Trial lawyers are, by necessity if not by nature, an obsessive

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1 Your Honor, Stop Screwing Up My Voir Dire! Trial lawyers are, by necessity if not by nature, an obsessive lot. The glacial pace of civil dockets allows us ample time to analyze each aspect of our case from every perceivable angle. By the time we enter the courthouse on the morning of trial, we ve had plenty of time to thoroughly prepare, fine-tune, and practice our opening statement, the direct examinations, the cross examinations, and closing argument. The same cannot be said for jury selection, which is why it has always been the most nerve-wracking part of a trial to me. Unlike the other elements of a trial, voir dire isn t something we can write out in detail, edit to our heart s content, then practice repeatedly until the notes are nothing more than an unnecessary security blanket. The very fluidity of the process of talking with potential jurors makes my inner control freak a little bit crazy. When I attended the Trial Lawyer s College in 2001, one of the many lessons I learned was that my approach to voir dire needed a major overhaul. My trepidation when faced with the panel of potential jurors came from a misguided (but very prominent) old-school belief that the whole purpose of voir dire was to identify the jurors I needed to strike from the panel. My naïve hope was that I could somehow walk the tightrope and manage to do that in a way which was subtle enough to make it possible to spot the people I needed to get rid of before they had a chance to taint the other potential jurors with their poisonous views. The idea of actually tackling the most difficult issues head on was revolutionary to me, and I was eager to put it to the test. My first jury trial after leaving the Ranch was a criminal case. My client Ron was charged with aggravated battery, i.e. causing grievous bodily harm by the unlawful touching or striking of another against the will of the other. In preparing for by first TLC voir dire, I d had no problem identifying several issues about the case which troubled me. There was absolutely no question about the fact that Ron had beat the living daylights out of the alleged victim, Jerry. It was a good old-fashioned Friday night bar fight with at least thirty witnesses. Jerry owned the bar in which the fight occurred, and Jerry also happened to be the mayor of the small Idaho logging town where the trial was being held. Ron was dating Jerry s ex-wife Lori, and as Ron walked past him, Jerry asked Ron how whory Lori was doing, and the fight was on. The law, of course, doesn t recognize fighting words as justification for battery, so our defense was crafted on the ever-soslightly different theory that a person who says something like that has implicitly consented to being touched. After spending some time getting to know the jurors, I took a deep breath and said, One of the things that concerns me about Connie Henderson, TLC 01 this case is that there is no question that these two gentlemen got into a fistfight. I have to admit there is a part of me that thinks anyone who hits another person has committed a crime. Does anyone else feel that way? Instantly, several hands shot into the air. I had to remind myself that this was a good thing this is how it was supposed to work. The first juror I talked with said As far as I m concerned if he hit someone, he s guilty. I thanked the juror for his honesty and began talking with him about his feelings on the question, with the plan that I would open it up to the others and we would all explore this issue together. My hope was that we would eventually come to an agreement that it is indeed possible for a person to consent to getting into a fight. Things did not go as planned. Just as I was getting ready to ask whether any of the other jurors agreed with the view that it is always a crime to hit someone, the Judge stepped in. This Judge is 6 10 tall, and does not hesitate to use that fact to his advantage. He leaned over the bench and in his big, booming baritone voice said, If I instruct you that the defendant is innocent until proven guilty, you ll follow my orders, won t you? The juror said yes the jurors always say yes and (without thinking it through) I jumped up and objected to what the Judge was doing. I then proceeded to quickly learn Lesson #1: DON T RAISE THIS ISSUE FOR THE FIRST TIME IN THE PRESENCE OF THE JURORS It is not a good idea to explain to the Judge, in front of the jurors, that he shouldn t try to rehabilitate a juror who has expressed a bias. Needless to say, the Judge didn t agree with my analysis they ve been rehabilitating witnesses forever and he wasted absolutely no time at all putting me in my place. The jury panel watched as I was decisively smacked down, and from that point on, none of the other potential jurors were willing to admit to having any preconceived notions of any kind. They had seen what happened to the first juror, and to me, and they were wise enough not to expose themselves to the Judge s wrath. In short, my magical TLC voir dire went up in smoke. This was the beginning of my continuing search for a way to convince trial court judges they should stop interfering in the jury selection process. Realizing there had to be a better way, I went back to the drawing board. I did an exhaustive Westlaw search (see Westlaw key number 230K97(1), Jury, Competency of Jurors, Challenges, Objections, Bias and Prejudice) and combed through thousands of cases which discuss the propriety of attempts to 42 The Warrior Winter 2016

