Category Archives: Jury Selection

In a case we recently settled the plaintiff was working in an overhead bucket when he contacted a power line and was seriously injured. Here is the outline I was working on for jury selection. It will give you an idea of the general subjects I like to cover. In this case I intended to concede our client had been distracted and had some responsibility, but under Washington’s pure comparative negligence law the jury must compare that to the knowledge, experience and expert advice the power company had along with the fact they owed the highest degree of care whereas our client owed only ordinary care. The company was fully aware of the work going on around the lines and did nothing to protect against injury or move the line as had been  requested. This is an outline only. The material would have been famed as open ended questions

COMPARATIVE NEGLIGENCE

• One of your jobs is to determine if power company  and Mark were negligent
• If you find both negligent then to determine percentage each at fault
• If both negligent that doesn’t mean Mark loses case, but damages reduced

Q. Some people think this law unfair others believe must follow the law, which way do you lean if only just a little

• Concede mark made a mistake on this one day

BURDEN OF PROOF

• This kind of case: must decide on more probably true then not true
• True whether talking about negligence or damages
• You can have doubts, but if more probably true then not all that’s required
• Expect to prove more than just tipping scales but that’s all that’s required

Q. Some people think this law unfair others believe must follow the law, which way do you lean if only just a little

FOLLOW THE LAW

• You will take an oath to follow the law.

Q. Some people believe that that do not have to follow a law they disagree with and others feel they must follow the law. Which way do you lean if only a little?

DAMAGES

• Why we have to talk about harm done:
• Trial all about harm and damages
• Jurors job to fix, help and make up for
• Sympathy not involved
• Decide money verdict based solely on the harm done and nothing else
• That’s the law

Q. Some people find that difficult but others feel must follow the law….

TORT REFORM

• SOME PEOPLE THINK THERE SHOULD BE A LIMIT ON HOW MUCH MONEY A JURY SHOULD BE ALLOWED TO GIVE. DO YOU FEEL THAT WAY? WHY? TELL ME MORE?
• WHAT KIND OF AMOUNTS HAVE YOU HEARD ABOUT YOU THINK ARE TOO MUCH?
• What damage verdicts do you think are excessive
• How do you feel about lawsuits for damages like this one
• If you were seriously injured due to the negligence of another would you sue? Explain

VALUES & LIFE EXPERIENCE

• What values you would like to instill in children?  Why important
• What values or beliefs do you have that might affect your consideration of this kind of case?
• What life experiences have you had that might assist you in deciding a case like this
• Is there anything in your life experiences that would bear on a case like this?

COMMUNITY STANDARDS

• 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 people feel that in a case like this the jury is the guardian of community safety others don’t feel that way. Which way…
• Would you feel uncomfortable with the jury setting community standards of safety
• Why would the community have an interest in a case like this

PSYCHOLOGICAL

• What person do you admire the most

POINTS

• Important case:
• Sets standards for power companies
• May be media interest
• Mark and wife not present every day

CONCLUSION

• Is there anything we haven’t talked about that you think we should know about your being a juror in this case?
• Anyone who thinks it might be difficult for you to serve as a juror in a case like this one
• You understand I have an obligation to suggest how to arrive at your verdict.

Here are a few ideas about jury selection for you to consider. Perhaps something here will be helpful to you.

PRACTICAL SUGGESTIONS

• After the court has questioned and excused jurors, figure out how many of the panel you should concentrate on. Do that by counting.  Count them by including the basic twelve jurors, the number of alternates allowed, then add the number of excuses allowed by the court to all sides, add an arbitrary number for possible excuses for cause and that’s your basic group. Ignore the rest of the panel, until the count changes by additional excused jurors
•  Have one sheet of paper with topics you want to cover – simple topics
•  Let someone else take notes. Maintain eye contact
•  Remember: smile 

IDEAS ABOUT JURY SELECTION

• It is a conversation and not an interrogation. Get them talking. You 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 and you must be non-judgmental. Project credibility by acceptance of whatever they say.
• Your goal is not to convince or to persuade. You want to know values and significant life experiences which you can only find out by getting them to talk among themselves. Pick one juror and then ask what the others think to keep it moving.

GENERAL OBSERVATIONS

 Important ideas for conservatives include the following: 

(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: 

(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

(4)        Neutrals – in absence of some other negative factor good jurors

(5)        Followers usually can be disregarded but can be 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 out loud to matters they are very likely to stick to that position. This is important in trying to disqualify a juror. 

(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 with a lot of talk about this topic

POINTS TO COVER ON VOIR DIRE 

1. reponderance 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. Damage issues 

DISCUSSION PHRASES

• discussion phrases include the following: (See David Ball)

1.  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
2.  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?
3. 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:

(1) Mrs Smith says there are too many lawsuits against doctors, what do you think?

(2) How do you feel about what juror Smith just said that it is important to pass knowledge on?

(3)  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?

(4)  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

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

(6) Who here would have a problem hearing both sides and deciding which rules you want in this community

(7) Some jurors feel the jury is the guardian of the community. Others are uncomfortable with that idea. Which are you closer to

One of the websites I faithfully read is The Jury Expert http://www.astcweb.org/public/publication/. The articles are accurate and generally are consistent with my ideas regarding communication and trial. One of the more recent articles was by Charlotte A. Morris entitled "It’s Deja Vu All Over Again: More Thoughts aon Doing Effective Voir Dire."

Her suggestedquestions on tort reform included some of the following:

Q. When does it make sense to Sue? When does it not? What makes you feel that way?
Q. How do you know when it is a legitimate lawsuit?
Q. Which lawsuits are frivolous? Why?
Q. What’s your reaction to what you have heard thus far?

Regarding employment facts, she suggested some of these questions:

Q. What do you like most about your work? Why? What do you like least? Why?
Q. When you were a child, what did you want to do when you grew up?
Q. What led you to this work?

As to off work activities she suggested some of these:

Q. What do you do in your spare time?
Q. When it comes to family matters, what are the things that concern you the most?

Regarding quality of life, she suggests some of these questions:

Q.Have you heard the phrase "quality of life"?
Q. What does it mean to you?
Q. What top things contribute to your qualifity of life?
Q. Have you had an experience when you were unable to do the things that give you quality of life and you came to realize how important they were to you? Tell us about that.

Regarding surgery she recommended some of these ideas:

Q.Have you had experience with surgery?
Q. How did it turn out?
Q Were you satisfied with the outcome?
Q. Have you or someone close to you refused to have surgery a doctor has recommended? Tell us about it.

I particularly liked her ideas for open ended and follow up questions like these:

Raise your hand if you or someone close to you has….

On a scale of 1 – 10 tell me….

Tell me about your experience with….

What have you read or heard about…

How did things turn out?

Were you satisfied with the outcome?

If you had it to do over again, what, if anything, would you do differently?

What did that experience teach you?

I think there are some very helpful ideas and suggestions in the article and it is well worth reading in my judgmenjt.