Category Archives: Jury Selection

Use of Peremptory Challenges and Preservation of Challenges for Cause

The great thing about our system of democracy is when they call you for jury duty, you have to come… It’s an honor and a privilege. I was called and I’ve got to be here.    – – Antonio Villaraigosa

Pursuant to Indiana’s long-standing rule, a claim of error arising from the denial of a challenge for cause is waived unless that party used any remaining peremptory challenges to remove the challenged juror or jurors.   In Robinson v. State, 453 N.E.2d 280, 282 (Ind.1983), the Indiana Supreme Court stated “[o]ur law on this issue is well settled. We have consistently held that to preserve any error the defendant bears the burden of demonstrating that at the time [he or she] challenged the jurors for cause,[he or she] had exhausted [their] peremptory challenges.” Eventual use of all peremptory challenges is therefore not enough to satisfy the exhaustion requirement. Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d 1232, 1235 (Ind. 2002). The rationale for this approach is that “where a trial court may have erred in denying a party’s challenge for cause, and the party can cure such error by peremptorily removing the apparently biased venire person, the party should do so in order to ensure a fair trial and an efficient resolution of the case.” Id. To guide attorneys through the field of venire challenges, our supreme court devised a clear and predictable road map.  You must use any available peremptories to correct erroneous denials of challenges for cause if they are available. If on appeal you then prove both the erroneous denial and that you were unable to strike another objectionable juror because you exhausted your peremptory challenges, you are entitled to a new trial. Id. at 1237.

Failure to correct the problem yourself, if possible through the use of a peremptory strike, waives any error caused by the trial court’s denial of your challenge for cause.

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Use of Peremptory Challenges and the Improper Exclusion of Juors

Ending racial discrimination in jury selection can be accomplished only by eliminating peremptory challenges entirely.  – – Thurgood Marshall

Number of Peremptory Challenges:  There’s no such thing as a free lunch and likewise, even the free strike of jurors provided by the use peremptory challenges is not its own costs and problems. However, there will be people that you cannot establish good cause to remove from the panel and will have to remove by use of peremptory challenges.  In capital cases, both the government and the defendant are allowed twenty (20) peremptory challenges.  In non-capital felony cases, the defendant is granted ten (10) peremptory challenges and the government is allowed only six (6). In misdemeanor and civil cases, each side has three (3) peremptory challenges. Federal Rule of Criminal Procedure 24 and Federal Rule of Civil Procedure 47; 28 U.S. Code § 1870, Challenges.

Under Indiana Jury Rule 18(b) “In civil cases each side may challenge peremptorily three (3) jurors.” IC 34–36–3–3(a) ( “Each party in a civil case has three (3) peremptory challenges.”).  In Indiana State Court, in capital cases, both the State and the defendant are allowed 20 peremptory challenges. In non-capital felony cases, the State and the defendant are granted ten (10) peremptory challenges.  In Class D Felony and misdemeanor cases, each side is entitled to five (5) peremptory challenges.  In all state civil cases, each side has 3 peremptory challenges.  When several defendants are tried together, they must join their challenges.  Indiana Jury Rule 18.

As to alternate jurors, one (1) peremptory challenge shall be allowed to each side in both criminal and civil cases for every two (2) alternate jurors to be seated. Id.

Race:   Peremptory challenges based on race violate the juror’s Fourteenth Amendment right to equal protection of the law and require a retrial. McCormick v. State, 803 N.E.2d 1108, 1110 (Ind.2004); Wright v. State, 690 N.E.2d 1098, 1104 (Ind.1997). A defendant’s claim of racial discrimination in a peremptory strike triggers a three-step inquiry. See Bradley v. State, 649 N.E.2d 100, 105 (Ind.1995) (citing Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986)).

First, the trial court must determine whether the party has made a prima facie showing that the opposing party exercised a peremptory challenge on the basis of race. Batson, 476 U.S. at 96–97, 106 S. Ct. 1712. To make a prima facie case of purposeful discrimination, the complaining party must show that the excused juror was a member of a cognizable racial group and present an inference that the juror was excluded because of his or her race. McCants v. State, 686 N.E.2d 1281, 1284 (Ind.1997).

