Category Archives: Jury

VOIR DIRE WHEN THE TIME IS LIMITED

I have taught at the Spence Trial College and written in this blog about the approach Gerry Spence advocates in jury selection. http://plaintifftriallawyertips.com/gerry-spence-voir-dire-questions  It can be roughly summarized as focused on building rapport through open, nonjudgmental discussion. It is not closed ended questions intended to dictate ideas. They focus on how the juror feels about subjects after he has first shared how he feels. Here is an example from Spence’s last civil case in Iowa:

Now let me ask you about this business of sympathy. Were all human, we want to be sympathetic. I have to start with me, and I’m going to say that I’m going to forget all sorts of things and I am as old as Methuselah and I ask for no sympathy for me. Nobody asked for sympathy for anybody here. I don’t want sympathy for my client because sympathy is cheap and I don’t want sympathy for all police officers either. All we want in this case is justice, that’s it. Justice. Are you all okay with that? Anybody have any problem with that? No sympathy. I would hate to go home and say “well they felt sorry for me so they gave me the $50,000,000 I was asking for.”  I want to hear from each of you. How do you feel, each of you by taking on this job as a juror?

One of the difficulties we have in using this voir dire approach is the imposition of time limitations most judges or court rules impose. Judges are increasingly inclined to believe the entire voir dire process is a waste of valuable time or even unnecessary. They commonly limit the time for jury selection irrespective of the skill of the lawyers conducting it or the issues in the case which make fixed time rules unfair. This makes the Spence approach difficult to use as intended. Where group voir dire is allowed the traditional approach has been to ask questions of the entire panel in light of time limitations. Here is an example of a group voir dire in a more traditional manner conducted by Joe Jamail in the Pennzoil company vs Texaco damage lawsuit:

  1. “Is there anyone who cannot accept that as evidence of whether Pennzoil and Getty thought they had a binding agreement on the 3rd of January?”
  2. “Now the evidence will show by at least one acceptable measure, by expert testimony we will present to you that Pennzoil was damaged in the amount of seven billion five hundred million dollars, a great deal of money. Now I know that is an astronomical amount of money, but if we are right and we prove our case by a preponderance of the evidence …is there anyone in the first row who has any reason to believe that because this is such a large amount of money that regardless of the loos and the proof that you would not be able to assess this kind of money damages…?”

It has become a challenge for us to find ways develop a rapport, identify the values and beliefs of the jury panel while also obtaining relevant demographic information with the unreasonable time limitations commonly imposed. Here are some thoughts to consider. To start with, do not try to avoid time restraints by talking fast. You need to speak at a slow pace with pauses or the impression is the weatherperson who has only few seconds to tell viewers all the information. You don’t develop relationships nor engender leadership qualities by talking fast. Consider a combination of styles. You can select a few primary subjects and use the Spence approach. That could well include some case problem issues and significant legal issues like sympathy. You could combine that with questions addressed to the panel with raising hands as a response. In addition, you could select specific people to ask a question and then ask how many agree or disagree. While I am not a fan of written questions to the panel that could be helpful in particular cases. Here are some general questions which can and probably should be asked:

  1. If you were John, sitting here, would you be comfortable having you as a juror in this case? Why? (It’s a way for the juror to mentally put himself or herself in your clients shoes even if momentarily)
  2. Is there anything you haven’t been asked that you think it might be better if we knew? (Be wary of the non talkers and often people don’t volunteer information they should)
  3. Can you think of anything  in your own life that somehow reminds you about what happened in this case? (It’s very important to find out about past significant life experiences the juror somehow relates to this case as they often dictate the decision)
  4. What are some of the most important values we should teach children? (Beliefs and values control our decisions irrespective of the evidence)

In addition, consider the importance of framing. Neural Linquestic Programing (NLP) has helpful information about words and phrases that have particular impact. The well-known book Words that Work by Frank Luntz identifies words that phrases that have emotional impact. Marketing experts are fully aware of the significance of words and phrases in advertising. We should consider being deliberate about using these words in our voir dire.

Here are some examples. Eliciting an image in the mind of the juror that favors your position produces subconscious results. The italicized portion are the words of art in this regard. They require one to pause in one’s mind and search which has a direct connection to the unconscious and can plant a seed of thought.

