-2- occupation, race, nationality, religion, age and sex. These are the "rules of thumb" to be used when no other information is available.

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Emil Turner
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1 CHOOSING YOUR JURY There are those who believe that the facts of the case and the skill of the advocate solely determines the outcome of the trial. For them, any group of seven jurors is as good as any other. However, most trial lawyers believe that the nature of the individual jurors is a significant factor not only in the success of the case, but also in the size of the award. If this is so, how can the trial lawyer decide which potential juror is so undesirable as to merit the use of one of the four precious peremptory challenges? While civil jury trials remain relatively rare in Canada, they are very common in the united states. As a result, there is a wealth of u.s. material on jury selection including a number of text books devoted exclusively to the selection process. Much of this must be read with caution since the process for civil jury selection in the u.s. is significantly different in Canada. As the O.J. Simpson hearings have shown us, American jurors can be subject to a lengthy examination by counsel before being selected as part of the jury panel. While we are much more limited in the ability to identify jurors who will be sympathetic to our client's position, we can use some of the American wisdom. There is great debate in the u.s. as to the best approach to jury selection. One school favours the use of demographics; another, jury investigation, and a third, a "scientific" approach. A. THE DEMOGRAPHICS APPROACH By this method, the trial lawyer assesses juror desirability using generalizations or conventional wisdom about individual jurors based on such factors as the juror's

2 -2- occupation, race, nationality, religion, age and sex. These are the "rules of thumb" to be used when no other information is available. The advantage to using the demographic approach is that it is cheap and easy. The obvious disadvantage is that it is unreliable. Not only may the generalizations be inaccurate, the individual may not fit the stereotype. You could have a wild and crazy accountant or a free thinking lawyer! Two further words of caution should be given. Firstly, the generalizations are based on American society. While Canadian culture is very similar to the U.S., there are enough differences that the stereotypes should be carefully considered. Secondly, these rules of thumb have developed over many years, years in which society has changed and evolved. Can we expect the same attitudes from women in the 90's as in the 60's? Do the grandchildren and great grandchildren of immigrants still retain the old cultural values? Despite these doubts, many believe that the following factors are significant. others consider them hogwash. The list should come with a "viewer warning" since many are very politically incorrect. Decide for yourself if they should be given weight. 1. Personal Characteristics (a) History of Injury - Jurors who themselves have been injured are generally good for the plaintiff. They better appreciate pain and suffering. However, plaintiffs should avoid a juror who has had the same type of injury or a similar accident without injury, especially soft tissue.

3 -3- (b) The Physically Infirm - The conventional wisdom is that the physically infirm are either very good or very bad for the plaintiff. They will either be sympathetic or sour. If the infirmity is very serious, they may not be impressed with the plaintiff's injury. (c) Prior Jury Experience - Those who have previously sat on juries tend to favour the defendant. Cd) Intelligence and Education - While those with low levels of education tend to favour the plaintiff, the well educated are more likely to award high damages. The well educated also tend to be less biased in favour of their own ethnic group. (e) strength of will - The strong willed can be dangerous because they tend to dominate and influence others. Most writers believe the risks of such a person outweigh the benefits of having them on your side. James Golbert, in his text, Jury Selection-The Law, Art and Science of Selecting a Jury writes:. it is acceptable, indeed desirable, to have a jury of one if that one is strongly supportive of the client's position. The general appeal of the client's case to the average juror is an important factor. Where the client's position is likely to have widespread appeal, the lawyer would prefer not to have strong-willed leaders on the jury in cases where the client's position is unlikely to appeal to most jurors, on the other hand, it may be an acceptable risk to take a chance on the strong leader whose leadings are unknown but who may be inclined to be sympathetic. A strong-willed individual can be spotted by details of his or her occupation, body language and the amount and type of

4 -4- interaction had with other panel members before the selection process and during any breaks. 2. Occupation Plaintiffs should look for those with either high or low incomes. Defendants generally favour middle income earners except for blue collar workers, government workers and office workers. Plaintiffs should avoid, and defendants seek, those with jobs that are very detail oriented such as accountants, bankers, scientists or technicians. Those who enforce discipline such as police and armed forces personnel and those who are involved in claims such as adjusters lean toward the defence. Those with expert knowledge in an area relevant to the case tend to rely on their experience rather than the evidence. People whose occupations requires the giving of advice, such as teachers, lawyers and social workers, tend to be opinionated and aggressive. The retired and those who are long time employees of a single employer tend to be conservative. spouse's occupation. A housewife is said to reflect the opinions of her 3. Personality Happy, outgoing people are to be favoured by plaintiffs. The grouchy and hot tempered are favoured by the