2 rehabilitate admittedly-biased jurors. I found a number of appellate cases which held that the trial court had abused its discretion in attempting to rehabilitate prospective jurors. Armed with these cases, my next trial brief included a lengthy section about the evils of juror rehabilitation, replete with quotes from cases all over the United States. The trial was a medical negligence case against the only clinic in a small town, and the Judge had denied our motion for change of venue. I fully expected that we would have great difficulty seating an impartial jury, especially if we could create an atmosphere that made it safe for them to honestly admit their reservations about entering a verdict against the people they relied on for their medical care. As is often the case, the Court scheduled the hearing on all pre-trial motions for the morning of the trial, and I learned Lesson #2: IF YOU WANT THE JUDGE TO TAKE THIS ISSUE SERIOUSLY, DON T BURY IT IN YOUR TRIAL BRIEF The most compelling argument about how improper it is for the Court to coerce potential jurors into pretending they can set aside their personal beliefs is not going to get the attention it deserves if it is included in a 27-page trial brief. 1 There, it simply gets lost in the midst of all the discussions of liability, causation, motions in limine, and other evidentiary issues. This problem is compounded by the fact that many courts schedule the hearing on any pre-trial issues for the morning of trial, which is simply too close to jury selection to allow time for the Judge to digest the rehabilitation issue. Those problems notwithstanding, this approach worked a little better. The Judge didn t rule on my motion to preclude attempts to rehabilitate any juror who expressed a bias, stating he would address the issue if and when it actually came up. When a potential juror said she thought she would have a hard time being fair and the Judge started to ask the typical questions they use to browbeat a juror into saying he or she will follow his instructions, I was able to simply lodge an objection based on our pre-trial motion, to preserve the record. This was a definite improvement over the first trial, when my objection came as a total surprise. The trial was not starting out with the jury in a ringside seat to a battle between me and the Judge which I would inevitably lose. The Judge didn t abandon the rehabilitation practice entirely, but he was much more restrained during the rest of the jury selection process, which eventually resulted in a mistrial because we could not find twelve people who could be truly impartial. The Judge recognized he should have granted the motion for change of venue. He moved the trial to another county and rescheduled it for the following month. I counted this as a win, of sorts, but we had to go to the significant expense of rescheduling all of our expert witnesses and gearing up for trial a second time. In reflecting on how to approach this differently, I realized it obviously would have been much better if I had raised the juror rehabilitation issue much earlier and in a stand-alone motion. The whole point in raising this issue pre-trial is to alert the Court to the fact that it needs to summon a larger pool of potential jurors. Only by doing that can we increase the possibility that we will be able to seat a truly impartial panel without having to coerce jurors into pretending they can and will set their beliefs aside. I finally started making progress when I realized I had to use some of the psychodramatic skills we learn at TLC and reverse roles with the Judge. Rather than just view the Judge as the enemy, I needed to explore WHY Judges insist on trying to talk jurors out of their admitted biases. In my initial attempts to engage in the role reversal, I had a hard time getting beyond the thought that it was nothing more than a power struggle between the Judge and what he saw as some upstart lawyer who thought she could come into HIS courtroom and tell HIM how to do his job. Eventually, I talked to a friend who is a magistrate, and he helped me understand a little more about where the Judges are coming from so I could be more effective in reversing roles. They are taught about the necessity of maintaining tight control of jury selection at the judicial college they are required to attend when they first take the bench. In addition to the obvious need to get the jury empaneled quickly so the trial can be concluded on time, they have to be mindful of judicial economy, which really boils down to dollars and cents. The court has to pay each of the potential jurors it summons, and while the amount paid per person is typically quite small, it adds up quickly when you have multiple trials going at any given time. Their goal is to keep the cost down by bringing in the smallest number of jurors possible. The overriding concern is that if they let one person who admits to being biased off the hook, all the other potential jurors will follow suit and they won t be able to seat a jury. When I was able to loosen the grip on my conviction that this was just an ego trip over who had control of the voir dire and look at the practicalities, it all began to make sense. While I had the luxury of being totally consumed with this one trial, the Judges have a calendar full of trials stretching far into the future. When I kept this in mind as I mentally reversed roles with the Judges, I could easily imagine the enormous pressure they are under to get each of the trials done within the time allotted. They are responsible for keeping the trial moving forward, and they simply can t allow it to be too easy to get off the jury. While I am still convinced that in most cases there is a heavy dose of black-robe ego involved, I believe that with few exceptions, the Judges know their job is to make sure the jurors are impartial and they want to do the right thing. My takeaway from this process was Lesson #3: DON T MAKE IT ABOUT THE JUDGE BEING WRONG Softening my approach has led to significantly more progress than my earlier efforts, which could generously be called a bit too strident. Rather than pointing a finger at the Judge and telling him how I think he needs to do his job, I approach it as a problem we all need to solve. No one can dispute the fact that jurors are required to be impartial, and everyone should be concerned about what we need to do to make it safe for jurors to be honest about their feelings and beliefs. Rather than focusing solely on the conduct of the Judge, I modified the briefing to ask that no one be allowed to try to rehabilitate a juror who has The Warrior Winter