  1. I’d like to get your reaction. I’d like to get your reaction. Suppose after hearing all the evidence your verdict is for John. Could you see yourself feeling really good about doing the right thing?
  2. What’s it like when What’s it like when you have an opportunity to do something important for not just a client in a case like this, but for you, your family and the community?
  3. How would you feel How would you feel if you decided $10 million dollars was a fair and reasonable verdict under the law and evidence?
  4. If I were to ask you what is important about If I were to ask you what is important about eliminating a defective product from causing death or injury, what would you say?
  5. Imagine (One of the most emotionally powerful words we can use) Imagine you are on a jury that accomplished a very important principle that benefited a lot of people. How would that make you feel?

Learning to learn how to deal with a juror’s adverse response is important. Arguing is a mistake, but more important, takes valuable time you doing have. Letting the person fully express without interruption is essential. Here is a way to respond. I fully agree and I would add. I fully agree there are too many frivolous lawsuits and I would add that it reflects on genuine, valid cases like this one.

Another technique involving a negative response or believe uses a “parts” approach: I know there is a part of you that objects to people filing lawsuits like this. But there is probably another part of you that is in favor of justice for those who deserve it, am I right?

There are what are known as “trance words” which salespeople and advertisers know have a subconscious impact on the listener. These include imagine, visualize, remember and wondering. For example, “I am wondering how you would feel about having the courage to do what is necessary to right a wrong.” These are just a few thoughts about this important subject.

The most significant step is recognizing and planning for limited time after filing a motion for additional time. This means outlining the problem areas  in your case, the significant legal points and having a story line you advance  through questioning. A one page outline with notes should  allow  you to maintain eye contact while keeping yourself aware of time limitations. Plan ahead and use the right framing for the right issues. to discuss.

JURY SELECTION CONCEPTS.

My friend Eric Fong is scheduled to start a major damage jury case in Seattle and we discussed jury selection ideas. That made me think I should post something in general about this subject.

PRACTICAL SUGGESTIONS

  • Have one sheet of paper with topics you want to cover – simple topics headings with large enough type you can glance at  it and read it. Organize the topics by order of importance.  
  • Let someone else take notes. Maintain eye contact with the juror  whenever  the  juror is talking.  
  • Remember to smile. When we are nervous we often look very serious and intent. Be friendly and kind. 

IDEAS ABOUT JURY SELECTION

  • It is a conversation and not an interrogation. Get them talking. You talk should be talking about 20% of the time and they should be talking 80% or more 
  • Do not be a lawyer and argue with them. You are there to listen. Let them say whatever they want even if they are attacking  you and your case. Give the right to their opinions and be non-judgmental. Project credibility by acceptance of their right  to their opinions. “I can understand that. I  suspect there are other people who  agree with you. Who else agrees with juror Smith?  Why Who has a different view point?Why?” 
  • Your goal is not to convince them to your position or to persuade them by argument or logic your are right. What you are  there for is to find out their significant value system and important life experiences through allowing them to be honest and conversational. Get them talking and then ask what the others think to keep it moving. 

GENERAL OBSERVATIONS

Important ideas for conservatives include the following ideas  and each  of them you can and should agree with as well as showing them how they support your case and not the defendants.

(1)        Duty owed must be observed

(2)        We are responsible for our actions and should be accountable for them

(3)        The law should be enforced

(4)        We must obey the law whether we agree or not

(5)        Reject pleas based upon sympathy – justice, what is right, counts

(6)        Family values and the family unit are important

(7)        People should be held accountable for what they do

GENERAL JUROR PROFILES

The following are characteristics of importance, but  they are broad simplistic generalizations which can’t be  followed as  a iron clad rule of selection. 

(1)        Leaders – always dangerous. Generally want to avoid as they take over jury. Avoid people with law connection as jurors will look to them for advice.

(2)        Authoritarians – people who are deferential to authority will favor doctors, police etc.

(3)        People with an axe to grind on any subject are dangerous

(4)        Neutrals – do not carry any weight  in absence of some other negative factor.