5 -5- defence. oriented. Authoritarians and rigid thinkers are also defence Athletic persons are thought to lack compassion. A person's manner of dress can give important clues to personality. Conservative dressers tend to favour the defence, while those dressed casually favour the plaintiff. The immaculate dresser is thought to insist on perfection in matters of proof and lack compassion. A flashy dresser resents authority. Those who wear lapel pins (flags, service clubs, etc.) are conservative and favour the defence. 4. Race and Nationality People tend to favour those of the same race or national derivation as themselves. This factor may be used not only with respect to your client, but also with respect to any of your key witnesses. Blacks are supposed to be pro-plaintiff as are the Irish, Jews, Eastern Europeans and those from countries that border the Mediterranean. Those from Northern Europe as well as the Portugese, Russians and Japanese are said to favour the defendant. the majority. Individuals from small minorities tend to go along with 5. Religion

6 -6- While the influence of religion is declining, the following are still thought to be true. All religious fanatics as well as fundamentalist Christians and, to a lesser extent, Baptists, Anglicans and Lutherans are defence oriented. Jews, Catholics and adherents of minority religions are thought to be good for the plaintiff. Those who are agnostic or atheists are considered liberal in their attitude and probably favourable for the plaintiff. It is also important to determine if a potential juror's religion has any belief contrary to a key feature of the lawsuit or even contrary to lawsuits in general. 6. Age Age is not thought to be a factor for those between 30 and 50 years. For others, life experiences should be considered as well as chronological age. Jurors over 50 are considered to be more conservative, more sympathetic to the injured, award lower damages, display more leadership and be less likely to support new legal theories. Younger jurors tend to have less respect for authority, be less sympathetic to pain and suffering, but award greater damage when satisfied of its existence. 7. Sex Both sexes are influenced by physically attractive members of the opposite sex and both are less forgiving of members of their own sex.

7 -7- Women are thought to be more compassionate towards the young and minorities and are more sympathetic to pain and suffering. 8. Marital status The conventional wisdom is that happily married people, especially those with families, are favourable to the Plaintiff. Confirmed singles are thought to favour the defence. One author suggests that recently divorced females are good for the defence since they are probably not in a compassionate mood. Of these 8 factors, the first 4 (personal characteristics, occupation, personality, race and nationality) are thought to be the most important. Religion, sex and age are thought to be moderately important and marital status only slightly significant. A good summary of these statements of conventional wisdom is found in The Art of selecting a Jury by Robert Wenke which is on the next page.

8 -8- Pro Plaintiff Lean towards choosing the following: Persons with the same ethnic background or the same occupation as the plaintiff Inexperienced Jurors Person with an urban rather than an rural background Jurors whose sex is opposite that of the client Persons from racial minorities (this is not a significant plus factor if the persons hold white collar positions) Those of Southern European extraction Emotional, warm, friendly, open-minded people who laugh Middle aged or young persons with long hair Liberals (note appearances) People with artistic occupations Highly paid executives Blue collar workers or their wives Happily married persons Parents Relatively unskilled government workers union activists Unemployed or downtrodden persons JUROR CHECKLIST Pro Defendant Lean towards choosing the following: Those of Northern European extraction Experienced jurors caucasians (WASPs) Conservatives (note appearances) Owners of small business and the self-employed Persons engaged in technical or precise occupations or trades or in a profession Elderly or retired persons Physically and mentally tough individuals, those with stern constanances Childless persons Non artistic individuals People who deal with claims and claimants (adjusters, doctors, nurses) People who have witnessed a great deal of suffering Introspective people

9 -9- B. JUROR INVESTIGATION METHOD since routine questioning of jurors is not a part of the Canadian system, it is difficult to apply even the demographic stereotypes without pretrial preparation. Walking in cold, the trial lawyer will have nothing to go on but the apparent ethnicity of the juror's name and his or her appearance. The ability of a party to question a juror on a challenge for cause has recently been considered by Justice Saunders of our Supreme Court in Peddle v. Rowan Companies (1993) 123 N.S.R.{2d)24. In that case, the defendant sought leave to challenge the jurors for cause and the ability to ask a series of questions to each juror. Rule 34.07(2) was considered: Any party may challenge a juror for cause and the burden is on the party to state and establish the cause. Justice Saunders ruled that while the trial judge does have authority to allow such questions, it should be exercised only where the party requesting has discharged the burden of stating and establishing the cause. At page 29 he said: It seems to me there would have to be a level of persuasion before any judge would go on to permit a party to challenge for cause. A court would have to have some evidence before it substantiating the reason and establishing the cause before permitting counsel to ask a series of questions designed to probe the issue of impartiality. The rule says that the burden is on the party seeking to right to state and establish the cause. While one might expect the situation to arise only occasionally, there may well be cases which commend such an approach. These are cases with such a degree of publicity surrounding them that challenging for cause may be warranted. Affidavit evidence would