Second, after the complaining party presents a prima facie case of racial discrimination in the use of a peremptory challenge, the burden shifts to the opposing party to present a race-neutral explanation for striking the juror. Batson, 476 U.S. at 97–98, 106 S.Ct. 1712. A race-neutral explanation means “an explanation based on something other than the race of the juror.” Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality). Although the opposing  party must present a comprehensible reason and offer more than a mere denial of improper motive, “the second step of this process does not demand an explanation that is persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 767–768, 115 S. Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). If the reason is not inherently discriminatory, it passes the second step.  Id. “[T]he issue is the facial validity of the opposing party’s explanation. Unless a discriminatory intent is inherent in the opposing party’s explanation, the reason will be deemed race neutral.” Id. “[An opposing party] simply has to state his reasons as best he can and stand or fall on the plausibility of the reasons” proffered. Miller–El v. Dretke, 545 U.S. 231, 236, 125 S. Ct. 2317, 162 L.Ed.2d 196 (2005).

Third, the Court must determine whether the complaining party has established purposeful discrimination. Miller–El, 545 U.S. at 236, 125 S. Ct. 2317; Batson, 476 U.S. at 98, 106 S. Ct. 1712; McCormick, 803 N.E.2d at 1110. This third step involves evaluating “the persuasiveness of the justification” proffered by the opposing party, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S. Ct. 1769.  Disparate treatment of similarly situated jurors satisfies this burden of showing the strike was racially motivated. Snyder v. Louisiana, 552 U.S. 472 (2008)(held  trial judge had acted improperly by allowing the prosecutor to peremptorily strike all African American jurors from the panel because the reasons given for striking the black jurors applied equally well to the white jurors the prosecution did not strike).

The analysis of Batson v. Kentucky has been applied in areas other than race and in civil cases. See Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991)(civil case).  Below are some examples:

Gender:  J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994), (held women could not be systematically excluded from a venire).

Sexual Orientation: SmithKline Beecham Corporation v. Abbott Laboratories, 740 F.3d 471 (2014)(held in civil case distinctions based on sexual orientation are subject to the “heightened scrutiny” standard of review and that “equal protection prohibits peremptory strikes based on sexual orientation). Given the 7th Circuit’s scathing critique of anti-gay-lesbian-transgender restrictions on marriage and their application of heightened scrutiny as part of their equal protection analysis, it seems likely that a properly supported challenge on this basis would be upheld in our local federal courts.  See Marilyn Rae Baskin V. Penny Bogan,  ___  F. 3rd  ___ (7th Cir. 2014).

So chose wisely and exercise your challenges without improper animus or bias.

The Problem of Juror Bias

“A jury verdict is the quotient of the prejudices of twelve people.” Kenneth Grubb, Attorney

Anything I missed?   Juror Bias is a difficult problem that must be ferreted out by the trial attorney in almost every trial. Quite honestly, this can not be effectively done without the cooperation of the jury. I will often close my voir dire with a question such as this:

I have limited time to ask you questions. I learned long ago that I need your help to do the best job I can for my client. I may not have been smart enough to ask something which would have an impact, even a little on you coming into this with an open mind. Is there anything you would want me to know about your background that you are aware of that if you were in my client’s position here?

Is there anything you would want me to know about your opinions or philosophy that you are aware of that I have not asked about, that if you were my client, you would want me to know about?

The trial court shall sustain a challenge for cause if the prospective juror is biased or prejudiced for or against a party to the case. J.R. 17(a)(8). This is no small matter. If found after the trial has begun, it may require the grant of a mistrial. “Generally, proof that a juror was biased against [a party] or lied on voir dire entitles [a party] to a new trial.” Thompson v. Gerowitz, 944 N.E.2d 1, 7-10 (Ind. Ct. App. 2011)(med mal case), citing to, Lopez v. State, 527 N.E.2d 1119, 1130 (Ind.1988). To warrant a new trial, there must be a showing that the misconduct was gross, and that it probably harmed the defendant. Id.; see also Ind. Trial Rule 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). “The issue of juror misconduct is a matter within the trial court’s discretion.” Lopez, 527 N.E.2d at 1130. If substantial evidence showing a juror was possibly biased is brought to the trial court’s attention in a timely manner, it is incumbent upon the trial court to conduct a hearing, out of the presence of the remainder of the jury, to determine:

(1) whether the juror is biased; and

(2) whether the hearing itself has created a bias in the juror. Id.

