Locating the Right Expert… Is It Like Looking for a Needle in a Haystack?

The right expert can educate and enlighten a jury and help prove your case. Below are some suggestions on how to locate an expert.  

(a) Classes of expert witnesses in academia, working professionals, and
full time professional experts. These are the three primary areas from which you are  likely to obtain experts in anticipation of litigation. Each has its advantages and  disadvantages as discussed below.  

(b) Referrals from other attorneys. This is my preferred method. It’s like
buying a used car that someone else has already checked out and driven over rough  terrain. They will often have past depositions or trial testimony you can read. They can  effectively sum up the witness’s strengths and weaknesses so you know what to expect.  

 
(c) Expert witness locating services. Not my favorite, but they can be very  helpful in locating persons with obscure areas of expertise or in litigation local experts  dare not become involved due to peer pressure such as in professional negligence cases. The fees charged by the experts are substantially higher because the service tacks on
substantial hourly surcharges. However, such services typically vet the experts and can
provide you with sample reports or depositions.  

 
(d) Local universities and colleges. This is a great source for top-notch  professors. Local professors are knowledgeable, well read and well versed on the latest
developments in their fields. They are usually skilled at teaching and have experience in
educating and helping others understand difficult and technical topics. Often they have
written in your field of study at issue. The most common drawback is the fact that they
sometimes lack the practical background and work experience. Also, because they have
published, opposing counsel can use your expert’s own material to impeach them and  exploit their beliefs and positions against your client’s claim.  

 
(e) Authors of authoritative textbooks. The principles outlined above are
equally applicable here. Such experts are conservative. They value their position and  reputation as an expert in their field. They can make excellent consultants and assist you
in locating testimonial experts given their knowledge and connections.  

 
(f) Authors of journal articles. The principles outlined above are equally  applicable here. When dealing with more obscure topics they can be very helpful  assuming they have written on the topic at issue. However, they may never have testified
before. Are they quick on their feet? Are they good under pressure? Will they stay  poised? Do they lack practical experience needed to give them credibility? Screening  and preparing such witnesses can be critical if they lack experience testifying in court or
in a deposition.  

(g) Leaders in business or industry. Such persons are natural leaders and
may have personality and charisma which may be lacking in some academic type. They
may be well known locally and respected. They have practical experience that may trump
the theoretical musings of those in academia. These aforementioned weaknesses in some
instances are the business leaders’ strengths. Will they come across more as an advocate
than as an impartial expert? Will they fall into the trap of sparring with opposing counsel
and lose their composure? Are they venerable to attacks because they are not as well
versed or updated in the area or field at issue? Again, screening and preparing such  witnesses can be critical if they lack experience testifying in court or in a deposition.  

 
(h) Skilled witnesses. These are persons already involved in the case. They
should not be overlooked. They have practical experience in your case. They may also
fall within some of the other categories outlined above which further weighs in their  favor. Fate chose them, not you. They thereby avoid the stigma of being considered a “
hired gun.” 

(g) Expert Witness Firms. Such persons are full-time “expert witnesses”
and are hired guns. That being said, if they have a good reputation for being honest  brokers they can be excellent choices. They are battle tested and know how to handle the
pressure of a deposition or testifying at trial. They will be more skilled at dealing with trial tactics and better capable of maintaining their composure even if something goes
awry during their testimony. You want to avoid such experts if they are known as “
whores.” They will have a wealth of prior testimony that can be used against them
which could render them impudent as a credible expert. Screening is critical.

I hope this information helps you locate the best expert witness for your case.

Expert Witness Retainer Agreements – Striking the Right Deal.

Here are points to consider:

1. Cannot be a contingent fee arrangement. This is unethical and would be
disastrous regardless… enough said.

2. Cost of initial consultation. This should be free or nominal, but make sure this
is clear.

3. Definition of scope of work. This should be set out in the initial engagement
letter in a straightforward, succinct manner.