3 expressed a bias. While this avoids a full frontal attack on the Judge, I was well aware of the fact that it also means I can t try to keep someone on the jury who has admitted to a bias which would benefit my client. That wasn t a huge loss, in my mind. Realistically, the insurance lobby has been so effective in spreading the tort reform message, it is extremely rare to come across a juror who has a pro-plaintiff bias. If that were to occur, all the rehabilitation in the world wouldn t accomplish anything more than assuring that person would be on the receiving end of a peremptory strike by the defendant. A motion precluding attempts to rehabilitate potential jurors to accomplish its purpose is most effective if heard well in advance of the trial. Talk to the Judge s judicial assistant to find out when they will make the decision on how many potential jurors to call, and have the motion scheduled to be heard before that date. I tell the Judge that I am filing the motion early so the court can call a large enough pool to assure it can excuse any juror who expresses a bias and still be able to seat a jury. Over the years, I have pared the motion down considerably, understanding that a Judge in Washington doesn t really care about how courts in Tennessee may have ruled on the issue of juror rehabilitation. The version of this motion I use in Washington civil cases is incorporated at the end of this article. I ve been filing this motion in one form or another for over 14 years, and it is rare for the defense to file anything more than token opposition, citing a few cases which ruled that rehabilitation wasn t an abuse of discretion and arguing that we ve always done it this way. At the hearing, I don t focus on discussing the facts of the cases cited in the motion. Instead, I talk about how it is essential that we all work together and do everything in our power to make the jurors know they can safely talk to us. I ask the Judge to put himself in the jurors shoes. While he is in the courtroom every single day, I ask him to imagine what it is like to be called into court when you are completely unfamiliar with the process. Imagine how intimidating the very setting must be, and then imagine that you are surrounded by strangers while other people you don t know ask you personal questions about your deepest beliefs. When you respond honestly, you then have an attorney or the court grilling you about whether you will be fair and put your beliefs aside. Being called on the carpet in front of everyone else brings up two of man s worst fears: public speaking, and public humiliation. I place a great deal of emphasis on the chilling effect the rehabilitation process will have on other potential jurors. Even though it is almost always possible to get a biased juror to say they will set their bias aside and be fair, watching that happen will inhibit the responses from other jurors. They aren t going to want to be exposed to that process, and will be much less likely to admit their biases. This means the attorneys won t even get the information needed to know how to exercise their peremptory challenges, and it also greatly increases the likelihood that we will end up seating jurors whose biases don t come out until deliberations. The Judges all know that their questioning of a juror will be grounds for reversal only if there is an abuse of discretion, which is almost an impossible standard to meet, but every state has many appellate cases saying that if a juror is seated who failed to disclose a bias during voir dire, a new trial must be granted for juror misconduct. The last thing anyone wants is to have to try the case again, and the only sure way to avoid that is to err on the side of excusing jurors who are biased. We all know that just saying the magic words doesn t make the prejudice go away, so once a juror admits to being biased, they need to be excused. Only by doing that can we assure that this case will be tried by an impartial jury, without concern that a retrial will be necessary because of a juror who failed to disclose his bias. To be clear, I ve never had a Judge issue an order precluding rehabilitation of jurors. Without exception, they have taken it under advisement and said they will address the issue at the trial if it becomes necessary. But filing this motion has made a difference. We have an open and honest discussion about the issue, and it is done in a non-confrontational way. At the trial, after my initial objection I ask for a standing objection to any efforts to rehabilitate, so the court knows we are laying the groundwork for an appeal. It has been my experience that after going through this process, Judges typically drastically reduce the amount of rehabilitation they do. We have even had one Judge who bragged at the end of voir dire about the fact that he didn t try to rehabilitate a single juror. The effort to get Judges to rethink their part in the jury selection process has been a long and rocky road, but I am convinced that it is a worthwhile journey. Having the latitude to talk openly with jurors about their feelings is absolutely essential if we are to use the skills we learned at TLC effectively to explore the tough issues in our cases. All we have to do is convince the Judges to get out of our way. q Endnote 1 Seriously, write a trial brief. Don t bring up ANY thorny issues for the first time during trial if you want to obtain a favorable ruling. EDITOR S NOTE: The author s Pre-Trial Brief on Juror Rehabilitation is reproduced on the following pages. Connie is a graduate of TLC 2001, and practices in Vancouver Washington in an all-tlc firm with her husband Paul Henderson (TLC 1996) and son Jordan Taylor (Death Penalty 2011). She enjoys hiking, rafting, camping, skiing, traveling, and playing with her grandchildren. 44 The Warrior Winter 2016

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