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Jury Selection in Personal Injury Litigation:
Connecting With Today's Jury Pool Using Effective Juror Profiling and Voir Dire to Pick the Best Jury
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Thursday, February 26, 2015
Presenting a live 90-minute webinar with interactive Q&A
Anthony D. Castelli, Attorney, Law Offices of Anthony D. Castelli, Cincinnati
Jaine Fraser, Ph.D., Trial Psychology Institute, Dallas
Christian Myer, Partner, Dolman Law Group, Clearwater, Fla.
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Connecting with Today’s Jury Pool
Tony Castelli, ESQ. [email protected]
Jaine Fraser, Ph. D. [email protected]
Christian Myer, ESQ. [email protected]
Attorney Christian Myer
7
Time Constraints
Tough Cause Questions
Identify Leaders
8
Recognizing Today’s Society
Checking Social Media Before
Checking Social Media During/After
General Attitude
9
Jury Selection in Personal Injury Litigation:
Connecting With Today's Jury Pool
Effective Questioning and Determining Bias
Jaine E. Fraser, Ph.D.
You can’t change a
juror’s strongly
held beliefs
• You have a two part
mission
11
Make it easy for
jurors to give you
“negative” answers
• Don’t bring your clients
to jury selection
• Don’t say anything
good about your case
• Talk about thoughts,
feelings, and opinions
in any case, not this
case 12
Stairstep your
questions to get the
most information
• Personal injury
lawsuits
• Lawsuits in general
• Medical malpractice
lawsuits
13
Scaled questions give valuable
insights
14
Scaled questions
give valuable
insights
• Always use an even
number of responses
• Have questions
written out ahead of
time
• Only ask questions that
expose bad jurors
Strongly agree
Agree
Disagree
Strongly disagree
When I hear about a
personal injury lawsuit, I am
suspicious.
–There should be laws -
There should be laws
making it more difficult to
file personal injury lawsuits.
People are too quick to
sue, claiming they have
been injured.
15
Address your problems head on
16
Address your
problems head on
• Mom smoked during
pregnancy
17 17
In a case where a mother smoked during
pregnancy, I would find the mother primarily at
fault if the child suffered birth injuries.
Strongly agree
Agree
Disagree
Strongly disagree
18
Address your
problems head on
• Mom smoked during
pregnancy
• Mom was overweight
19
If a woman is 100 pounds overweight and her
child suffers brain damage during labor and
delivery, I would attribute a significant amount of
the blame to the mother.
Strongly agree
Agree
Disagree
Strongly disagree
20
Address your
problems head on
• Mom smoked during
pregnancy
• Mom was overweight
• Imperfect prenatal
care
21
If a pregnant woman misses two of her last four
doctor appointments, I would find her primarily at
fault if the child suffered birth injuries.
Strongly agree
Agree
Disagree
Strongly disagree
22
Don’t let these people on your jury
• Medical professionals (except nurse aids or home
health providers) – this
includes people who work in
doctor’s office
• General contractors
• Engineers
• Accountants
• Real estate agents
• Law enforcement
• Business owners
• Insurance workers
• Scientists, except physics
• Architects
• First line supervisors
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…and be careful about these folks
• People with high school
educations who have
worked at the same
place for 20+ years
• Defendants in lawsuits
• Prior presiding jurors
• Court personnel
• Human resource
workers
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www.trialshrink.com
25
The subject of tainted jury pools generally come up most often in criminal cases for the reason that those are generally high-profile cases that have gotten a lot of publicity. When there is a criminal case where there has been particularly egregious facts which has garnered much publicity, whether local or nationwide, most of the jurors will have heard of the case and many will have formed some type of opinion as to guilt.
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Take for example the case of Eddie Ray Ralph who is accused of killing Chris Kyle, the American Sniper. Kyle is widely acknowledged as the most lethal sniper in US Military history, having racked up 160 confirmed kills. As the story goes, Chris Kyle and a buddy had taken Eddie Ray Ralph, to a Texas shooting range. Kyle took Ralph to the shooting range to provide support and camaraderie and to help Ralph’s Post-Traumatic Stress Disorder.
The movie of course paints Kyle as a tremendous hero. This, separate and apart from the extensive publicity given to the shooting, obviously would have many people believe that Chris Kyle was an American Hero and even more, an emotional vileness would be in their minds, towards someone who killed Kyle.
