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.

A CROSS EXAMINATION SUGGESTION


We all have our own way of preparing for cross examination and for the style we adopt during the process. I thought I’d reprint a section of part of a cross examination preparation from a drug company products case to give you an general idea  of one of the steps I take in preparing for cross examination. This would represent part of a whole examination and would be part of the preparation. The actual cross examination could end up in outline form or it might be a stack of exhibits with tags containing ideas.

I’ve publishing it in it’s gross form before the additional editing and without explaining the significance of some of the outline as it’s simply an example to illustrate one way to prepare for cross examination. It would be reviewed and revised and finally end up in a brief outline format. This is how I start the process.

                                                   CROSS EXAM POINTS

COLLATERAL ATTACK

  1. lack of materials to base opinion upon
  2. how many hours to date
  3. number of times testified for plaintiffs vs
  4. total fees to date
  5. if a drug company ignores indications of risk and danger to children they would be wrong
  6. In the drug industry there are safety red lights or warnings aren’t there?
  7. wouldn’t you agree we have the right to trust pharmaceutical company to protect us from risk and danger?
  8. how much is hourly rate
  9. number of times testified for defendants
  10. relationship to: defense lawyers, experts etc.
  11. would you agree a drug company must hold the safety, health and welfare of the public paramount in selling their products

GENERAL POINTS

  1. FEES & RELATIONSHIP TO DEFENSE & ATTYS 
  2. TALKED TO ATTYS?? 
  3. PHARMACEUTICAL CO’S DUTY OF REASONABLE PRUDENCE 
  4. DUTY TO USE REASONABLE MEANS TO:

(1)       DISCOVER AND ELIMINATE PREVENTABLE RISK OF SEIZURE, BRAIN OR DEATH CAUSED BY SIDE EFFECT 

(2)       IF NOT PREVENTABLE, TO GIVE TIMELY & ADEQUATE WARNINGS 

(3)       TO ANALYZE, INVESTIGATE, AND TEST IT’S PRODUCTS 

(4)       TO STAY ABREAST OF MEDICAL RESEARCH, SCIENTIFIC KNOWLEDGE AND MEDICAL PUBLICATIONS ABOUT IT’S PRODUCTS 

  1. PHARMACEUTICAL CO’S DUTY TO WARN 
  2. ALWAYS WRONG TO DELIBERATELY WITHHOLD OR CONCEAL DANGERS BECAUSE OF FEAR OF HURTING SALES 
  3. COMPANY SHOULD: 

(1)       USE METHODS OF WARNING WHICH ARE EFFECTIVE 

(2)       USE WARNINGS WHICH SUFFICIENTLY INFORM GENERAL PRACTIONIER AS WELL AS SPECIALIST 

(3)       GIVE COMPLETE AND ACCURATE INFORMATION PROMPTLY 

(4)       GIVE WARNING ABOUT DANGEROUS ASPECTS OF IT’S PRODUCT EVEN AFTER IT HAS BEEN PUT ON THE MARKET

  1. DUTY ARISES WHENEVER REASONABLE PERSON USING PRODUCT WOULD WANT TO BE INFORMED OF RISK

 

(1)       DO YOU HAVE AN OPINION, BASED UPON REASONABLE PROBABILITY, WHETHER: 

(a)       THESE DEFENDANTS, KEY & SCHERING, UTILIZED METHODS OF WARNING PHYSICIANS LIKE DR. EDWARDS, WHICH WERE REASONABLY EFFECTIVE, TAKING INTO ACCOUNT, BOTH THE SERIOUSNESS OF THE DRUG’S SIDE EFFECTS, ADVERSE REACTIONS OR DANGERS AND THE DIFFICULTY INHERENT IN GIVING SUCH INFORMATION PHYSICIANS LIKE DR. EDWARDS WHO OUGHT TO BE SO INFOMRED? 

(b)       THESE DEFENDNATS GAVE TIMELY AND ADEQUATE WARNINGS TO THE MEDICAL PROFESSION OF THE DANGERS FROM THEIR PRODUCT THEO DUR? (Cirpo interaction, Saturation kinetics, Baldini rule re stat levels) 

(e)       THESE DEFENDANTS KNEW OR HAD REASON TO KNOW OF THESE DANGERS? 