 
4. Determining whether the case will be billed hourly or in stages. This should
be discussed at the front. Are you doing it by the hour or by the job to be performed? By the job
avoids runaway expenses, but can lead to experts cutting short the work that needs to be done.
5. Setting a budget. This avoids surprises for both sides and eliminates the stress of
the unknown.  

6. Regularity of billing statements. Same as above. It eliminates stresses and
surprise by not including the expert’s bill in your final statement of charges or in the
reconciliation to your client.  

7. Estimate of costs associated with forensic testing and/or scene work. Such
work can involve outside contractors or specialists. You want to budget these out as well.

8. Cost benefit analysis of economy versus completeness. If you cannot afford to
do everything necessary, cover it with your client first! Explain that the costs ultimately are
either paid directly or indirectly. Some clients will raise hell after you settle their case even  though you may have fronted the expenses and resolved the case very favorably. Keep your  client informed of the cost in advance of incurring it.  

9. Cost associated with satisfying federal court or state court disclosure
requirements. What costs in your jurisdiction are to be borne by the party, versus the opponent?
Initial disclosures or answers to interrogatories are usually the financial responsibility of the  party who hired the expert.  

10. Cost associated with responding to discovery requests. Additional requests for
information or discovery may not be had for free. Under Federal Rule of Civil Procedure
26(4)(E):  

Unless manifest injustice would result, the court must require that the party
seeking discovery:  

(i) pay the expert a reasonable fee for time spent in responding to discovery under
Rule 26(b)(4)(A) or (D); and  (ii) for discovery under (D), also pay the other party a fair portion of the fees and  expenses it reasonably incurred in obtaining the expert’s facts and opinions. 

 If you are in state court, check your jurisdiction’s law and make sure your expert is paid
in advance of doing the work.  

I hope you strike the right deal.

Should I Hire an Expert? Seeing the Light…

So you think you need to hire an expert? When should you do so? Consider the following:

1. When to Hire. It is usually advantageous to hire an expert as soon as it is clear you will require one. Oftentimes, you will be hired by a client on a moment’s notice to investigate and document the scene of an incident. If you regularly practice in a particular area,
you may already have knowledge of experts you have used in the past who can competently assist you. Valuable evidence can be lost forever if you fail to conduct a prompt investigation.  In order to ensure critical evidence is not lost or spoiled, expert investigators are essential to augment or oversee investigative work conducted by others, especially in the areas of forensics, product liability, computers, motor vehicle collisions, fires or airplane, environmental and/or
industrial disasters.

2. Expert’s Role/Witness or Consultant. From the moment you consider hiring an
expert, you need to ask a litany of questions: Is an expert needed for purposes of investigating the case or evaluating the case’s merits? Could your own expert hurt more than help your case? Could the expert better act as a sounding board, provide contrarian analysis and assist you in developing the facts? Do you need help finding a top-notch expert for your case? Is there information that you cannot risk being revealed due to its inflammatory nature, but nonetheless to get expert input in order to prepare for the worst? If so, then you may be best served by obtaining a consulting expert. Most jurisdictions recognize that consulting experts are subject to a qualified work product privilege claim. If the nature of your case raises a choice of law or forum question, be aware of the relevant case law in all applicable jurisdictions.

3. Necessity or luxury. Not every case requires an expert who is retained in
anticipation of litigation. Skilled witnesses such as treating healthcare providers or governmental investigators and experts may already be involved who can assist you in developing and establishing the issues of liability, causation, or the extent of damages. On the other hand, is an expert required by the law, complexity of the facts, or needed to assist and educate the jury? In cases of professional negligence (malpractice), expert testimony is
almost always required. Without it, you are subjected to a summary judgment motion or worse, a motion for a directed verdict. What was the standard of care? Was it breached? This is an issue
that needs to be addressed early-on before you spend vast sums of time and money litigating a case which lacks merit. Malpractice cases are the most difficult ones to win. Here in Indiana, less than 80% of the malpractice cases tried to a jury result in a plaintiff’s verdict. Early evaluations prevent you from embarking on a bad business venture that will serve neither you  nor the client. 

