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.
FAST AND DIRTY JURY SELECTION
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.
Hot Coffee, Juror Bias and Fear of the Unknown
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
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.”
Jury Selection-What’s the Goal?
Of all the areas of trial work, this is probably the most difficult and important task that confronts a courtroom attorney. I have seen many different approaches used in questioning and selecting a jury. Your time is limited and the stakes are high. If you “guess’ incorrectly you can lose your case before it even begins. While there are several tasks to accomplish during jury voir dire, uncovering biases is the most important. The information gathered can be used to remove a potential juror for cause because of bias or the failure to satisfy the statutory requirements to sit and judge a case.
Grounds for cause can include the inability to read, see or hear, lack of English literacy, personal bias, preconceived opinions on a case that cannot be put aside, personal knowledge of the underlying facts or the parties, a family relationship to a party within so many degrees, and religious or ethical reasons that prohibit a person from sitting in judgment of another or rendering punishment. Most states have jury rules and/or statutes that outline grounds for excluding a juror for cause. You need to be familiar with them and be ready to specifically cite to the rules or statutes as needed. To this end, you really need to enlist the aid of the jurors themselves, especially where the Court has limited your time for questioning jurors.
I usually will say something like this early on in the selection process:
I have limited time to speak with you today and I may not be smart enough or have enough time, to ask the right questions to learn what I need to know about your background. I really need your help. I know it’s not easy to say for you to say that “there is something in my background that might not make me the best of person to sit on this type of case.” It takes a lot of courage to admit this sort of thing about yourself. So ask you to please help me and my client by letting me know if there is anything that you know of in your background that you think I should know. Please let me know if there is anything which could affect your ability even a little to sit as a juror in this case?
This usually will get people talking. I always compliment the person for their honesty and candor. I try to cover burdens of proof and make sure that the jury will not have a problem (even a little) in obeying the Court’s instructions and including money for all items of damage including pain and suffering or loss of services. I will also check for any areas of expertise that a witness might have which could come to bear and make sure that they will decide the case based upon the expert testimony in court and not be their own expert. This would be unfair because i would have no chance to question them or examine their opinion. I will usually ask something along the following lines to see if the juror’s expertise will pose a problem:
If our expert testifies to a principle or opinion which based upon your training or experience you know is incorrect, can you put aside your own personal knowledge and decide this case solely based upon the evidence presented in court? Would you be unable to ignore what you have learned outside the court room in decide what to do?
I also look for who the leaders are on the jury panel. They will either lead the others or hold out and hang your jury. You should look at the person’s education, job, civic involvement and standing in the community. I simply ask :
Have you ever held a position of leadership at work or as part of an organization or club?
Leaders are most likely to end up being the foreperson. As a federal judge once told me, if you can pick the foreperson, you can usually predict the verdict. Good luck in selecting your next jury. I hope these thoughts help you in selecting your next jury.