you. You do not say that's terrible that you would think that way. You say the opposite. And you believe the opposite, which is I appreciate you telling me how you feel about this. It sounds like this is a very morally based personal integrity type of feeling and conviction that you have. I do. How strongly do you hold your moral or personal convictions? Very strongly. If someone asks you to change a moral or personal conviction, will you do so easily just because they've asked? I absolutely will not. If I ask you to change your conviction so that you can be on this case, will you do that? No. If the defense lawyer asks you, will you do that? No. If the judge asks you, will you do that? No. And that's where I talk about them inviting themselves out of the case. They will not do it. So you want to go to what they are morally convicted of, and if it conflicts with what they're gonna have to do, allow them that space to get out of the case. You do it respectfully with no judgment. Okay, now you try to beat that.

Mo Hamoudi :

Okay, so I mean, I'm not gonna try to beat that, but what I'm gonna tell you is that I always win. Judges, judges, when thinking about for a cause challenges, listen less to what you are saying, listen more to what the juror is saying.

Mike Todd:

So that's why you want to get them to say it out loud.

Mo Hamoudi :

Say out loud stuff. Okay. So if you're leading them into like I my experience is if you're leading them, too much leading, the judge is gonna be like, I used to be a lawyer before I was a judge. Mr. Hamoodi, I know exactly what you're doing. I know the little shuffle you're doing there, right? So what I like to do is I like to get them to talk, say that like maybe the cases involved law enforcement witnesses, the person's law enforcement. I ask them, I go, tell me about your job. Do you enjoy it? What do you love about your job? Tell me about your colleagues.

Karen Koehler :

Do you have 22 rounds of 20 minutes in criminal?

Mo Hamoudi :

Yeah, we have sometimes I had 30, 40 minutes.

Karen Koehler :

Each time?

Mo Hamoudi :

Yeah. For for for whole vauder.

Karen Koehler :

Yeah, so that's way more.

Mo Hamoudi :

Okay.

Karen Koehler :

That's how you can burn time like this.

Mo Hamoudi :

You're the worst. You're the worst.

Karen Koehler :

I am the worst.

Mike Todd:

Wait a minute, wait a minute.

Mo Hamoudi :

Just because burn time.

Mike Todd:

Just burn time.

Mo Hamoudi :

I'm just kidding. I'm not going to be a good time. I don't know. I'm done. I'm done. But then he starts talking, I go, and I go, and tell me about your your the friendship you have and the camaraderie. And he goes on and on. And then that this is if I if if I came at the end of this case and I read you this instruction on credibility, and I told you, and I told you that you shouldn't believe a police officer, is it gonna be an easy thing for you to do? No. To me, like I've now tied his bias to law that he's gonna have to read and follow. And then I step back and I and then and then and then I'll let him go. I go, you're I'm entitled, my client's entitled to a fair case. Yeah. Are you really gonna be fair? Just be honest. And they'll be and I've had him go.

Karen Koehler :

You can't say be honest.

Mo Hamoudi :

No, no, I do I do. I am myself. John, John, Judge can allow you to stop. No, I'm saying, come on, are you really gonna be fair? And then because the the the moment is so fluid, the judges will not interrupt me. Can we just say that Like it's just like me and him just talking behind like I'm the bar, but also making a Negroni.

Karen Koehler :

But also, don't you agree that when a lawyer is doing all the talking, you're doing it wrong.

Mike Todd:

Yes, yes.

Karen Koehler :

The jurors have to be talking.

Mike Todd:

Yeah, you want to get them you want to give them small questions that they're gonna give big answers to. So you get them to talk as much. Yeah.

Karen Koehler :

So anyway, but those are the kind of the mechanics of it, and you want to do it during each session, and you want if the judge lets you, and they better let you, otherwise it's very difficult. And it's super much harder, if that's such a thing, on Zoom. It's just way more. That would need its own special. I don't even want to talk about it, because it needs its own special session. It's very different, and I've learned how to deal with it, and I've learned how to temper down my expectations on Zoom Vardeer versus non-Zoom Vardeer. Because you can't people can't talk at the same time. You can they can raise their hand at the same time, but that rich witches brew process, it's not you can't do that.

