Monthly Archives: April 2016

Motion in Limine: An Effective Pretrial Tool and Weapon – Wrongful Death & Remarriage (Part 6)

Skunk

The defense oftentimes wants to muddy the waters and misdirect or sway the jury away from a person’s cause with information that is irrelevant or unfairly prejudicial. Wrongful death cases are no exception and remarriage is one of those topics.¬† Fortunately, Indiana court’s have joined the majority of jurisdictions which have prohibited such tactics by the defense as irrelevant and unfairly prejudicial.

The general rule in Indiana is that in a wrongful death action a right of action or an amount of recovery is not affected by the fact that the surviving spouse has remarried or contemplates remarriage. Wabash R. Co. v. Gretzinger (1914), 182 Ind. 155, 104 N.E. 69; Consolidated Stone Co. v. Morgan (1903), 160 Ind. 241, 66 N.E. 696; Gilmer v. Carney, 608 N.E.2d 709 (Ind. Ct. App. 1993); City of Bloomington v. Holt (1977) 172 Ind. App. 650, 711, 361 N.E.2d 1211(held motion in limine prohibiting mention of the fact, probability or possibility of remarriage of the plaintiff including with whom he is residing was proper).  This restriction applies and restricts proof that a spouse is living with another person and applies regardless of gender. City of Bloomington v. Holt, supra.

The enactment of IC 34-4-36-1,2 concerning payments from collateral sources should not be read or interpreted as changing Indiana’s traditional common law view. The collateral source statute clearly addresses only evidence of monetary payments. Gilmer v. Carney, supra. Since statutes in derogation of the common law are to be strictly construed and should not be extended beyond their express terms or what they unmistakably imply, Indianapolis Power Light v. Brad Snodgrass, Inc. (1991) Ind., 578 N.E.2d 669, IC 34-4-36-2 should not be extended to embrace nonmonetary items such as remarriage. Id.

So be ready for this issue and address it in your pretrial motion in limine so that the defense is prohibited from throwing a skunk into the jury box.

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FAST AND DIRTY JURY SELECTION

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The time allowed for jury selection now is typically very brief compared to the time allotted to attorneys years ago when I first started practicing. I used an approach similar to the one suggested here in picking criminal juries where I had much more time to explore the qualifications of jurors and their potential biases. However, I usually saved the line of questioning for use later in my examination of potential jurors. Now, I usually start off with this line of questioning and say something along the following lines: 

I started off my career, as a law clerk for a federal judge and was privileged to listen in when the judge would talk to jurors after a verdict. I realize that for most people this is their first and maybe only involvement with the legal system. They all take their responsibility very seriously and want to do their very best to render a fair and just verdict. However, when I got out there and started questioning jurors myself, I made a mistake in how I approached the whole process. I forgot that potential jurors don’t have enough experience with the law and our system to fully appreciate what is really required of them to take the oath to” truly” and “fairly” decide a case. 

 As a state prosecutor I learned after the fact that potential and actual jurors sometimes had very strong feelings about a particular type of case that through no fault of their own prevented them from being able to fully and fairly without reservation take the oath as a juror. This was not their fault… It was the fault of the attorneys. We did not let them know what was expected.   

 For example, I had a case with a school teacher who was picked as a juror on my client’s case. My client was very seriously injured. The jury eventually returned a defense verdict after telling the judge that they were hung and could not reach a verdict. This juror who ended up being the foreperson called me three days later and confessed to me that she did not believe in people obtaining money for “pain and suffering” even though it was required by the law in the Court’s instructions. She also confessed that she really did not believe in people suing for money. I asked her why she never mentioned this when questioned and she said that my questions were not specific enough to make her realize that this was important.   

I have to humbly admit that I may not be smart enough to ask the right questions. I need your help. So if I am talking about a topic and you think there is anything in your background that you would want me to know if you were in my client’s position, please let me know about that topic. 

I know there are certain types of cases that I could not sit on as a juror.  I would be unable to take the oath without reservation to act as a fair and impartial juror. There is nothing to be ashamed of in admitting that… In fact, that sort of honesty and candor should be applauded. If it is something that you do not want to publically discuss, just let me know and we can discuss the topic in private with just the attorneys and the court.      

Will each of you agree to do that for my client? Thanks. 

I will then move through the various topics on my voir dire such as:  

1. The type of claim. 

2. Burden of proof requiring a relatively low threshold, proving that the greater weight of the evidence means showing that your position is ever so slightly greater to have occurred that a flip of a coin of heads over tails. 

3. Vicarious liability or strict liability. 

4. Preexisting condition standard. 

 5. Various types of damages, wages, medical bills, future damages, pain and suffering, loss of enjoyment of life, loss of function, scarring, etc. 

 6. Outside expertise such as attorneys, doctors, nurses, engineers, etc.   

 7. Outside knowledge of the parties or case. 

 8. Loss of consortium. 

 9. Civil litigation and frivolous claims or defenses. 

 10. Only chance to recover – future damages. 

11. Prior jury service 

12. Legal experiences or education. 

13. Medical experiences or education. 

14. Scientific or engineering training. 

 When someone is honest enough to admit they cannot truly and fairly act as a juror, I first thank them for having the courage to admit that this is not the type of case for them to serve on as a juror. This is very important, especially with the first juror who admits their limitations.  

Admitting that you cannot be fair is not an easy thing to do. If they admit bias, then I lock them in on their bias. I explain that based upon what they are telling me, that they could not swear to God and the Court that they could, without reservation, swear an oath to truly and fairly act as a juror on this case.   

I follow up and obtain their agreement that no amount of questioning or cajoling by the Court or opposing counsel would change their answers to my questions.

I then ask the other jurors on the panel if anyone has feelings similar to the last juror? I then work through sealing the deal with the other panel members as outlined above. Finally, I conclude with my initial point: 

 Is there anything else any of you can think of that I wasn’t smart enough to ask  that you would want me to know about if you were in my client’s position?  

I then thank them for their help and candor and pass the jury panel. 

Empowering the panel members like this encourages candor and makes them feel good about admitting their bias. Judges appreciate this type of voir dire as opposed to a bunch of conditioning questions that are primarily designed to try your case in voir dire. This form of questioning will dramatically increase the number of jurors you are able to eliminate for cause. 

My last civil jury trial, I was able to eliminate five jurors for cause. This frees upon your preemptory challenges for use with person you suspect are not being candid and are bias. 

Because you are focusing primarily of eliminating jurors for cause or bias, most judges will even give you additional time to conduct voir dire if you start eliminating a large number of panelists and still have persons who have not been questioned.     

 

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