While opinions vary on which aspect of trial is most important, I suggest it is voir dire, the process of selecting the jury. The term has its origin in the oath taken by jurors to speak the truth. The word “voir” is said to derive from the Latin word “verum” meaning truth. Many cases are lost the second the jury is sworn in. Great advocacy cannot save the day when the wrong jury is in the box. Trial lawyers should pay more attention to preparing for voir dire, and even consider asking the court to permit submission of a jury questionnaire.

Many years ago there was a trial lawyer who was known to state confidently in open court during jury selection, “Your Honor, I have no need to strike any of these good people seated in the jury box. They all are very satisfactory to the defense.” This same lawyer could never understand why he lost so many cases. He lacked appreciation for the importance of attempting to learn the jurors’ predispositions, beliefs and values, the keys to reaching minds and hearts of jurors in the courtroom deciding the case. All of us possess predispositions to think and behave in a particular way. These predispositions are based on experience and play a role in jury deliberations.

While the process of voir dire permits trial counsel to pose questions to the jury panel to discover bias, only some courts, such as Texas state courts, permit full voir dire where lawyers directly ask questions to the individual prospective jurors. In Maryland, state courts offer a limited voir dire. This is true for mosts courts across the country, including most federal courts, barring a cause celebre. The process involves counsel preparing questions for the trial judge to pose. A few states, including Maryland, further limit voir dire questions to elicit responses only for the purpose of using strikes for cause as distinguished from posing a question to determine if peremptory challenge should be made.

Last week the Maryland Daily Record gave us a helpful rundown of several new Maryland Court of Appeals modifications to some often-asked voir dire questions. The Court of Appeals, while rendering a couple of recent opinions, clarified when certain questions proposed by counsel should be asked: In Pearson v. State, 432 Md., Court of Appeals, No. 49, September Term, 2013, Maryland’s highest court held that (1) a trial court need not ask during voir dire whether any prospective juror has ever been a victim of a crime, but, on request, a trial court must ask during voir dire: “Do any of you have strong feelings about [the crime with which the defendant is charged]?” and (2) when all of the state’s witnesses are members of law enforcement agencies and/or when the basis for a conviction is reasonably likely to be the testimony of members of law enforcement agencies, on request, a trial court must ask during voir dire: “Have any of you ever been a member of a law enforcement agency?”

Pearson emphasized my previous point that Maryland employs limited voir dire. That is, in Maryland, the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of specific cause for disqualification. Unlike many other jurisdictions, facilitating the intelligent exercise of preemptory challenges is not a proper purpose of voir dire in Maryland. Thus, a trial court need not ask a voir dire question that is not directed at a specific cause for disqualification or is merely fishing for information to assist in the exercise of preemptory challenges.

The court explained its reasoning why a trial court need not ask during voir dire whether any prospective juror has ever been the victim of a crime: a prospective juror’s experience as the victim of a crime lacks a demonstrably strong correlation to a mental state on the part of the juror that would give rise to specific cause for disqualification. However, the Court of Appeals held that on request, a trial judge must ask during voir dire whether any prospective juror has strong feelings about the crime with which the defendant is charged. State v. Shim, 418 Md. 37, 54, 12 A.3d 671 (2011). The “strong feelings” voir dire question makes the “victim” voir dire question unnecessary by revealing the specific cause for disqualification at which the victim voir dire question is aimed.

Pearson held that on request a trial court must ask the “strong feelings” question with the following phraseology: “Do any of you have strong feelings about [the crime with which the defendant is charged]?”Pearson disapproved phrasing the question as a compound question, i.e., “Does any member of the jury have such strong feelings about [the charges in this case] that it would be difficult for you to fairly and impartially weigh the facts?” The reason the court disapproved of the compound question is that it shifts from the trial judge to the prospective jurors the responsibility to determine if the prospective juror is biased.

If a prospective juror responds affirmatively to the “strong feelings” voir dire question, that juror should be individually questioned by the attorneys; or on request, by the trial judge, and the trial judge would then determine whether that prospective juror’s strong feelings about the crime with which the defendant is charged constitutes specific cause for disqualification.

Pearson also held that where all of the state’s witnesses are members of law enforcement agencies and/or where the basis for a conviction is likely to be the testimony of members of law enforcement agencies, a trial court on request must ask during voir dire: “Have any of you been a member of a law enforcement agency?” A defendant is entitled to know whether a prospective juror has worked in the law enforcement field if all of the state’s witnesses and/or the witnesses whose testimony is reasonably likely to be the basis for a conviction are members of law enforcement.

