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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.

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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.

FAST AND DIRTY JURY SELECTION

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

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

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

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

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

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

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

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

1. The type of claim. 

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

3. Vicarious liability or strict liability. 

4. Preexisting condition standard. 

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

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

 7. Outside knowledge of the parties or case. 

 8. Loss of consortium. 

 9. Civil litigation and frivolous claims or defenses. 

 10. Only chance to recover – future damages. 

11. Prior jury service 

12. Legal experiences or education. 

13. Medical experiences or education. 

14. Scientific or engineering training. 

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

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

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

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

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

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

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

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

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

 

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.

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.

Hot Coffee, Juror Bias and Fear of the Unknown

Hot Coffee
We have all heard about the infamous McDonald’s spilled coffee case as a supposed frivolous lawsuit resulting in a run-away-verdict. It is touted as the prime example of how corporate America has been victimized by juries and how the jury system is broken. However, this was not the case. In fact, Stella Liebeck, the little old lady from Albuquerque, New Mexico, was severely burned as a result of a long-standing problem with McDonalds serving coffee at temperatures known to cause severe burns in customers. This wasn’t their first rodeo. Other claims and lawsuits had been brought as a result of McDonald’s policy of serving coffee at unsafe temperatures. Normally, our fellow citizens sitting on juries reach verdicts fairly and for reasons demonstrated by evidence in the court room. Unfortunately, our sound bite era does not allow for the whole truth to be conveyed.

Another case that often results in cries of foul is the O.J. Simpson murder trial and its verdict of not guilty. Jurors are criticized for the outcome of the case. As a casual observer, I questioned how the jurors could have reached such a verdict. However, once again there was more to the story than we could appreciate from afar with a few minutes devoted to the news each evening. First of all, Mark Fuhrman, one of the lead detectives committed perjury by testifying that he had never ever used the n-word in the past ten years giving rise to questions of bias and a lack of credibility. F. Lee Bailey brilliantly anchored and locked in his testimony so that Fuhrman could not escape by claiming this was a mistake or innocent misstatement. Second, some of the blood evidence collected was called into question when discrepancies arose, such as chemical preservatives used by the police when collecting samples, were found to be present in some of the blood collected by the police at O.J. Simpson’s residence and elsewhere. The defense suggested in their opening statement that the police had planted this evidence, using known blood samples from Nicole Brown Simpson and O.J. Simpson. The police had collected these known blood samples in test tubes containing the preservative EDTA. The presence of EDTA in blood collected by police at O.J. Simpson’s residence and elsewhere lead to the inference that the blood was collected in tubes from the crime scene and then later deposited at the Simpson residence when it was searched by police. Finally, strategic errors were made by the prosecution as to the venue of the trial and the glove demonstration [Remember: “If it doesn’t fit, you must acquit.”]. Such evidence raised “reasons” to “doubt” the integrity of the whole police investigation. It was not necessary to show that O.J. was innocent to receive a not guilty verdict. The defense had to only raise “reasonable doubts” in the minds of the jurors to prevail. When looking at the whole picture presented by the case, it is easy to see how the jury could have doubted the integrity of the entire process and questioned whether they could trust the evidence enough to find O.J. guilty beyond a reasonable doubt.

When dealing with jury selection, it is important to get jurors talking about their thoughts and prejudices without fear that you will ridicule or judge them. There is a lot of misinformation and misunderstandings by the public that could hurt your client. This means that you need to get jurors talking openly and without hesitation. You have to fearlessly approach jurors with an open mind and heart. David Ball, a noted jury expert, has preached this approach in his book, David Ball on Damages III. He notes in his book that renowned trial attorney, Gerry Spence, will approach jurors with a question like this:

“Good morning folks, I’m here on behalf of my client. This is when I get to ask you some questions for jury selection, but before the usual questions, some things worry me that I need to ask you about. We’ve all been hearing a lot lately about legal reform, tort reform, verdicts being too high, lawyers taking advantage, frivolous lawsuits, verdicts hurting businesses, hurting medical care, and all those things. We need to know how people feel about these things. If you could please tell me what if anything bothers you about what’s going on?”

He then proceeds to get each juror to talk openly about their problems or baggage they bring to the case. My own approach to this problem goes something like this:

Is there anything I missed? [pause – looking at the panel]. That’s my greatest fear, you know. 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 case with an open mind. Is there anything I should know about your background that you are aware of, that if you were in my client’s shoes here, you would want me to know about you? Is there anything you would want me to know about your opinions, beliefs or philosophy that I have not asked about, that if you were my client, you would want me to know?

I have had many a juror reveal important information that lead to them being struck for cause or motivated the potential juror to concede that this was not the right case for them to serve on as a fair and impartial juror.

So get them talking next time you do jury selection. The bottom line is that you must let go of your fear of the unknown, because what you don’t know can hurt both you and your client.

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.”

The Trial Notebook: Being Prepared for “Unexpected” Legal Issues During Trial

During the course of a trial have you ever had an ” unexpected” legal issues arise and say, I know there is a case or rule out there on point, but I just cannot remember it? The best way to prepare for such issues is to keep a trial notebook.

20111004-081849.jpg What is a trial notebook you may ask? Well my trial notebook represents twenty plus years of knowledge I have gained from my research, review of advance sheets, jury selection issues, trial procedure and evidentiary issues. I keep a three-ring binder with lettered tabs from A to Z. I use re-enforced three-ring paper and make notes on matters I come across which might arise during a trial and then file them under the right heading and index it under the proper lettered tab. Below is an example of such a note I have listed alphabetically under “P” in my trial notebook:

Privilege – Work Product – I.D. of Witness Statements

An interrogatory invades the thought processes of counsel, and tends to reveal the detailed pattern of investigation conducted by the counsel by asking for the names and addresses of all persons interviewed by counsel. It has been held that such information is protected by the work product privilege and T.R. 26. See generally, United States v. Renault,Inc. (1960), S.D.N.Y. 26 F.R.D. 23. Massachusetts v. First National Supermarkets, Inc. (1986) D. Mass., 112 F.R.D. 149, 152-153.

I especially concentrate on areas involving discovery issues, jury selection, evidentiary foundations, privilege, hearsay, relevancy, authentication, jury instructions, motion in limine topics, procedural issues and motions for directed verdict as these issues can arise during the course of a trial with little or no time for research. A judge will be duly impressed with your ability to rapidly address such issues. Start today and begin keeping your trial notebook. It will make you a better advocate and attorney. Before you know it you will be able to cite actual authority for your legal position at a moment’s notice.
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