28
The best way to get away from a tainted jury pool is to ask for a change of venue. The place where the incident occurred is certainly likely to have the most publicity and for its local citizens to have the most “knowledge about what they think happened in the case.” However, a spectator of the movie is a nationwide phenomenon, although not specifically dealing with the case at hand, but with the victim in such a high level, heroic manner that the positive feelings for the hero may drown out the ability to listen to an insanity defense of the defendant.
29
Hidden bias also can taint a jury pool. In other words, we are all familiar with the jurors stating they can be fair and impartial on a superficial basis. Deep down we know that a juror with a police officer who loves his brother, is going to be more partial towards police testimony than someone who has had a negative experience with the police. Although not an example of a complete taint of a jury pool, it is an isolated example of a tainted juror. These isolated examples are more common than the tainted jury pools as a whole. In a widespread jury taint issue, because of publicity, a change of venue can be requested. Also ask the Court for extra pre-emptory challenges. Additionally, tailored questionnaires given to the jury pool in advance with specific questions from the attorneys, can also be a useful technique.
30
Recall the case of Kenneth Lay of the Enron Corporation. The trial setting was in Houston, Texas and Lay faced 7 counts of fraud, conspiring to fool investors into believing that Enron was healthy before the company crashed.
400 potential jurors completed questionnaires in the first step of jury selection. Jurors presented opinions in those questionnaires such that Lay was guilty criminally and morally, guilty personally and was in fact, a devil and a high-class crook. From those questionnaires, the 400 potential jurors were wittled down to 164.
31
Another tactic is to request to question jurors individually, based on their questionnaires because of the individual questions they answered. This is not often granted.
In particularly restrictive jurisdictions, as the Federal jurisdiction, jury selection is difficult. This is why in a Federal case, significant time and effort must be made towards convincing the trial judge that the limited voire dire offered will cause an unfair trial for the defendant.
32
Civil Taint
The biggest taint in a civil case that involves personal injury, is the area of tort reform. In my opinion, this comes down to the McDonalds case. We all recall the case where the lady had coffee spilled on her and the gigantic verdict ensued against McDonalds. There was much made of this by the news media and the Chamber of Commerce to twist this case into a run-away jury for something that we all know happens. That is, people get burned with hot coffee. There were multiple other factors in the case and on the whole, these facts have not come out sufficiently. I point to that case in and of itself and the broo-ha-ha made afterwards as to why civil verdicts have become harder and harder.
34
You can get most of the jury to raise their hand and agree that Plaintiffs are:
1. receiving lottery-type damages awards;
2. there are too many frivolous lawsuits;
3. juries are getting way out of hand;
4. it’s time for people to stop these high verdicts; and
5. there are too many lawyers.
35
This taint is simply an individual of bias. The bias is obviously closely tied to the issue of jury award amounts. Thus, many jurors automatically oppose the issue of large damage awards for the plaintiff. And, in fact, many jurors feel sorry for the defendant, in terms of a large monetary award. For example, I have had a juror state, “I certainly don’t want to award too large of an award and have this poor lady defendant lose her house.” Obviously, the juror is not told that there is insurance.
36
Sympathy for the Defendant Taint
The question then becomes – how do you weed out this juror? That is, the sympathetic juror to the defendant– the juror that wants to know what insurance is involved. Since you can’t directly discuss insurance, the typical question is: whether or not any jurors work for a liability insurance company – hint, hint, hint – However, this is not sufficient in of itself. The best question I have ever come up with is to ask, “are you concerned about the source of the payment of the plaintiff’s damages before you would award an amount of money damages?” This will ultimately elicit it from the juror’s own mouth - that they want to know about insurance. At that point, you look to the Judge longingly and the Judge will tell them that no evidence will be submitted on that topic. At least, you will be able to find out if a juror needs to have that information prior to rendering a fair award. If they say that they do need that information, they should be challenged for cause and you should not have to use one of your preemptory challenges.
38
Jurors Infecting Other Jurors
A big concern for lawyers is that if you get jurors talking about this, one juror’s negative feelings will infect the other jurors; therefore, they constrict conversations with jurors.