Mike Todd:

Because you're getting you're it's like a stutter effect all the time.

Karen Koehler :

Yeah, you can't. It you you it doesn't, it's not conducive to that.

Mo Hamoudi :

The other technique, it's you if you gotta be able to do it, you can do it, is that I've taught vaudier. I've taught teachers how about vaudier, and I've taught lawyers vaudier. Is I do this and it changes the dynamic. And then I I've had lawyers object to me doing this. I'll say, so when I teach, I just like slip at it. Right? I go, like, come on.

Karen Koehler :

I go, so when I teach smoother, slap slimier than I am. It's slimy!

Mike Todd:

It's like it's the flim flam sauce.

Mo Hamoudi :

No, no, it's it's the flim flam sauce. You've got when I teach, I'm just telling everybody goes, Oh, he teaches. And then I go, the Vodir, I've you know, I teach, and then I've had uh lawyers come before court and say, Your Honor, I just want to object before Vodir starts that he does not talk about himself.

Karen Koehler :

So I mean and here's funny. I think that's funny. Here is the thing, right? As you change, you have to go with what you have. Yes, right? Well, I am now a grandmother, so I'm like gonna emphasize the granny in me. People like grandmothers. Uh yeah, you it's a little unexpected that the grandmother's a lawyer, but granny is a lawyer here, and I'm like just so sweet and like kind of grandma-ish.

Mike Todd:

But that can be dangerous too. I mean, if somebody really didn't get along with their grandmother, you then pointing that out.

Karen Koehler :

That's true, that's true, that's true. But I mean, using who you are is the most important, whether you say it or you don't say it, yeah. Like we are both very chatty and very people friendly. So that comes out. We are smiley and we get a lot of people talking because we know how to get people talking. Yeah. But we are totally different people. Yes.

Mike Todd:

Oh, yeah, yeah. Your styles are entirely different.

Karen Koehler :

Totally different.

Mike Todd:

Though you speak, like I would say you speak the same amount when you're talking.

Karen Koehler :

Yeah.

Mike Todd:

But that's the only comparison that I can make.

Mo Hamoudi :

Yeah. But like the technique for the lawyers who are listening to this is if you want to talk and like leave impressions without saying much, say things like, when I coach. And then you ask a question, or when I teach, or you know, when I'm with my granddaughter. You know?

Karen Koehler :

Okay, but we're supposed to be talking about for cost.

Mo Hamoudi :

Yeah, but for cost, but it's not making them like you. No, no, no. But it's that it it this because I think that the that the center of a forecast challenge is getting them to essentially to come out and talk about who they are. And the judge, so you can tell the judge later, look at what he said, what she said. They're not going to be able to follow your instruction on this issue. But you've got to get them to start talking.

Karen Koehler :

But then here's the challenge. Remember, I said at the very beginning of this whole thing, there's a challenge. When we used to call it deselection, and when we just go in and go boop, boop, boop, boop, boom. You know? My record was like 15 of them or 23. I can't remember. Just get them off. And then what do you have left? So the challenge is I invite them off. I want them to want to leave. I want them to see, like, yeah, I'm really not the right juror. I want it to be a peaceful process. I want the other jurors to see that I treated that person with respect and concern and that I honored that person and honored the process. I do not want to attack them. I do not want to personalize it, and I don't want to belittle them. But I've seen people do that all of it. And I probably did it earlier on in my career. But non-judgmental, that the that is why when I talk about the moral belief system, how strongly do you believe in it? Whether you use those words or not, that's what you're doing is you're saying you are a person of integrity. Your messaging is you're a person of integrity. Yes. I respect that about you. There are going to be things here that you're going to be asked to do that may conflict with that. Would you like to invite yourself off? Yeah.

Mo Hamoudi :

And that's a formula. But how you treat the juror is going to impact the ones that end up in the box and how they what they think about you.

Mike Todd:

Because that's that was going to be my next question. Are there jurors that are kind of that you find are both sides and you can't decide whether or not they should go off?

