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Keep in Mind that Judges Are Only Human
So often I see attorneys lose sight of the fact judges are only human. This means one has to be mindful of what you can reasonably expect of a judge. Help a judge by:
1. Making your arguments or briefs short and succinct. Get to the point. Judge’s have limited time. Don’t cite ten cases when one is right on point. Less is more when you’re trying to win a judge over.
2. Be professional and respectful. Judges don’t want to referee a food fight. Address your remarks to the court, not opposing counsel. Avoid personal attacks on opposing counsel. Attack your opponent’s arguments, not their integrity. Such attacks grate on a judge and are rarely effective. Once you offend someone, you lose your ability to persuade them.
3. Don’t inundate a judge with more work than he has time to complete. If you have pretrial motions and exhibits the judge needs to review and rule upon, make sure they are presented sufficiently in advance of trial so the judge she can accurately rule upon them. Have the Court set reasonable deadlines for all involved. Otherwise, you are inviting errors in rulings or a sua sponte continuance of your trial.
4. Pre-mark exhibits and give the courtroom deputy an exhibit chart that identifies each exhibit by number or letter, description and has columns to show if it is marked and offered, as well as a column to show if it is admitted or excluded. Have sufficient exhibits for all jurors, court staff, the witness stand and opposing counsel. You will endear yourself to the court and it’s staff.
5. Show up early to court and always make sure you have witnesses there on time and in reserve. Judges hate to waste their time or the jury’s.
6. If you can anticipate potential issues that might arise, have a trial brief or a copy of a controlling case on hand for the judge and opposing counsel. If you are sure an issue will come up, you might want to submit your brief or authority early. Judges hate surprises.
7. Learn the judge’s courtroom procedures for jury selection, how juror strikes are handled, the proper location for questioning a witness and when and how you may approach a witness.
8. Provide a copy of your jury instructions in electronic form to the court so they can easily be edited.
9. Check with other attorneys who have tried a case with the judge and learn his preferences, weaknesses and biases.
I hope these tips are of use. Good luck in your next trial.
An Unforeseen Value to Loss of Consortium Claims in Selecting a Jury.
As a Plaintiff’s attorney you want to identify jurors who will refuse to follow the Court’s instructions directing the grant of money damages for pain and suffering. I inadvertently found something that is even more polarizing and controversial than claims for such intangible losses… Loss of consortium!
I was picking jury in a rural county and questioned jurors about our claim for loss of services, love and affection . My concern was that religious jurors might feel that when you marry someone it is for “better or worse, for richer or poorer, in sickness or health till death do you part” thereby disqualifying them for monetary compensation. I was also concerned that other people may consider it double dipping since the injured spouse would recover for interference with the marital relationship as part of their claim for loss of enjoyment of life.
To my surprise and the court’s, there were so many jurors who stated they could not follow the law on this point and were unable to fairly consider such a claim, that we nearly ran out of jurors to empanel.
So include a claim for loss of consortium when supported by the evidence. It may be your best barometer for finding and eliminating for cause, jurors who cannot follow their oath and fairly compensate your client and their spouse for all their harms and losses.
The Problem with Problems.
So do you want to know what the problem is with problems? Most people are like an ostrich with its head buried in the sand in fear of what they might see. We all have a tendency to ignore our problems and procrastinate. This is fatal thinking or à total lack of thinking.
Instead of waiting until the last second before the trial starts or the evening before your closing argument, look for problems as well as inspiration the first day the case comes into your office. Continue to hunt for inspiration and problems as the case progresses. Attorneys should not wait until the last moment to prepare their opening statement or closing argument. This is often too late and provides little time to use your creativity as an attorney and advocate for the client.
I always keep an electronic document with a list of inspirational quotes, analogies and arguments. I also have a list of potential problems and issues that I need to address as the case progresses through litigation towards trial. For example, if during the course of my client’s deposition unfavorable evidence arises about my client’s background or character, I make careful note of the same on my list of problems and issues so that I can deal with it at the time of trial.
So how do you deal with such problems? You may be able to exclude the evidence with a motion limine under Rules of Evidence 403, 404, 405, 608, 609 or 610, 702 or 802. If the problem can be addressed in jury instructions, research the law and carefully draft a proper instruction to submit to the court address the issue (such as pre-existing conditions).
If neither of these strategies has a chance of success, then I have to figure out a way to discuss the problem upfront and lessen the evidence’s impact with the jury. See my article: Direct Examination and Airing Your Dirty Laundry. Most evidence has a double edge to it. If the other side is engaging in character assignation point out the tactic and explain why the jury is being misdirected from the real issues in your case. See my article on Distraction, Misdirection and the Art of Verbal Jujitsu.
I will raise such problems during jury selection and find out which of the jurors cannot put the problem aside or deal with it fairly. If possible, I will get juror to admit that they cannot be a fair and impartial juror and then try to have them removed for cause or use a peremptory challenge to strike the juror from the venire.
I will raise the problem on direct examination and outline any mitigating circumstances favorable to my client and explain how the transgression occurred. I don’t wait for redirect and give my opponent the first shot at framing the issue.
Honesty, is the best policy in dealing with such problems. Remember, everyone is human and no one is perfect. The jury will understand if you admit your problems and you don’t run away from them. Just deal with it. Likewise, if I receive inspiration for a good argument, analogy or quote, I will send myself an e-mail or text message so that I don’t forget it.
So don’t let your problems, be the problem. Be proactive and creative. Do not procrastinate and brood.
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.
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.
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