But do get jurors to discuss feelings of opinions completely and fully. Once you ask one juror about this, ask the other jurors how they feel about whether they would need to know the source of payment before they could impose a high award.
40
Get to Know the Juror’s Core Beliefs
It is important to find the beliefs that the jurors value. For example, if the question of contributory negligence on a plaintiff comes up because of drinking a small amount, this needs to be addressed in voire dire. The simple question about “what are your feelings about driving after just one drink?” will elicit what you need to know.
42
Taint of Tort Reform and the Opinions &
Values that Back it Up
Never try to argue with the jurors about the McDonalds case, is my firm advice. I have heard of many lawyers trying to discuss the McDonalds case with jurors. The jurors would like to hear more facts about the case and end up trying to convince the jurors that the McDonalds case was rightly decided.
This is a big waste of time and furthermore, I don’t believe you are going to change a jury’s values or opinions based on sides of the McDonald’s case.
44
Use the McDonalds case to your advantage. Ask the question about “how many of you feel there are too many large verdicts that are unjustified?
For instance, ask “how many of you have heard of the McDonalds case?” Many people think it was quite unreasonable to award a gigantic verdict because someone spilled hot coffee, something that we all understand can happen. I would be first to agree with you that there are frivolous law suits and unjustified verdicts, but this case is not like those cases.”
45
I have seen a jury consultant take another tact about the McDonalds case. They, in fact, would discuss it. There is also a secondary form of questioning that is more in the line with my theory. Here are 2 situations:
46
Complete Discussion of the McDonald Case & Trying to
Change the Jurors’ Minds
Attorney: What are your feelings regarding jury verdicts? Juror: Well, I know there are a lot of people out there who will sue, then get paid off royally and all for the stupidest things. Attorney: Can you give us an example? Juror: I guess that McDonalds case would be the best one. Suing because some hot coffee spilled on yourself in your car – ridiculous! Attorney: Do you think that is all there was to it? Juror: As far as I recall – yes. Attorney: Sir, did you know that prior to this case, there had been hundreds of complaints against McDonalds because of its scalding hot coffee? Juror: No, I did not know that.
48
Attorney: Did you know that in this particular case the woman was severely burned by hot coffee? Juror: No Attorney: Or that she was not driving her car when she was scalded, but instead was sitting stationary in the McDonalds drive-thru simply trying to add some sugar to her coffee? Juror: No, that’s news to me, as well. Attorney: Since McDonalds has received so many complaints about scalding hot coffee, do you think they should have made some adjustment to the temperature of coffee served to people who then have to balance it in their cars? Juror: Yes, that would make some sense.
49
Attorney: Where did you learn about the McDonalds case?
Juror: Newspapers, TV, that sort of thing.
Attorney: Do you suppose, that because McDonalds is a major national advertiser, that some of the details we have been discussing here might not have been fully reported.
Juror: That’s possible, I’m sure.
Attorney: Do you feel that the way you did a few moments ago, concerning the McDonalds case and the subject of damage awards in general?
Juror: No, I think I would prefer to look closer at the particulars of each case.
Attorney: Thank you Sir.
50
While I really do not think that is the way to go and the last question, in terms of changing the juror’s mind, is highly suspect. The other way to go as previously mentioned, is how I would approach this subject matter.
51
Attorney: We all agree that there are some frivolous law suits that have occurred and that some outrageous verdicts have ensued such as the McDonalds case.
Juror: They raise their hand or nod Yes
Attorney: Considering the information that has been presented thus far about this case, is there anything that would lead you to believe that this case will be like the McDonalds case.
Juror: No, it sounds pretty different.
Attorney: So this case should be judged on its own merits, that is, independent of any other cases and verdicts that you may have heard about?
Juror: Sure.
52
Another method to “de-taint” the jury is of course to get rid of any jurors that are biased against the Plaintiff and large jury awards.
I think it’s important to address with the jury upfront in voir dire the amount of money that you are asking. This way, you can find if a juror would be hesitant/unwilling to award a large amount.
Attorney: In this case, you really haven’t heard any evidence yet, but one thing that I want you to know is that we are going to be asking for $225,000.00 in damages for this case. Does the mere fact of the amount of damages requested, cause you to shy away from awarding that amount of damages, if the evidence and the law supported such a verdict? In other words, is that just too much money, no matter the severity of a shoulder injury in your opinion?