Karen Koehler :

Well, it goes in your hierarchy, right? You can never have a perfect jury. Yeah, no, that's why I'm asking this. They're gonna like in Ryder Ducks, they're gonna take off everybody that hated the bridge.

Mike Todd:

Yeah, exactly.

Karen Koehler :

In the protest case, they're gonna take off all the protesters, right? Um but what you're trying to do is to prevent the really bad jurors from getting on that maybe are downloaded. So you have to make these calculations of, well, they're not great, but they're better than that option.

Mike Todd:

Degrees of how bad they are, basically.

Karen Koehler :

Yes, or good. So it's all a matter of you're going through that list, and the judges give you very little time to do this, like, okay, I'm gonna be back in 15 minutes, or we're gonna do it right now, because they want to seat that jury. Now they typically give you some time because if you're doing Zoom or deer in King County, you can't bring the jury in. But if you're doing it in person, as soon as you pick the jury, they come in. He excuses the ones that go and they swear in the ones that are stayed. They don't want to waste any time, they they respect the jury's time.

Mo Hamoudi :

And how you feel about the jury that you ultimately pick, like you said, sometimes there are both sides, is a reflection of how you feel about your case. Because, like, if you know you got a problems in your case, you start you, you it doesn't matter. Like, you're gonna you're gonna lose if it's a bad case. It I have I mean, to have a jury go sideways has been a rare event. Most times they get it right. They get it right. They the other side just has a better story than yours. If you're able to tell a better story, you win. I really think that.

Karen Koehler :

I don't know if you agree or disagree, but I think that at the end of the day it comes to I think every jury that agrees with me is a good one, and everyone that doesn't is horrible. And there's of course you would. But that's the truth. Well, yeah, but but that is the truth.

Mo Hamoudi :

But but sometimes you wait a minute. You gotta you if your story is moved.

Karen Koehler :

Give me this. Who my story is always right? All right. That's a good one. So let's talk about there's a couple juror types that we can have time to talk about. Um these are warnings. Okay. Number one, there are jurors that one of the ways that you can stand a jury is just not to say anything. Yes. Most jurors know that. The less you stay, the more likely you will stand a jury. And in fact, I had one case with Pat LaPlay where the um presiding juror, who was a librarian and a male, who we thought for sure I mean he that would turned out to be the presiding juror. You don't know who the presiding juror is, right? The juries decide who the presiding juror is when they begin to deliberate after the closing argument. We had not asked him a single question. Oh my God. He had escaped.

Mike Todd:

So you didn't know you don't know anything about him now, other than the general questions that the judge had.

Karen Koehler :

And now I know all about him because afterwards I met with him. But I knew nothing about him beforehand. Um, which was a wake-up call for me of, and this was in like the 90s. Uh boy.

Mike Todd:

Has that ever happened since?

Karen Koehler :

No. Okay. It's never happened since. I didn't try I didn't keep track of it well enough. You know, I didn't keep track of it well enough. Nobody is not gonna say anything. I've everybody's gonna say something. I'm gonna get some kind of a read on you. And then you're looking at are they a leader or are they a follower? You're looking at a whole lot of psychological factors when you're deciding who's gonna be on that final jury, who can you, who's already come off for cause, and who do you have left to remove as a peremptory? So you're looking for, okay, remember you said, oh, they're kind of good for us and they're kind of bad for us. Are they a leader? That's the tiebreaker. If they're a leader, then and you have those peremptories to burn, then you're gonna take them off. If they're a follower, if they're a person that's gonna be quiet and and doesn't have a lot of people, might not might not have anything to say, but will follow what some of the others say. However, then you're also looking at the polarities. A person that's super, super negative to you may not, even on an admitted liability case, is gonna drag the verdict down. Because many juries, no matter what you say, add the top number and the low number and then average them, or add them all up and average them. So somebody that's really low is gonna drag down the average. So you have to think about all these weird things as you're talking to the jury, as you're thinking of your uh, can I get this person off for cause? That's why you want the four causes off, because they're gonna increase the chance of you losing and they're gonna increase the chance of you not getting damages, although that's not always correct. And we know that from real life and focus groups that a jury can be totally anti-your case on liability, but once the group has said yes, there's liability, that person can be a driving force on your damages. So people are split often. A person bet on liability may be really strong on damages and vice versa. And so that's there's a whole lot of that going on.