The court should then allow the affected party to challenge the juror for cause, and should excuse the juror and declare a mistrial if bias is found to be present and infected the jury. Thompson v. Gerowitz, supra. However, establishing juror bias can be particularly problematic. Below is a discussion of some areas of potential bias or prejudice on the part of a juror.

Insurance     Voir dire questions regarding ownership in a specific insurance company or whether the potential juror was insured by that company are proper. Wisner v. Laney, 984 N.E.2d 1201 (Ind.,2012), citing with approval to, Stone v. Stakes, 749 N.E.2d 1277 (Ind. Ct. App. 2001), trans. denied.

I.R.E. 411 while not controlling, provides guidance on this topic as well, since the restriction on the introduction of evidence of insurance is not absolute and makes exceptions for proof of other matters. The court in Stone v. Stakes noted that Indiana Evidence Rule 411 states that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Id. at 1281. However, this rule “does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as . . . ownership, or control, or bias or prejudice of a witness.” Id. (quoting additional language from the evidentiary rule). The court further noted that although Rule 411 is an evidentiary rule not strictly applicable to voir dire, “it provides some guidance in this area regarding what categories of inquiry are acceptable. Rule 411 does not limit the allowable evidence regarding insurance only to financial interest, but also allows evidence going to bias or prejudice.” Id. In the matter of Beyer v. Safron, 84 Ind. App. 512, 151 N.E. 620 (1926), the Court stated:

[L]itigants are entitled to a trial by a thoroughly impartial jury, and to that end have a right to make such preliminary inquiries of the jurors as may seem reasonably necessary to show them to be impartial and disinterested. It is a matter of common knowledge that there are numerous companies engaged in such insurance, and that many of the citizens of the state are stockholders in one or more of them. Such citizens may be called as jurors, and if at such time they are such stockholders, or otherwise interested in any of such companies, their pecuniary interest might disqualify them to sit as jurors.

Id. at 621. In this day of endless insurance company commercials, it seems unlikely such questions are any less relevant or any more likely to be unfairly prejudicial to a defendant than they were back in 1926. Questions embracing this topic would be appropriate provided the questioning is not prolonged or designed to attain some improper end.

Implied Bias – Juror’s Relationship To State. Woolston v State, 453 N.E.2d 965, 968 (Ind. 1983) involved a juror who had a close relationship to the State Police due to his wife’s employment. The juror was familiar with three of the officers who were to testify for the State, and knew that his wife had worked on some of the evidence in the case. Noting that a challenge for cause had been held to exist in cases where a juror’s spouse had been hired for future employment by the prosecutor, and where the juror’s wife was a second cousin to a member of the prosecutor’s staff, Woolston found that, based on the juror’s relationship to the State, it was error for the trial court to deny the challenge for cause.

Knowledge of Matters Outside of the Court Record

Jurors are required to decide a case only based upon the evidence presented at trial and are not to consider matters outside the record. This point is made clear by a number of different provisions. For example, under I.R.E. 606(a), “[a] juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.” If a juror has specialized or particular knowledge outside of the record, they are not permitted to use it in either deciding the case or in their deliberations with other jurors, since to do so makes them in essence a silent witness in the case.

By analogy, judges are similarly prohibited from acquiring knowledge outside the record in deciding a case. Lillie v. US, 953 F.2d 1188, 1191, 34 Fed. R. Evid. Ser. 938 (10th Cir. 1992)(held where Judge based verdict on an unannounced view of the accident scene he violated Federal Rule of Evidence 605); US v Lewis, 833F.2d 1380, 1385, 24 Fed. R. Evid. Ser. 432 (9th Cir. 1987)(held where Judge relied upon his own personal experience as to the effects of anesthesia in determining the voluntariness of a confession, he violated the prohibition against being a witness under Federal Rule of Evidence 605).

Under Indiana Jury Rule 24, in a criminal case, if the court receives information that a juror has personal knowledge about the case, the court shall examine the juror under oath in the presence of the parties and outside the presence of the other jurors concerning that knowledge. If the court finds that the juror has personal knowledge of a material fact, the juror shall be excused, and the court shall replace that juror with an alternate.