These are the type of questions which need to be asked and answered early in the litigation. 

Common Knowledge Exception to the Requirement for Expert Testimony in Professional Negligence Cases – Sometimes Its Child’s Play.

Is the information within the common understanding of the jury? 

Rule of Evidence 702 governing expert testimony does not always apply and bar lay testimony on issues which are just plain common sense. In certain instances the answer to whether there was professional negligence is intuitively obvious and needs no explanation by an expert or anyone else. (i.e. missed statute of limitation date, leaving behind a sponge or tools in a patient’s body following surgery). 

In Indiana, medical malpractice cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some foreign object from the patient’s body.  See for example:

 Funk v. Bonham (1932), 204 Ind. 170, 183 N.E. 312 (sponge left in abdomen); 

 Ciesiolka v. Selby (1970), 147 Ind. App. 396, 261 N.E.2d 95 (teflon mesh left in abdomen); 

 Klinger v. Caylor (1971),148 Ind. App. 508, 267 N.E.2d 848 (“surgical padding” left in intestinal tract); and  Burke v. Capello (1988), Ind.,520 N.E.2d 439 (cement left in hip). 

Likewise, in a similar fashion, res ipsa loquitur applied when a patient’s oxygen mask caught fire during surgery.  Cleary v.Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008). 

This same sort of common sense approach is endorsed in other jurisdictions as well.  See the following examples utilizing the common knowledge exception:
 Bernsden v. Johnson, 174 Kan. 230, 236-37, 255 P.2d 1033 (1953) (applying exception when post-surgery choking was caused by metal disc lodged in patient’s throat); 

 Biggs v. Cumberland County Hospital System, Inc., 69 N.C.App. 547, 317 S.E.2d 421 (1984) (where patient is known to be in weakened condition and is left alone in shower, where she falls, expert testimony on standards for nurse’s aides was not required); 

 Burks v. Christ Hosp., 19 Ohio St.2d 128, 131, 249 N.E.2d 829 (1969) (sedated, obese patient fell from hospital bed without side rails); 

 Cockerton v. Mercy Hospital Medical Center, 490 N.W.2d 856 (Iowa App.1992)(where patient fell while in x-ray room expert testimony was not required on hospital’s negligence); 

 Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711, 718, 683 N.E.2d 1175 (8th Dist.1996) (patient fell after student nurse left her unattended at her walker while opening a door); 

 German v. Nichopoulos, 577 S.W.2d 197, 202-03 (Tenn. Ct. App. 1978) overruled on other grounds by Seavers, 9 S.W.3d at 96; Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge); 

 Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164, 367 S.E.2d 453 (Ct. App. 1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient’s mouth); 

 Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001)(case in which the defendant dentist allegedly pulled the wrong tooth); 

 Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir.2003) (personnel failed to call treating physician to determine how often insulin was to be administered); 

 Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 349 A.2d 890 (1975)(expert testimony not required where nurse failed to respond to sedated patient’s call and patient got out of bed and fell); 

 Palanque v. Lambert-Woolley, 168 N.J. 398, 400, 774 A.2d 501 (2001)(misread the specimen identification numbers as plaintiff’s test result numbers and mistakenly determined that plaintiff had an ectopic pregnancy) 

 Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341 (Mo.App.1983) (expert testimony not required where bed rails not raised and brain damaged patient fell out); 

 Rule v. Cheeseman, Executrix, 181 Kan. 957, 963, 317 P.2d 472 (1957) (all four cases applying exception when sponge was left in patient after surgery); 