10 -10- be filed to support or challenge the request. But here no evidence was presented as to what the cause is or might be. In the absence of such evidence I am not prepared to cross that threshold or entertain the suggestion that questions similar to such as would be asked in a criminal trial should be countenanced here. Thus, an alternate method of jury investigation is essential. The nature and extent of that investigation depends upon the economics of the case. At the least, one should circulate the jury list around your own office to obtain as much information as possible about the individual jurors. In the states, many lawyers retain private investigators to research the backgrounds of prospective jurors. The investigations usually involve contacting friends, neighbours and associates to obtain background information and a prediction of a juror's opinions and biases. This can also be done by contacting individuals with a great knowledge of the community. Be careful how far the investigation goes. Ethical boundaries may be crossed, especially if the juror is contacted "directly". The juror investigation method essentially gives expanded information to implement the demographic stereotypes and may unearth specific information relevant to the case. C. SCIENTIFIC SELECTION This approach is undoubtedly the most helpful, but is also undoubtedly the most expensive. It will be a rare case that can bear the cost of the Scientific Method of jury selection. In this method, information is gathered not on the specific jury panel, but instead on the members of the community from which the panel will be selected. It employs opinion

11 -11- polling and statistical analyses to determine a profile of juror favourability. To a certain extent, it is a highly specific stereotypical approach. However, it does take into account the uniqueness of the particular area from which the jurors are drawn and has the capacity to determine the relative importance of and interactions among the various factors. The method was first used in the Harrisburg 7 trial in the early 70's and improved in a number of high profile trials thereafter. The process is complex. First, questionnaires must be developed by a social scientist after being informed of the general theory of the case. The first section contains attitudinal questions including those designed to identify an authoritarian personality and opinions concerning general issues such as personal injury claims and monetary awards. The second section of the questionnaire addresses case specific attitudes giving hypothetical case descriptions. The final section is concerned with the demographic characteristics of the individual. The next step is the conduct of the survey itself followed by a statistical analysis. The analysis involves identifying factors relevant to predicting juror behaviour. Then, the various factors are put on a scale of relative significance to measure "favourability". An equation composed of a number of factors is developed. For instance, one might predict that juror favourability is dependant upon the three factors of education, race and age, where education is weighted by a factor of 15, race by a factor of 35 and age by a factor of 9. This scientific approach is said to have many advantages. It accounts for regional differences. It allows for the assessment of critical attitudes and opinions without having to question individual jurors. It can (and must) be undertaken

12 -12- well in advance of trial. Finally, it can highlight the strengths and weaknesses of your case. The main disadvantage is cost. A 1987 American text indicates that the cost of these projects ranges from $35,000 to $50,000 or more, depending on the projectts scope. Summary While most experts agree that the scientific method produces the best guidelines for jury selection, it is not widely used and is very expensive. In most cases, trial lawyers fall back on the application of conventional wisdom or stereotypes supplemented somewhat by knowledge of the individual jurors. Regardless of the approach taken, jury selection is an exciting process with which to start a trial.

13 Reference Material : Blue, Lisa A., Jury Selection in a civil Case (1991), 21 Trial Lawyers Quarterly 11. Frederick, Jeffrey" The Psychology of the American Jury, 1987, The Michie Company Gobert, James and Jordon, Walter, Jury Selection; The Law, Art, and Science of Selecting a Jury (2d ed.), 1990, McGraw-Hill Inc. Wenke, Robert A., The Art of Selecting a Jury (2d ed.) 1989, Charles C. Thomas Publisher.

14 BIOGRAPHY JOHN T. RAFFERTY, Q.C., is a partner in the Truro office of Burchell MacDougall. He practices in the areas of civil litigation, insurance, administrative, labour and employment law. He is Deputy Solicitor for Town of Truro. He serves as a Council Member of the Nova Scotia Barristers' Society and is Chair of the Nova scotia Barristers Liability Claims Fund.

PRETRIAL INSTRUCTIONS. CACI No. 100

PRETRIAL INSTRUCTIONS. CACI No. 100 PRETRIAL INSTRUCTIONS CACI No. 100 You have now been sworn as jurors in this case. I want to impress on you the seriousness and importance of serving on a jury. Trial by jury is a fundamental right in