When jurors possess knowledge as a result of their education or occupation, it is important to question the juror and make sure that they will decide the case based upon the testimony in court and not the knowledge they possess from outside of the courtroom. Otherwise, they become a witness whom no one had a chance to depose, question, rebut or impeach.

Likewise, knowledge of a case garnered from the press or other outside sources becomes problematic and must be dealt with under Indiana Jury Rule 24 (in criminal cases) to see if the juror has formed an opinion and if that opinion can be set aside and the case decided solely on the evidence presented at trial. Individual voir dire is required in addressing such matters.

In all criminal prosecutions, the accused shall have the right to a public trial, by a fair and impartial jury. See Indiana Constitution, Bill of Rights, Article 1. Bill of Rights, Section 13 and United State Constitution, Bill of Rights, Amendment VI; Ward v. State, 810 N.E.2d 1042, 1048 (Ind.2004), cert. denied, 126 S. Ct. 395 (2005). “At the heart of the decision on a motion for change of venue is the right to an impartial jury.” Ward v. State, supra; Lindsey v. State, 485 N.E.2d 102, 106 (Ind. 1985). A defendant must demonstrate the existence of two distinct elements:

(1) prejudicial pretrial publicity and

(2) the inability of jurors to render an impartial verdict.

Ward v. State, supra, 810 N.E.2d at 1049. “Prejudicial pretrial publicity is that which contains inflammatory material which would not be admissible at the defendant’s trial or contains misstatements or distortions of the evidence given at trial.” [Emphasis Added]. Ward v. State, supra, quoting from, Burdine v. State, 515 N.E.2d 1085, 1092 (Ind. 1987). In protecting a defendant’s right to a fair and impartial jury, the trial court may consider granting a change of venue, or change of venire as a means of achieving this end. When a change of venire occurs, the location of the actual trial does not change. However, a juror pool from outside of the affected area of pretrial publicity is brought in to serve.  Such motions need to be promptly raised (within 30 days of the initial appearance) or a party risks waiving the issue and being required to show good cause for failing to raise the matter earlier.

Regarding the examination of potential jurors, under IC 35-37-1-5 (b), “If a person called as a juror states that the person has formed or expressed an opinion as to the guilt or innocence of the defendant, the court or the parties shall proceed to examine the juror on oath as to the grounds of the juror’s opinion. If the juror’s opinion appears to have been founded upon reading newspaper statements, communications, comments, reports, rumors, or hearsay, and if:

(1) the juror’s opinion appears not to have been founded upon:

(A) conversation with a witness of the transaction;

(B) reading reports of a witness’ testimony; or

(C) hearing a witness testify;

(2) the juror states on oath that the juror feels able, notwithstanding the juror’s opinion, to render an impartial verdict upon the law and evidence; and

(3) the court is satisfied that the juror will render an impartial verdict; the court may admit the juror as competent to serve in the case.”

Covering these points should assist you in identifying and establishing juror bias. Good luck.

Zen and the Art of Trial Advocacy

“The moon does not fight. It attacks no one. It does not worry. It does not try to crush others. It keeps to its course, but by its very nature, it gently influences. What other body could pull an entire ocean from shore to shore? The moon is faithful to its nature and its power is never diminished.”

~ Deng Ming-Dao

Staying focused and on course in a trial is important.  There are so many things to distract, delay and confuse the jury.  Objections, irrelevant evidence, innuendo directed towards your client or witnesses, judicial pontification and other assorted events distract and confuse jurors.  It is important that you are not one of them.  That is why having an even demeanor and a clear theme for your case is critical.

A case’s value or outcome often turns on the credibility and likeability of you and your client.  If you can remain calm through the ups and downs of a trial, it will not go unnoticed.   Jurors will look to you when a harmful piece of evidence is revealed to see how you react in order to gauge the event’s importance.  You need to impart a Zen like demeanor.  This calms your client and witnesses.  It also sends a subtle message to the jury that everything is going to be alright. 