 Schraffenberger v. Persinger, Malik & Haaf, M.D.’s, Inc., 114 Ohio App.3d 263, 267,683 N.E.2d 60 (1st Dist.1996) (patient alleged that doctor negligently and erroneously informed him that he was sterile following a vasectomy); 

 Schwartz v. Abay, 26 Kan.App.2d 707, 995 P.2d 878 (1999) (applying exception where surgeon removed 60% of the wrong vertebral disc); 

 Thomas v. Dootson, 377 S.C. 293, 659 S.E.2d 253 (Ct. App. 2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen); 

 Veesart v. Community Hospital Asso., 211 Kan. 896, 508 P.2d 506 (1973) (expert evidence not required where elderly patient fell while going to bathroom); 

 Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989)(where bed rail left down contrary to doctor’s order and patient fell, no expert testimony required on standard of care); 

 Washington Hospital Center v. Martin, 454 A.2d 306 (D.C.App. 1982)(mere fact that patient falls in hospital will not normally require expert testimony on hospital’s negligence). 

It is important to know your state’s law on this point and plan accordingly.  Hopefully, the cases cited above are of use.

Discovery, Privacy, Personal Freedom and Social Media

I don’t see myself as a hero because what I’m doing is self-interested: I don’t want to live in a world where there’s no privacy and therefore no room for intellectual exploration and creativity. 

Edward Snowden

There is an assault on our privacy.  We need look no further than headlines involving Russian hacking of our government and political institutions such as story reported by The NY Times today. The assault on our client’s privacy is also underway as part of the civil discovery process.  Attorneys now seek to rummage through a client’s social media accounts and demand usernames and passwords to accomplish this invasion of privacy without any factual basis or good cause.

Fishing expeditions are not allowed. Here is the objection I use:

Objection, this request is overly broad and unduly burdensome. See Ind. T.R. 26(B)(1). Further, this request is non-specific and calls for a general fishing expedition which is prohibited under Indiana law in violation of the reasonable particularity requirement of Ind. T.R. 34(B). See Canfield v. Sandock, 563 N.E.2d 526 at 529-531(Ind. 1991). The simple fact that a claimant has had social communications is not necessarily probative of the issues in this case.  See Rozell v Ross-Holst,2006 WL 163143 (S.D.N.Y. Jan. 20, 2006).  There is no general right to have access to an entire Facebook account and such a request is no different than requesting the right to search through a party’s entire house, office, or wherever making the request a “fishing expedition”.  See also, McCann v. Harleysville Ins. Co. of New York , 78 A.D.2d 1524 (N.Y. A.D. 2010)(Defendant “failed to establish a factual predicate and essentially sought permission to conduct a fishing expedition into plaintiff’s Facebook account based on the mere hope of finding relevant evidence which is not allowed); Tompkins v. Detroit Metro. Airport, No. 10-10413, (E.D. Mich. Jan. 18, 2012)(Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view and engage in the proverbial fishing expedition, in the hope of finding something on a Facebook account.).

Social media may be discoverable “specifically “, but certainly should not be invaded “generally”. Privacy matters to us all and must be honored even in this day of pervasive electronic communications and connections.

Leaders, Loners and the Art of Jury Selection.

Often times you cannot eliminate troublesome jurors.  This can be a real problem since developing challenges for cause against an unfavorable juror can be difficult and at times impossible. In such cases, you want to use your peremptory challenges against such persons if they will affect the outcome of your case.

In federal 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.     

So how does one make the best use of their peremtory challenges?  Well if you cannot get rid of the juror for cause, then you have to figure out which jurors to focus on for purposes of exercising your peremptory challenges.  I suggest that you focus on persons who are either loners or leaders.  The bulk of people who make up juries are essentually followers.  They will tend to go with the flow.