Just as with the “strong feelings” question, the appeals court stressed that a juror is not automatically disqualified just because she responds affirmatively to the “member of the law enforcement agency” voir dire question. After the prospective juror is individually questioned by the attorneys or, upon request, by the trial court, the trial court determines whether or not the prospective juror’s having been a member of a law enforcement agency constitutes specific cause for disqualification. The court noted in Pearson that its holdings in that case shall apply prospectively as of February 21, 2004, the date Pearson was decided.

Trial lawyers in Maryland are eager for the Rules Committee of the Court of Appeals to adopt individual voir dire. Alas this wish is unlikely to come true. For more insight into voir dire, see Anatomy of a Trial: A Handbook for Young Lawyers, 2nd Edition (ABA, March 2014)

It was November 1, 1977 when the Maryland State Bar Association published the first edition of The Maryland Appellate Practice Handbook conceived and edited by yours truly. There are stories to tell about those days and how the book was then launched. But those stories are for another day. The book was a two-volume text featuring the nuts and bolts of appellate practice. The contributors, including the editor, shared ideas on every phase of the appellate process, from preserving the record to motions for reconsideration after appellate-court mandates.

Over the years numerous modifications helped keep the book current. Two significant and welcome changes were the advent of my friend and colleague at the Bar, Andrew D. Levy, as co-editor, and the emergence of the first volume edition of the book under its current title.

Recently Andy and I released the fourth edition of the book: Appellate Practice for the Maryland Lawyer, State and Federal (Sandler and Levy, Editors, MSBA, 2014). The first part of the book penetrates the inner workings of the Court of Appeals of Maryland, the Court of Special Appeals of Maryland, and the United States Court of Appeals for the Fourth Circuit. The inside scoops are revealed not by counsel but by prominent judges on the courts, including two chief judges. The chapters are then followed by chapters contributed by the clerks of the courts and by court mediators.

The second part of the book examines brief-writing and oral argument with chapter contributions from expert appellate counsel and the judges. The reader can brush up the current law and techniques in filing motions and petitions for certiorari. Unique issues in administrative appeals and criminal appeals are also featured, as are sample briefs and cert petitions.

Over 37 judges and lawyers wrote chapters in the new edition, including the editors. The editors hope to have contributed to the improvement of appellate practice and to the dialogue of what makes an outstanding appellate brief and oral argument.

The editors take no royalties for the book, but we do take your suggestions for improvements, which we can include in future supplements and the next edition.

I have always believed that persuasion is an art form and that trial lawyers who master it will find themselves on the winning end of many of the cases they bring to trial. Rhetoric is the art of selecting how to persuade others to your side. Therefore it too is an art form and, indeed, lawyers who master the art of rhetoric will be the most persuasive. In the second edition of my book,Anatomy of a Trial: A Handbook for Young Lawyers, which was released last month by the American Bar Association, I outline in detail the ways in which mastering the art of rhetoric can work to a lawyer’s advantage in the courtroom. Many of my examples and inclusions are new to this edition.

In Anatomy of a Trial, I use real-life, running commentary to show how to hone your persuasive approach to the audience you are trying to reach. For example, the persuasive technique you might use to get your significant other to agree to some bold purchase would likely not be the same as what you might use to ask your boss or the managing partner at your firm to spend company dollars on an equally bold purchase. For some audiences, an emotional appeal might be the most persuasive, as in, “Honey, how many times in our lives will we have an opportunity like this – let’s live it up!” On the other hand, with the boss, you would likely find that an emphasis on long-term cost cutting or business development would be far more persuasive rhetoric.

Similarly, the most persuasive rhetoric in a trial before a jury of 12 in Los Angeles might not be the most persuasive rhetoric for a trial before a jury of six in Kansas, or before a judge, with no jury, in Maryland. For this reason, in my second edition of Anatomy of a Trial, I include commentary and examples from three trials. Two of the trials were featured in the original edition of the book and the third is new to this edition. The first trial involves a high-profile criminal case featuring several famous names on the political scene; the second is a civil case involving a medical malpractice claim in Maryland. The trial added to the second edition of the book involves a non-jury civil case I tried in federal court in Maryland. I have included it to show how the rhetoric you might choose for a case tried before a judge will likely differ from the rhetoric you would use before a jury.

Shapiro Sher partner Matthew A.S. Esworthy has just been appointed Special Advisor to the American Bar Association Criminal Justice Section Council.

Mr. Esworthy also serves as co-chair of the ABA Section of Litigation’s Cybercrime Subcommittee of the Criminal Committee, co-chair of the ABA Criminal Justice Section Cyber Crime Committee, and as a member of the ABA Criminal Justice Section’s E-Discovery Task Force.

Shapiro Sher partners Matthew Esworthy and Eric Harlan write for the Chesapeake Human Resources Association about small businesses and cyber threats. Click here for the full article.