  1. NATURE OF WARNINGS 
  2. WARNINGS: 

(1)       ARE A LAST RESORT – ELIMINATE DANGER IS FIRST STEP 

(2)       MUST COMMUNICATE SERIOUSNESS OF POTENTIAL HARM AND HOW TO AVOID IT 

(3)       SHOULD BE SUFFICIENTLY PROMINENT IN SIZE LOCATION AND OTHER FACTORS TO ASSURE IT WILL BE SEEN & READ 

Note: See boxed warnings from PDR for Schering products 

  1. PROMOTIONAL MATERIAL SHOULD INCLUDE DISCLOSURE AND WARNINGS RE SIDE EFFECTS, PRECAUTIONS & CONTRAINDICATIONS
  2.  
  3. COST vs RISK ANALYSIS
  4. Analyzing What is Reasonable 

(1)       SHOULD CONSIDER:

(a)       LIKELIHOOD OF INJURY HAPPENING 

(b)       SERIOUSNESS OF HARM IF IT DOES HAPPEN 

  1. Cost vs Benefit Analysis 

(1)       SHOULD CONSIDER: 

(a)       COST OF INFORMING OR WARNING

(b)       DIFFICULTY AND TIME INVOLVED IN INFORMING 

(c)       THE BENEFIT FROM GIVING THE WARNING 

 (d)      WHETHER METHOD OF INFORMING INVOLVES ACCEPTED PROCEDURE IN INDUSTRY 

Note: Dear Doctor letters common – Statgram used 

(e)       WHAT HARM CAUSED BY GIVING WARNING

  1. THE LIKELIHOOD OF THE HARM 
  2. THE SERIOUSNESS OF THE HARM COMPARED TO THE BENEFIT
  3. Analysis & Conclusion 

(1)       THE GREATER THE POTENTIAL HARM THE GREATER THE DUTY TO ACT

(a)       (Analogy) CYANIDE POISON PILLS IN SIX OUT OF HUNDREDS OF THOUSANDS OF BOTTLES OF SUDAFED 

(b)       IF ONLY ONE CHILD SAVED FROM SEIZURE, BRAIN INJURY OR DEATH IT’S WORTH THE TIME AND EXPENSE 

(2)       “OUNCE OF PREVENTION WORTH A POUND OF CURE” 

(3)       “BETTER TO BE SAFE THEN SORRY”

  1. DUTY TO ACT AND NOT CONCEAL
  2. PILOT OF 747 SEES FLASHING RED LIGHT: 

(1)       EXPECT HIM TO ACT IMMEDIATELY – NOT PUT TAPE OVER  LIGHT AND IGNORE?

(2)    RIGHT TO TRUST PHARMACEUTICAL COMPANIES 

  1. HAVE RIGHT TO EXPECT AND TRUST CO’S ACTING REASONABLY TO PROTECT PUBLIC FROM HARM 

(1)       PUBLIC DOESN’T INSPECT TIRES AND QUALIFICATIONS OF PILOT BEFORE FLYING – HAVE RIGHT TO TRUST PILOT & AIRPLANE COMPANY 

  1. FAULT CLAIMED 

SEE

 

  1. CLAIMS SHEET
  2. CLAIMS POSTER
  3. CONCEALMENT POSTER
  4. BOCCI TIME LINE POSTER
  5. ATTACK & DEFENSE SHEET
  6. DEPOSITION EXHIBITS
  7. POINTS:

(1)          SENT OUT 3 STATGRAMS WITHIN A WEEK AFTER PRIME TIME – NOT ONE DEAR DOCTOR LETTER

(2)          DIDN’T HAVE TO WAIT – NO FDA REQUIREMENT

(3)          PAST FACTS RE KEY MARKETING 

  1. CROSS EXAM NOTEBOOK TABS 
  2. Tab 1: DRUG MANUF. CODE OF FAIR PRACTICES
  3. Tab 2: SEE REVISED PDR RE “FOOD MAY INFLUENCE” SEE Tab 5 FOR AD – “NOT SIGNIFICANTLY AFFECTED BY”
  4. Tab 6: “LOT OF REASONS” – $35 MILLION Tab 10 memo
  5. Tab 8: FISONS
  6. Tab 9: 10/30/87 MEMO WITH ARTICLES
  7. Tab 12: NOTICE OF ADVERSE – SEE AD AFTER LETTER
  8. Tab 14: EX. 30
  9. Tab 15: McEWEN CASE
  10. Tab 16: ALLERGY ARTICLE
  11. Tab 19: FDA BURN OUT
  12. Tab 26: IF SEEING MORE THEN ONE DOCTOR
  13. Tab 27: NEW ENGLAND ARTICLE