Staying calm is an important strategy to share with your client and witnesses.  Jurors often gauge how important or critical an line of questioning is by how your client or witness reacts when confronted by your adversary on cross-examination.  The only thing one has absolute control over is their behavior and demeanor. By emphasizing this point with your client and witnesses, you can both empower and relax them.  No matter how rude or aggressive the other attorney is, it’s important for them to remain calm and composed.  By doing so, the examination will typically be shorter.  When an adverse attorney senses he has drawn blood, he will bore in with more of the same.  A client or witness can tactically overcome this by simply remaining calm.  Likewise, the client or witness must  avoid sarcastic, insincere or solicitous remarks.  This is their chance to make a good impression and answer what is asked.  It is not their job is to exchange verbal jabs with the other attorney or “win the case”.  There is an old saying, “If you wrestle with a pig, you’re bound to get dirty.”  Don’t let your client or witness get dirty by wrestling with the other attorney, because ultimately, they will lose.

 A theme is the glue that binds your case.  It draws the jury into your view of the evidence and keeps them there.  A theme is important because it gives you and the jury a clear course to follow and a lens to view the evidence through.  A theme can be as simple as a “man must be true to his word” or “sloppy police work leads to unreliable evidence and  reason to doubt the state’s case.” Have you ever seen a movie that consisted of a lot of “good scenes” but was overall unwatchable?  Why does this happen?  Usually the movie has no clear unifying “plot” to hold all of the “good scenes” together in a coherent fashion.  You as the “director” of your case need to have a clear “plot” or “theme”.  Without a theme the jury gets lost and forgets or misinterprets the evidence.  You want the jury to be looking for ways to fit the evidence into your view of the case, not your opponent’s.  The theme should be presented during juror voir dire, opening statement, direct examination, cross-examination and closing argument.  One of the best ways to do this is to prepare your opening statement well in advance of trial while discovery is still underway.  This will help inform every aspect of your case and preparation.   It will help you evaluate what is needed and what should be left on the cutting room floor. 

Remember Young Weed-Hopper, “If you stay faithful to your case’s true nature, its power will never be diminished”.       

A Hung Jury: When a Stalemate Becomes Your Best Option.

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Hung juries are generally considered to be a rare outcome to a trial. However, even though it is not a true resolution, it can be considered your best outcome. Hung juries are even rarer when you are dealing with civil cases, where the only thing that you obtain is money. If you are likely to lose a case, a hung jury may be your best option. I have had three criminal cases end with a hung jury and had a civil case that nearly met the same fate when a jury told the court they were hopelessly deadlocked. The jury ended up reaching a verdict after being sent back for further deliberations. Following a hung jury, oftentimes, cases will settle or in a criminal case, the defendant will pled to a lesser charge. In other instances, a case may simply die on the vine and is never tried again. If you are criminal defendant, that is a good outcome. Based upon my experience in this area, I would recommend you do the following things if you want a hung jury:

1. Pick a diverse jury with strong personalities : Assuming you cannot stack the jury with persons favorable to your client’s point of view, you should strive to pick persons who are very different from one another. In order to hang a jury you only need one vote for no verdict. You want persons with strong personalities. If you have weak-willed persons on your jury, they will eventually succumb and capitulate to the majority. If they have similar backgrounds, they are more likely to come together. Conflict is your friend, if your goal is to have the case end in gridlock. The more different two people are the more difficult it is for them to connect with one another.

2. Polarize the Jury: In order to do this you need to find emotional triggers that are likely to evoke a strong response in those persons favorable to your position and persuade them that this is a matter of principle. This theme needs to be driven home at every stage of the trial during jury selection, opening statement, direct examination, cross examination, closing and as part of instructions. You need to present the jury with a clear choice.

3. Find a Good Villain: They say: “When the law is against you, you argue the facts. When the facts are against you, you argue the law. When the facts and the law are both against you, you find someone to give holy hell to and hope that the jury in its outrage ignores the law and the facts.” It ultimately requires that you find a good reason to brand the process unfair, unreasonable or plain biased. If you can find that hook, you have a chance at a hung jury and maybe even an acquittal.

4. Empower Each Juror: The jurors need to be told that in order for a verdict to be rendered a unanimous decision must be reached and juror’s oath requires that they stand alone if the party’s burden has not been. Get each juror to promise that they will hold out if they do not morally agree with the verdict. Empower the jurors by letting them know that they each have the responsibility to hold out for the verdict they believe should be returned and should not surrender their position just to leave earlier. Your client will live with the verdict the rest of his life. Make sure the jury knows that they have the power to say no and owe it to be fair and impartial.