53
Another example given by consultant Amy Singers is to ferret out juror hesitation to award large damages:
Attorney: What are your feelings about jury awards? Are they way out of line?
Juror: People are getting fortunes today for minor things. As a result, insurance rates are going through the roof.
Attorney: Thank you for that honest opinion (reinforcement). Now I hear that you are also saying that jury verdicts are driving up insurance rates, is that correct? (reflection)
Juror: Yes, that’s right.
54
Attorney: What do you think this is so? (clarification)
Juror: With everybody getting sued, the insurance companies have to raise their premiums to make a profit, so the little guy ends up getting the shaft.
Attorney: You mean a typical person such as yourself? (clarification)
Juror: That’s right.
Attorney: So you are saying that jury awards are directly costing you money? (clarification)
Juror: No question about it.
55
Attorney: In other words, you feel it would be against your own personal financial interest to award my client money, even if the facts of this case prove that she should be financially compensated?
Juror: Yes, I think so. Sorry.
Attorney: Please don’t apologize at all. I very much appreciate your honesty. (reinforcement)
56
A Look at David Ball & His Concepts on
Damages
David Ball has become the darling of some lawyers since he wrote “David Ball on Damages” (2001) (updated 2005).
He has 60 pages on voire dire with regards to personal injury or wrongful death case. David Ball discusses the fact that before you start your case in chief, you want jurors believing that the case is only about how much money it will take to make up for what happened to your client.
58
He argues that you should discuss harm and damages significantly in voire dire so the jury knows that is what the trial is about. Again, he discusses the fact that good voire dire questions gather information on which to base your pre-emptory and cause challenges and not ask questions that only condition or persuade.
59
He has an example of a closed ended and open ended questions indicating that the close-ending questions do not help with gathering information.
The typical closed-ended question (a question that just elicits a Yes or No) would be:
“Will you be able to award money for pain and suffering?”
An open-ended questions would be: “What trouble would you have, including money in your verdict for pain and suffering?”
60
Unfortunately, his open-ended question implies to the juror that they would have trouble awarding money. I have tried the David Ball voire dire in one case and did not feel it was very successful. Many jurors, in fact, felt I was actually trying to indoctrinate them on my side.
61
Ball also asked people to indicate what side they are closer to – for instance, here is another one of his questions:
“Many people would have a little trouble giving money for pain and suffering because it doesn’t make the pain and suffering go away. Other people think money for pain and suffering is ok. How many you are closer to those that think money for pain and suffering is ok?”
Some hands go up and then he instructs you to ask: “How many of you are closer to the people that would have a little more trouble for pain and suffering because it can’t make the pain and suffering go away?”
And then you ask the juror to tell you about that.
62
I feel a better approach would be to ask the jurors simply and directly:
“How do you feel awarding money for pain and suffering?”
This keeps any idea that the juror thinks you are attempting to encourage them to lean towards you out of the picture.
63
Sharing your Vulnerabilities
Jerry Spence teaches that it’s important to create a relationship between the lawyer and prospective juror. Jurors often think that the lawyers are just trying to ask questions to be able to reject them. Many lawyers cross-examine a juror.
Spence notes that jurors, like anybody else, want to be accepted and liked, even in small ways and yes, and admired and cared for.
65
Spence likes to call what he does with a jury “creating a tribe.” It is important for a lawyer to become part of the tribe, if not its leader. He lists the following as important to becoming a “tribe member:”
1. Look at each other – eye to eye;
2. Tell the truth to each other;
3. Listen to each other;
4. Accept each other;
5. Empathize with each other; and
6. Are loyal to each other.
66
He discusses the key to voire dire is to show your vulnerability first. He indicates you cannot ask a juror to reveal what we, ourselves, are afraid to reveal.
He indicates you “join a tribe” by accepting their values and beliefs. For example, lawyers are greedy; people hurt in accidents exaggerate, etc.
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Cover the Danger Point that Weakens
Your Case
Spence also indicates that there is a “danger point” in any trial – an issue that weakens the case. A danger point in a Plaintiff’s personal injury case is the Plaintiffs are greedy and are not deserving of large amounts of money to make up for the harm they have received.