Ultimately persons who are natural leaders will exercise the greatest influence over the juror’s deliberations.  It’s important to identify persons who either have leadership qualities or background traits which will lead other jurors to look to them for guidance. If a person has had prior jury service, then other jurors will naturally look to them for guidance as to what is happening in the court room and how to handle their deliberations. Likewise, persons who have assumed the role of leadership in either their profession or in outside organization will have the greatest likelihood of assuming a leadership role on the jury. Person who meet this criteria deserve special attention and need to be thoroughly questioned to make sure that they will not be a problem for your case.

Persons who are potential “loners” also need to be thoroughly questioned since they  could hold up deliberations or force an undesirable compromise. Loners have a tendency to stand their ground and be unwilling to compromise or conform to the wishes of the larger group.  I have had more than one jury where I have learned after the fact that a lone juror was a hold out for a particular verdict. Their staunch and unyielding position results in either a compromise verdict or a hung jury. When trying to identify a loner, you need to identify whether or not the person choses voluntarily to be a loner or is forced by circumstances to be a loner.   Those who voluntarily decide to be a loner, act as a nonconformist and set themselves apart from the rest of society, can be a potential problem. Such persons are used to standing alone and may hold out for a particular verdict even though their opinion is unpopular and outnumbered by others.

Ultimately, you want to use your peremtory challenges on persons who will likely effect the outcome of your jury’s deliberations in an adverse fashion. So first look for the “leaders” and “loners” in your next jury panel.

When silence is golden… The tacit admission.


Indiana Rule of Evidence 801(A) provides:
A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected to deny. The accusation must be made in the presence and hearing of the accused person, and the person must have an opportunity to respond. 16 INPRAC § 7.9d Criminal Procedure–Pretrial. A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected to deny. The accusation must be made in the presence and hearing of the accused person and the person must have an opportunity to respond. 12 Ind. Law Encyc., Evidence, §§ 135, 136; House v. State, 535 N.E.2d 103 (Ind. 1989)(held silence or equivocal response to assertion made by another, which would ordinarily be expected to be denied, is tacit admission, and the assertion and the words or conduct are admissible if reaction is not clear denial.), citing with approval to, Moredock v. State (1982), Ind., 441 N.E.2d 1372, 1374; Wickliffe v. State (1981), Ind., 424 N.E.2d 1007, 1009; Jethroe v. State (1974), 262 Ind. 505, 319 N.E.2d 133, 138–139. The chance to turn a person’s silence into a weapon should not be missed. It could be silence in the face of strong accusations made during the course of the meeting or even a judicial hearing. The key is to recognize situations which present themselves during the course of your investigation. The implied assertions for silence may be made during the course of custodial interrogation, during the course of a guilty plea or even during a sentencing hearing. Such instances may be pure gold for your case. So be alert.

 

Don’t Let Your Adversary Spoil Your Case.


Don’t let your opponent spoil your case by destroying or obfuscating evidence relevant to your case through spoliation of evidence. “First party” spoliation refers to spoliation of evidence by a party to the principal litigation, and “third party” spoliation refers to spoliation by a non-party. Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005). Indiana law “does not recognize an independent cause of action for intentional or negligent ‘first party’ spoliation of evidence.” Glotzbach v. Froman, 854 N.E.2d 337, 338 (Ind. 2006). If spoliation by a party to a lawsuit is proved, rules of evidence permit the jury to infer that the missing evidence was unfavorable to that party. Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000). Other potential sanctions for spoliation include further discovery, cost-shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal. Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 189 (Ind. 2011) (quotations omitted).
However, case law requires that you prove that the act is nearly intentional. In order to satisfy this high standard you need to send out preservation letters early and distribute them widely in order to create a sufficient paper record to establish circumstantial evidence of intent. 
Make sure the preservation letter reaches the opposing party, their insurer and attorney as early as possible. The relevant evidence to be preserved needs to be specially identified so there is no claim of ambiguity, mistake or accident. Early groundwork is needed to preserve evidence and make sure there are real consequences for its destruction by those who possess and control it. 

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.

FAST AND DIRTY JURY SELECTION

IMG_0484
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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