5. Veto power: jury instructions need to tell the jurors know they can say no. Indiana has codified this power. Article I, Section 19 of the Indiana Constitution provides “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” The Indiana Supreme Court has approved the instruction: “You, gentlemen, in this case, are the judges of law as well as of the facts. You can take the law as given and explained to you by the court, but, if you see fit, you have the legal and constitutional right to reject the same, and construe it for yourselves.” Blake v. State, 130 Ind. 203, 29 N.E. 1077 (1892). It does not, however, give to them the right to disregard the law.” Id. at 204-05, 29 N.E. 1077. Remind jurors of this power they have and present a reason why the law is unjust as applied against your client.

6. Promises are Promises: During voir dire have the jurors each individually promise to hold out for a not-guilty verdict, no matter how long it takes, if this is the verdict that they support. Remind them of their oath in closing.

7. Argue Your Case with Fervor and Sincerity: If you don’t believe in your case, then how can you hope that a juror will hold out alone for a not guilty verdict, etc.

Even Chess Grand Masters have angled for a stalemate, if the board indicates they have no chance to win. Jury nullification is an important safeguard and the last resort against wrongful imprisonment and government tyranny. Sometimes a hung jury is the best outcome you can hope for and certainly beats a loss.

Big City Chicago Style

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Sitting in Water Tower Place I could not help but think about all the great and talented attorneys this City has produced. The legendary Clarence Darrow called this place home. He never shied away from taking on difficult cases, unpopular causes or clients.

Darrow successfully defended Dr. Ossian Sweet, a black physician, who was charged with the death of a man who was shot to death as Dr. Sweet and family members defended themselves from an angry white mob of people who were yelling and stoning Dr. Sweet’s home for daring to move into an all white neighborhood in Detroit during the 1920s. The case was tried to an all white male jury. Darrow was fortunate to have a fair-minded judge who made sure that jury selection was a fair process. The trial judge, Frank Murphy, would later become mayor of Detroit, governor of the Philippines, governor of Michigan, Attorney General of the United States, and an Associate Justice of the United States Supreme Court.

As an attorney I have my share of difficult cases. I represented a lady charged with the murder of her newborn child. The local press and public had vilified her on television, in print and on the Internet. My client had the benefit of a fair-minded judge who insured that my client’s right to a fair and impartial jury was not violated by allowing written questionnaires and individual voir dire of jurors over a period of two and half days. I did the case for the challenge and out of a sense of obligation. The glares from law enforcement or members of the public looking on did not dissuade me. I fortunately won an acquittal.

Without attorneys willing to act in such situations and bring their best to bear our system of justice can not work. Only through both sides working to do their best can our system produce just and accurate results. Like John Wayne said, “Courage is being scared to death and saddling up anyway.”

Trial Post-Mortem

20130912-145745.jpgIf you try cases long enough, you are going to eventually lose a few.  You need to look at losses as an opportunity to improve.   Quite honestly you should learn more from your loses, than your victories.  If your are allowed, you should speak with the jurors and see what they thought was important. You need to check the case and consider:

1.   Jury Voir Dire:  Was a juror biased against your case? Could you have formulated a better question to uncover this bias and possibly exclude the juror.  Were there a problem with your case you could have raised in voir dire to find out who could not treat the evidence fairly?

2.  Prejudicial Evidence or Arguments:  Did the other side present irrelevant evidence or improper arguments?  Even if your objection is sustained, it is often difficult to “unring” that bell. You may be able to head off such arguments or evidence in the future through an motion in limine excluding such evidence or argument.  It might also uncover problem evidence.

3.  Were There Surprises:  Perhaps the opposing party hit you with evidence you missed.  Next time you may be able to head off such problems by doing what your opponent would likely do in investigating the case.  You may need to comprehensively collect and check medical records more carefully and prepare a medical chronology to refresh your client’s memory before questions are incorrectly answered in interrogatories or depositions.  Or perhaps, there are other lawsuits, claims or even criminal convictions your client failed to tell you about in advance of discovery and their deposition.  You may want to hire a private investigator to do a preliminary background check of your client or just do a Google search of your client’s name to see what you might uncover.  You may want your client to give you access to their social media sites to check for potential problems.  Better yet, you can educate your client early on about the importance of being completely honest with you.  There are few problems that cannot be dealt with if you know about them.  It’s the problems you don’t know about that can kill you.  I always tell a client that:  “You don’t want to take a good case, try to make it a great case (through exaggeration or lying) and turn it into a bad case.”