PHYSCIAN QUESTION:

1.       IF A DRUG CO DISCOVERS IMPORTANT INFORMATION RELATING TO THE SAFETY RISKS OF A DRUG YOU ARE PRESCIBING TO PATIENTS A DO YOU EXPECT THEM TO NOTIFY YOU OF THE NEW DANGERS CLEARLY & PROMPTLY? WHY?

WU WEI & LESSONS FROM POLITICS

WE NEED WU WEI Wu wei pronounced “ooo-way” is the Chinese term for what we might call “effortless action.” Dr. Slingerland a professor of Asian studies at the University of British Columbia has written a book “Trying not to Try: The Art and Science of Spontaneity” which explores this ancient Chinese concept. The whole concept has very broad application, but my interest was in how it applies to us in trying lawsuits. We all would like to not be self-conscious and nervous, but rather natural as well as spontaneous

The Confucian approach to achieving wu wei uses willpower and rigid adherence to rules, traditions and rituals. The idea was that one would learn proper behavior so well that it became second nature and be spontaneous. The Taoists, on the other hand, rejected the effort with the Confucian approach which they thought was in conflict with the whole idea of not trying. They emphasized personal meditation instead of formal learning behavior. In addition, there are other variations of this idea among Zen Buddhist, Hindu and even Christian philosophers.

The aspect of wu wei I’m interested in is the idea that when we simply “go with the flow” we avoid analysis and overthinking which results in paralysis of thought and action. When we are acting in a spontaneous manner without conscious self-evaluation we are more attractive, impressive and charismatic. Think of it like the idea of an athlete being “in the zone.”

Dr. Slingerland argues that the best strategy involves a combination of approaches. Conscious effort is necessary to first learn a skill. Training one to follow certain actions for rules conserves energy for conscious performance. However, as the Taoists recognized, trying can become counterproductive. In a psychological experiment subjects were asked to hold the pendulum and not allow it to move. It demonstrated more effort that was put into trying to keep it to move caused it to move even more.

He suggests that we need to be able to transcend our training can relax completely into what we are doing for getting ourselves in the process. A fourth century BC Chinese philosopher recommended trying, but not too hard. The whole idea is well known in athletics. The basketball player who suddenly seems incapable of f missing a basket and so on.

In the book “Flow: The Psychology of Optimal Experience” the experience is described as being completely absorbed in an activity. During this ‘optimal experience’ they feel “strong, alert, in effortless control, unselfconscious, and at the peak of their abilities. Some of the characteristics that put one in this state of mind, after appropriate preparation, involve: (one) complete absorption in the activity (two) clear goals in mind for the activity in question (three) total concentration on the task at hand (four) a loss of self-consciousness and (five) a sense of active control over the situation. Trial lawyers should strive for the same state of mind through thorough preparation which produces confidence and total absorption in their job at the time.

Too often we are really thinking about what the judge, jurors or others are thinking about us and trying to impress others. We need wu wei in our professional work.

WHAT WE CAN LEARN FROM POLITICAL ADVISORS

David Garth has died at age 84. He was a pioneer in running political commercials to elect politicians. He was renowned for elevating virtual unknowns into upset victories and helping politicians turn around damaging information. Garth was the model for the media hustler in Robert Redford’s film “The Candidate.”

He was an innovator in having candidates use a video camera for training. He could sum up a campaign theme in two words. In one election his campaign slogan was “enough is enough.” A New York Mayor was facing election after failing to provide adequate snow removal equipment during the city’s biggest snowfall. The public was outraged.  Garth had the mayor admit it a TV ad even though it was at a time when candidates simply didn’t admit mistakes. His candidate, however, said on TV:  “I guessed wrong on the weather before the city’s biggest snowfall last winter, and that was a mistake. But, I put 6000 more cops in the street, and that was no mistake.” The candidate won.

Mr. Gore once explained the secret of his success was that: “I sometimes think our real strength  is in under producing, in stripping away all of the political clichés like blue shirts for TV.” In other words, in simplicity and honesty. Lessons for us all.