(5)        Followers are influenced by the group dynamics and the leaders on the  jury. Usually they are conservative.

IMPORTANT FACTS ABOUT JURORS

Keep in mind these facts during jury selection:

(1)        Once people have taken a firm public stand they are unlikely to change. That means if you get jurors to commit in front of the other jurors to matters they are very likely to stick to that position. This is important in trying to disqualify a juror (“not a case you feel you should decide” or “follow the law even if disagree”)

(2)        People search for the rules to guide them in deciding case. What are the rules we are supposed to follow?

(3)        Significant past experiences will guide their feelings and opinions now.

(4)        Strongly held beliefs and values will trump everything

SUBJECTS TO COVER ON VOIR DIRE 

  1. Discuss the key points in your case. Arrange issues by priority of importance. Cover only the most important issues.
  2. Search for juror strongly held values, opinions and beliefs
  3. Search for any significant life experiences that could impact case
  4. Ask general significant demographic questions, but don’t waste your time here

POINTS TO DISCUSS IN VOIR DIRE

  1. Preponderance only means more probably true then not (see David Ball)
  2. We are not after sympathy, but need to show facts to evaluate
  3. Must follow law agree or not
  4. Community interest in case
  5. Damages 

DISCUSSION PHRASES

Discussion phrases include the following: (See David Ball  Damages  3  for  ideas) 

  • There are two areas I’d like to discuss with you: (1) your important life experiences that might help you decide this case and (2) your opinions about issues in the case 
  • Some people believe….(all doctors are right all the time) while others believe…..(doctors are human and can make mistakes)….Which way do you lean if only a little? 
  • Tell us more about that 
  • Use “looping questions”  – when you get an answer from a juror use that answer in the question to another juror: 
  • Mrs Smith says there are too many lawsuits against doctors, what do you think? 
  • How do you feel about what juror Smith just said that it is important to pass knowledge on? 
  • Let me tell you why I am very glad you said what you did: It takes courage to say that in front of people. Who else on the jury feels the same way?

 

  • Some people are uncomfortable about making decisions on a jury that might have an effect on the community. Others are OK with it. Which are you closer to

 

  • Some people feel it is a good thing for jury verdicts have an effect on the community. Others disagree. Which are you closer to

 

  • Who here would have a problem hearing both sides and deciding which rules you want in this community 
  • Some jurors feel the jury is the guardian of the community. Others are uncomfortable with that idea. Which are you closer to

 

WHY DON’T WE GET RID OF “DUMBASSED JURORS”?

I received this Email from someone whose address was: bob bdifalco@yahoo.com about my post regarding jury selection. He said:

“Lawyers ought to spend their time getting rid of all juries, and hyping up judges so are adequate without dumbassd jurors.”

JUDGE< When the constitution of this country was being debated jury trial was seen as an essential and far reaching civil right. The men who signed the Declaration of Independence and wrote the Constitution provided for three separate provisions in the U.S. Constitution to guarantee the right of jury trial. Article III, Sec 2 provides for trial of jury in the state where the crime was committed. The Sixth Amendment guarantees the right to a speedy and public jury trial. The Seventh Amendment of the Bill of Rights guarantees jury trials in civil cases. The right to jury trial in civil cases was specifically and deliberately added to our Bill of Rights as an essential right of all Americans.
There is a reason for the founding father’s concern about the right of jury trial. From the time of the Norman Conquest the issue of the right the ordinary citizen to trial by one’s peers rather than a judge was a huge issue. The founding fathers knew the history of England. They knew one of the key concessions to the people was the Magna Charta of 1215 conceding the right to a jury trial of one’s peers. They knew the history of the English Star Chamber secret trials by judges and its abolition as a grant of right in 1641.

Alexander Hamilton said: The civil jury is a valuable safeguard to liberty.” Thomas Jefferson in a letter to Thomas Paine wrote:
“I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

That’s why Jury trials were seen as such an essential protected right that it was put in the United States Constitution in the Fifth, Sixth, and Seventh Amendments of the US Constitution. When we are dealing with historical rights and constitutional rights of this magnitude which have been included in the Bill of Rights, one should be slow to arbitrarily decide to just eliminate them because of complaints about jury verdicts.