4.  Witness Preparation:  Did you adequately prepare your witnesses or client to testify.   Good testimony requires that you and your client be on the same page.  You need to adequately prepare your client or witness for any landmines that exist and perhaps bring up the problems yourself in voir dire, opening and/or on direct examination to blunt the damaging evidence’s impact.  Video-taping a mock testimony session and allowing your client or witness to critique their own performance can work wonders as well.

5.  Additional Evidence:     Was there a witness you needed to call?  Lay-medical witnesses to paint a before and after picture can go a long way in corroborating your client’s testimony that they were injured in this incident and not from some other event or condition.  Was there an expert whose testimony might have covered a gap or question in your case?  Could a photograph, diagram or model have made your presentation clearer or answered a juror’s doubt?

6.  Jury Instructions:  Were there jury instructions needed to address points of law pivotal to your case and the jury’s understanding of those issues?  Don’t take the easy way out and rely simply on pattern jury instructions.   Review the case-law and formulate your on instructions on nuanced points of law that are difficult for the jury to understand and apply to your case.

7.  Strategy:   Was there something you could have handled better?  Was there a better analogy or argument you could have used to make your point or address your weaknesses?  Was your overall view of the case cohesive and persuasive.  Was your order of witnesses correct?  There are a number of great resources available to you from books about famous trials, closing arguments and trial advocacy.  Don’t reinvent the wheel.  Learn from other’s experience what works and what doesn’t.  Seek out a mentor and pick their brain.  See my earlier post on Fireside Reading for the Trial Attorney.

I hope the thoughts outline above help you in critiquing your “failures” and turning them into an opportunity for improvement and growth as an advocate.

Jury selection in ten minutes or less… Can it be done effectively?

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The time allowed for jury selection today is typically very brief compared to the time allotted years ago to attorneys. One article that I recently read by Attorney Karen Koehler provided an interesting and effective approach to dealing with limited time for questioning potential jurors. This is what she said to a panel of prospective jurors:

“Unlike the other attorneys, I am going to do the struck method. This is also called the Oprah or Phil Donahue method – I’d like you all to join in, don’t wait for me to single you out. We’d really like to hear from all of you. We left off with the defense attorney talking about general damages and how your job would be to determine compensation. I’d like to continue that discussion.”

“How many of you have been on a civil as opposed to a criminal trial (answer – none, all criminal). What was the burden of proof (answer — beyond a reasonable doubt). Does anyone know what the burden is in a civil case (answer — preponderance). Does anyone know what that means (no answer) – – More likely than not.

“This is an admitted liability case. But if it were not, then you would be asked to decide whether the defendant more likely than not hit the plaintiff’s car forcing it off the road (collective answer – okay). Instead this is a case about damages. You will be asked to decide what amount of money is fair to compensate plaintiff for his injuries (heads nod). Now are any of you starting to feel uncomfortable that this will be your job (heads nod, but I continue)? Now add this fact: not only will you decide damages like medical bills, but also you will decide what amount should be paid to compensate him for pain and permanent disability (pause). And add this fact: in making your decision you will not be told of the defendant’s financial condition (collective fidgeting). Now, is anyone so uncomfortable that they will not be able to fairly decide what amount of damages will fairly compensate the plaintiff?”

See page 34, http://karenkoehler.com/pdf/VoirDire.pdf. In response to this line of questioning more than half the jurors indicated that they could not be fair and impartial resulting in a mistrial. Creative approaches are needed to deal with the problem of limited time to question jurors about potential biases.

Because of limited time it is also important to be thoroughly familiar with your jurisdictions “jury rules” or case-law which establishes grounds for removing a juror for cause. The following is a list of grounds available in my state:

NOT A CITIZEN:………………………………………………………….. JR 5(A)

NOT AN ADULT:……………………………….………………………… JR 5(B)

NOT A COUNTY RESIDENT:…………………………….……………… JR 5(C)

NO FLUENCY IN ENGLISH:……………………………………….……….. JR 5(D) JR 17(A)(3)

DISABLED (MENTAL/PHYSICAL)……………………………….……….. JR 5(E) JR 17(A)(3)

UNDER GUARDIANSHIP……..…………………………..……………… JR 5(F)