Mo Hamoudi :

I think that like jurors are moved by the process of the case, by what they hear and how they're how they're persuaded by their colleagues in deliberation. I've seen it happen. Jurors move thinking, right? And so like my focus is always getting in thinking style. Like, how does this person think? Like, how do they get a point A to point B? And there are only like really so many thinking styles, and it has been a benefit to me to have a diverse thinking style. What do I mean by that? Type A, type B personalities, you mix them together, you get a lot more friction in the deliberation, you get a little more juice. You know, the dangerous juries to me are like monotone. There's no life in them. And so, like, you know, and so I think that a diverse jury, all walks of life, old, young, and everything, is is best serves the case.

Karen Koehler :

I just want a case where everybody wants to vote for the plaintiff.

Mo Hamoudi :

I know you do. But you gotta also think like you have a job to do to persuade them.

Karen Koehler :

Well, there's that. Yeah.

Mike Todd:

Why don't we play a little game for a second?

Mo Hamoudi :

Okay. I like that game.

Mike Todd:

I'm on the jury. Okay. What do you guys what what what do you guys read me as? You don't even need to ask questions. You already know me, so just go off what you know.

Mo Hamoudi :

Oh.

Karen Koehler :

I'm gonna say, you know, Mike, you kind of you kind of you know, are daunting. You have a low, big voice, and you know, you are uh you seem like you are um a strong personality, but then I see your eyes crinkling up at the corners. What's that all about?

Mo Hamoudi :

I don't know. See, I see Mike as the person who'll be quiet in a deliberation room, he'll let the talking go on, and then he'll say, No. No, that's not right. I think this is the right thing, this is justice. You and then and then what he'll be, he'll be very prepared, he'll listen, and he'll detail out the facts of why he thinks something's like I think that I think that Mike, what I've learned about you, if nothing else, from this podcast is how wise you are.

Karen Koehler :

And so what I think you will do, it's not that you'll just play devil's advocate. I think that, and you I don't think you're just gonna lay it out. You do like to ask people the questions that will lead to the answers that you want to have.

Mike Todd:

Yes, and that's exactly what I did when I was in a jury. Pretty much everything you guys said. Yeah. I was probably a little bit more vocal than you described, yeah. But I didn't I waited until I knew all the until we got into the deliberation room and had the facts that we were allowed to look at when we were in there. Because, you know, there was stuff, there's stuff that gets said that you're not allowed to use when you get in the room. So, and and there were a bunch of people who the second they saw the defendant thought that he was guilty. And I was like, We're not supposed to do that, guys. You know, they rolled in, they were like, hey, let's let's vote right now, because they all thought everyone was gonna say guilty and we were gonna walk out of the room five minutes after we got there. That's not what happened. And a bunch of those people, as a matter of fact, all of them changed their mind. And I did not come in saying this was it. I just said, I don't know yet. I don't think we should vote this soon. I want to look at all the facts with everybody. And then when we started looking at stuff, we found stuff that they didn't say that were in the pictures and stuff, and you know, it changed people's minds. That's what I'm getting to. And I didn't go in with an agenda of trying to do that. I it's just when I saw the stuff and I was like, You guys are saying this? I I really think you're on the wrong track. And you know, uh five, six hours later or whatever, we made a decision, and a lot of people had changed their minds. Let me ask follow up pictures.

Karen Koehler :

Wait, wait, can't I gotta go time up? However, that's and that's how Varde. year goes guys. That's how when the time is up, the judge ends. It's all over. It's just done. But um thank you guys for sharing.

Mike Todd:

Yeah.

Karen Koehler :

Yeah. That was great. It was a good little series. Yeah. Okay. Bye. Bye.

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Karen Koehler

Co-host
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Mo Hamoudi

Co-host

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