DEALING WITH COMMONLY HELD JUROR BIAS IN JURY SELECTION
People and jurors have commonly held beliefs that are in conflict with our issues in our cases. After decades of the national Chamber of Commerce, big business and insurance industry propaganda against tort litigation and plaintiff trial attorneys, we can assume that all jurors have been tainted to one extent or another with anti tort bias. Given the political fighting over immigration, we can assume that representing an immigrant, especially an undocumented one, has issues as does representing Muslims. Then there is inherent racial and minority bias we all have to one degree or another. Auto drivers are likely going to have adverse feelings about motorcycle and bicycle injury cases. There are numerous other stereotyping biases. The challenge of this kind of prejudice is that the person who has the bias may either deny having such a bias or underestimate the degree of the latent bias or firmly believe they can intellectually isolate any such bias and “be fair.”
When representing a plaintiff with issues that will likely trigger inherent bias the question becomes how to deal with it in jury selection. Different trial lawyers have various ways of handling this. I’d like to share my approach using a plaintiff injured in a car motorcycle collision as my example. I suppose I should point out that my approach was always to be totally candid in acknowledging any issue in a trial. However, over the years I spent time with Gerry Spence including my years of teaching at the Trial College. and we had lots of discussions about trial and I was exposed to his style in our teaching together. After awhile what you have learned to do by your own experience and what you have absorbed from long exposure to other lawyers like Gerry totally blur. As a result probably most of this is not original with me but borrowed from others.
To start with, in my view, looking for assurances from jurors, through closed ended questioning, that they can be fair regarding bias is a waste of valuable voir dire time. Many people don’t think they have a bias, when they do, at least at a subconscious level and because they don’t want to admit it or give assurances about it they can’t possibly keep. It is likewise a waste of time to plan on establishing the bias of prospective jurors and challenging them for cause to legally excuse them from serving. Too many people will deny the bias or insist they can set it aside or deliberately conceal it or because they are intimidated from revealing they have a bias. In addition, judges are often reluctant to sustain the challenge and instead step in to rehabilitate the juror. In most states you don’t have enough preemptory excuses to accomplish it either.
I believe the only realistic way to deal with this kind of inherent bias is a several step process. You first acknowledge the existence of the bias in yourself when the case was first offered to you. By admitting to the bias you thereby become part of the group of others in the jury pool who feel the same way. The second step is to open non judgmental, full and open discussion about the issue to demonstrate your willingness to have free discussion and at the same time to identify those who feel this way. Next, using suggestions of extreme positions, you stimulate a discussion about how it should be dealt with in trial. This results in the jurors discussing the need for a fair trial and making your arguments plus creating a public commitment by jurors to be fair. This also encourages the jurors who simply can’t overcome their negative attitudes to be honest about it and excuse themselves.
The process I follow is that the lawyer begins, before ever asking any juror about the subject, by telling them you want to talk about the “elephant in the room” by acknowledging that as the lawyer for this injured motorcycle driver you are embarrassed to admit your reluctance, when the case was first offered, to accept representation because of having a negative attitude towards people who ride motorcycles. As an auto driver you had the idea riding motorcycles is a risky activity normal people should avoid. Over the time you have represented (name of client), however, you gained an appreciation for his or her love of motorcycles and your admiration of this fine person. But, since you had this initial reaction to a motorcycle injury case, you wonder if others have the same initial reaction you had? Ask for hands of those jurors who are willing to share with you the same feelings you have. It is critical you have the courage to stand and wait for hands to go up. Be willing to say nothing, keep eye contact and not move until a hand goes up you will eventually get hands going up and which will happen easier if you hold your own hand up.
When there is a public acknowledgment of the same feelings you have, you have become a member of the group who feel the same way. You all are together in this attitude and that makes you a member of their “tribe” or group. You aren’t an outsider lawyer accusing them of bias.
Thank them for having the courage to raise their hands. The next step is to have an open discussion about why “we” feel this way. Note that it is not “I” and “you.” It is “we” because you are a member of their group or tribe. In the discussion there is no arguing with jurors no matter how extreme their position on the subject. To a response “anyone who rides on a motorcycle deserves what happens to them” you should say something like: “I understand how you feel. Sure, you think it’s nuts to ride a motorcycle – right? Thanks for being honest about it. I’ll bet other people agree with you. Who agrees?” No attempts to educate them or suggest other views or in any way contradict them or look angry or shocked. You should have an open posture (not crossed arms) and no frowning or non verbal objections. Instead, you nod your head to show you understand and heard them. You maintain constant eye contact and pause before turning to any other jurors to show “I heard you. I understand. I’m willing to listen to whatever you want to say.”
The last step is create a discussion about how they think the issue should be dealt with in trial. The discussion is what to do about all of “us” feeling this way and yet there is a right to a jury trial by the injured motorcyclist. This “what are we going to do about this” discussion begins with suggestions of extreme remedies because you want to stimulate an opposite response and to encourage other jurors from taking up your client’s cause and making the arguments you would like to make.
For example, starting with questions like these: “What should we do about this? Do we just make a rule that motorcycle injuries due to negligence of others aren’t entitled to a trial? Or maybe decide that motorcycle injuries are only entitled to half justice? What suggestions do you have about this since we are going to take an oath to do full justice if we are selected to be on the jury.” This leads to a discussion where jurors acknowledge the plaintiff’s right to a fair jury trial and public assurances by jurors they can be fair. This creates a public commitment. We are motivated to be consistent with what we say publicly and carries into the jury room during deliberation plus allows other jurors to remind people about this discussion. It also allows you to remind them about it in final summation.
This approach always was a comfortable one for me in jury selection because I dealt with the truth in open discussion and without trying to change minds or educate or make jury arguments. The approach demonstrates honesty, being trustworthy and a genuine person instead of a lawyer trying to sell something. You may have a better way of handling it because it has to feel right to you.