NON-VOTER FELON……………………………………………………… JR 5(G)

LAWMAN (CRIM.)……..………………………………..…………………. JR 5(H)

RELIGIOUS BELIEFS…….…………………………………….………… JR 5 (ENDING)

PRIOR JURY SERVICE TO VERDICT IN LAST 365 DAYS……….… JR 17(A)(2)

OPINION ON CASE’S OUTCOME (CAN’T SET ASIDE)……………… JR 17(A)(4)

JUROR FOR SAME DISPUTE:…………………………………..……… JR 17(A)(5)

RELATED TO PARTY, ATTY. OR WITNESSES TO 5TH Degree JR 17(A)(6)

INTERESTED IN OUTCOME………………………………….………… JR 17(A)(7)

BIAS OR PREJUDICE FOR OR AGAINST A PARTY………………… JR 17(A)(8)

WITNESS TO CASE………………………………………………..……. JR 17(A)(9)

GRAND JUROR……………………………………………………..……. JR 17(B)(1)

CRIMINAL DEFENDANT (CURRENT) ………………………….….… JR 17(B)(2)

OPINION AS TO OUTCOME DUE TO WITNESS OR NEWS………. JR 17(B)(4)

INTERESTED IN SIMILAR SUIT BEGUN OR PLANNED…..………… JR17(E)

Today’s trial attorney must work faster and smarter than ever before. Unfortunately, judges are far too impatient and fail to recognize the value of jury voir dire. So be ready to use your time efficiently and wisely next time you “pick” a jury as time is of the essence.
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Jury Selection-What’s the Goal?

Of all the areas of trial work, this is probably the most difficult and important task that confronts a courtroom attorney. I have seen many different approaches used in questioning and selecting a jury. Your time is limited and the stakes are high. If you “guess’ incorrectly you can lose your case before it even begins. While there are several tasks to accomplish during jury voir dire, uncovering biases is the most important. The information gathered can be used to remove a potential juror for cause because of bias or the failure to satisfy the statutory requirements to sit and judge a case.

Grounds for cause can include the inability to read, see or hear, lack of English literacy, personal bias, preconceived opinions on a case that cannot be put aside, personal knowledge of the underlying facts or the parties, a family relationship to a party within so many degrees, and religious or ethical reasons that prohibit a person from sitting in judgment of another or rendering punishment. Most states have jury rules and/or statutes that outline grounds for excluding a juror for cause. You need to be familiar with them and be ready to specifically cite to the rules or statutes as needed. To this end, you really need to enlist the aid of the jurors themselves, especially where the Court has limited your time for questioning jurors.

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I usually will say something like this early on in the selection process:

I have limited time to speak with you today and I may not be smart enough or have enough time, to ask the right questions to learn what I need to know about your background. I really need your help. I know it’s not easy to say for you to say that “there is something in my background that might not make me the best of person to sit on this type of case.” It takes a lot of courage to admit this sort of thing about yourself. So ask you to please help me and my client by letting me know if there is anything that you know of in your background that you think I should know. Please let me know if there is anything which could affect your ability even a little to sit as a juror in this case?

This usually will get people talking. I always compliment the person for their honesty and candor. I try to cover burdens of proof and make sure that the jury will not have a problem (even a little) in obeying the Court’s instructions and including money for all items of damage including pain and suffering or loss of services. I will also check for any areas of expertise that a witness might have which could come to bear and make sure that they will decide the case based upon the expert testimony in court and not be their own expert. This would be unfair because i would have no chance to question them or examine their opinion. I will usually ask something along the following lines to see if the juror’s expertise will pose a problem:

If our expert testifies to a principle or opinion which based upon your training or experience you know is incorrect, can you put aside your own personal knowledge and decide this case solely based upon the evidence presented in court? Would you be unable to ignore what you have learned outside the court room in decide what to do?

I also look for who the leaders are on the jury panel. They will either lead the others or hold out and hang your jury. You should look at the person’s education, job, civic involvement and standing in the community. I simply ask :

Have you ever held a position of leadership at work or as part of an organization or club?

Leaders are most likely to end up being the foreperson. As a federal judge once told me, if you can pick the foreperson, you can usually predict the verdict. Good luck in selecting your next jury. I hope these thoughts help you in selecting your next jury.
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