Dealing with your danger point is your ticket to the tribe. For example, in a wrongful death case of a child asking for $20. The questions Jerry Spence pose are as follows:
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Mary Harper, Mother of Peggy Harper, doesn’t know what to do. Her little Peggy was taken from her when Mr. Reckless ran over the child and she can’t, doesn’t know how and feels filthy about putting a price on her dead baby. The law allows Mrs. Harper to recover money damages for the loss of a child. The law says money is justice. It is all the justice Mary Harper is allowed under the law.
Question: We’re here because the defense says a dead child isn’t
worth anything. How many of you agree with this?
Question: Should we let Mr. Reckless kill the baby
and then argue she is worthless?
70
Question: It’s hard for me to put a money value on a dead baby’s life. It makes me feel dirty too like I am willing to trade a child for money (this is where Jerry is showing his vulnerability first). Question: Since money is the only type of justice we can give to Mary Harper, how should we decide that amount for her? (discussion follows and do not disagree or argue with anything the juror says. If the juror agrees for the defense, someone else on the jury will take our argument for us. Question: I am a greedy lawyer. I want as much justice as I can get from her. I know that no amount will bring Peggy back to her. Mary Harper wouldn’t trade one day with Peggy for $100 Million Dollars. The law is imperfect. It can only deliver money. Mary doesn’t know how much to ask for and she feels ugly because the defense attorney yes a child isn’t worth anything. How do you feel about that?
71
Question: I will ask you to return a verdict here for $20 Million Dollars. Will you leave room for the possibility that $20 Million Dollars is a reasonable settlement in this case?
Question: Will you let me show you why the amount is reasonable?
Question: To help identify jurors to keep a strike.
72
Core Value Questions
We have discussed core values before briefly. Here are some questions you should ask the Plaintiffs in each case:
Question: If a loved one of yours was severely injured or killed due to the negligence of a company, would you sue that company?
Question: Tell me the name of one person, living or deceased, that you admire and respect the most.
Question: On a scale of 1 to 10, with 1 being that you strongly disagree and 10 being that you strongly agree, what number would reflect your view on the following statements?:
The Defendant’s actions that harmed another, the Defendant should be held responsible and accountable.
74
Questions About the Jurors’ Rights
It’s a beneficial strategy to empower the juries so they may make sure nothing prejudicial occurs inside the jury room. The “jurors’ rights” can empower jurors to help your side.
A simple voire dire on jury rights is as follows:
76
The Judge will also tell you that you are only allowed to consider and talk about the evidence you heard in that Courtroom and there are going to be a lot of things you do not hear in this Courtroom. If you do not hear it in this Courtroom, it cannot be considered when making decisions. Talking about things that you do not hear in the Courtroom would be against the rules;
At the end of the Trial, the Judge will tell you this is the law;
Would anyone here want to factor in outside reasons?;
Since outside considerations are illegal considerations, what trouble might a juror have awarding a large sum;
77
You have certain rights, as well as, responsibilities. First, there is a right to hear all of the testimony. So during the course of the Trial, if a witness or attorney states something you don’t hear, would you feel comfortable raising your hand and saying, “Your Honor, I did not hear what was just said, can it be repeated please?” Is everyone ok with that?;
You have an absolute right to be on a jury where everyone follows and understands the rules. The whole trial is based on rules. There are certain ways and procedures to do your job, certain ways the Judge performs her job and certain ways the attorneys have to perform our jobs;
78
You are also Officers of the Court. It is important for each juror to help enforce and reinforce the rules if you see they’re being broken or challenged. NO ONE – not me, opposing counsel, another juror, or even the Judge is allowed to put you in a position where you have to go home knowing you have been on a jury that broke your oath by ignoring or violating the law when making the decision; In deliberations, if someone does not follow the rules the Judge gives you, would you be willing to remind them of the rules?; If your fellow juror insists on discussing and considering an illegal topic in the jury room, would you feel comfortable asking your Foreperson to tell the Baliff you need the Judge to come talk to that juror who is disobeying the instructions?; and Does anyone feel they won’t be able to follow the rules?.
79
Many jurors cannot afford to be called away from their jobs to sit on a jury. This financial hardship may make them impatient and angry. Angry at the plaintiff for bringing the lawsuit. It is important to ask if the jurors have any pressing needs. Then level with them about the time and delay the trial is likely to take.
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