SECTION 14 JURY SELECTION

Transcription

1 SECTION 14 JURY SELECTION

2 JURY SELECTION FACT PATTERN Raphael Hernandez and his fellow workers were working on replacing the skin on a 1930 s 10-unit condominium building. He was on the 3 rd level of the 5-tier scaffold when it suddenly pulled away from the building and completely collapsed sending him down to the construction sight that had cement and sand mixers and rubble. The 4 th and 5 th tiers of the scaffold followed Raphael burying him with the heavy wooden planks. Raphael was found unconscious, bleeding and battered. He was taken to the nearest emergency facility. His injuries were severe. He sustained head trauma that was diagnosed as a moderate brain injury. His spine was injured at L-5 and L-6 that required 2 surgeries and extensive physical therapy. His doctors said that he mostly likely would not be able to do the same type of work that he has done over the past 12 years. His doctors are also concerned about his mental capacity to hold down any employment. Plaintiff Hernandez sued McCarthy & Sons Construction; Rodgers Scaffolding Company. Causes of Action: Negligence Premise Liability Loss of Consortium Damages Loss of Employment Loss of Income Medical Pain and suffering Facts and Nuances: 1.) The construction company rented and set-up the scaffolding. 2.) There were a number of comments and concerns about the condition of the scaffolding made by the crew to the construction manager. 3.) The scaffolding company settled out right before jury selection. 4.) The scaffolding company had prior injuries related to the work sites and scaffolding. 5.) Raphael was known for taking chances and cutting corners to get the job done faster. 6.) Raphael s wife Lauren James Michael has sued for loss of consortium.

3 JURY QUESTIONNAIRES By Geoffrey Wells A jury questionnaire is a great way to get jurors to open up about themselves in a more detailed way than they would communicate in open court in front of strangers during jury selection. I always have a qualified jury consultant help me with my questionnaire. Although the questionnaire takes time for the jurors to fill out, it really does provide meaningful information and is an efficient use of the court s time. Hopefully, the lawyers armed with the information gleaned from the questionnaire can spend less time in open court asking questions of the voir dire panel. Since the process of jury selection is also a process of de-selection, many times the questionnaire answers can be used by both sides to get rid of jurors who cannot or should not sit on their particular civil case. Often times, I have been able to go to opposing counsel and agree to stipulate to allow an obvious problem juror to be let go so that the court and the counsel do not have to waste time questioning that juror. Obviously, the questionnaire can be used to identify the jurors who have a specific agenda. Many times, I look for jurors who have a tort reform agenda that can usually be identified by asking the three questions below: A. Which statement best describes your views about lawsuits: 1. Jury awards are almost always too high and excessive 2. Jury awards are usually about right 3. Jury awards are too low B. These are too many lawsuits and they are costing us too much money Strongly agree Agree Strongly disagree Please explain your answer C. Jury verdicts are a good way to hold corporations accountable for their actions: Strongly agree Agree Strongly disagree No opinion However, the responses still need to be followed up upon with questions by the handling trial attorney. Sometimes a juror who appears to be a tort reformer actually is open to hearing the case and might be fair to both sides. Sometimes a juror who appears to be very fair on tort reform actually is not fair and would not be open to hearing both sides of the case. The attorney must probe these jurors to get more information in open court as to why they feel a certain way. Perhaps, they have read an article about the McDonald s coffee case or some other high profile case that seems to polarize some jurors. The attorney needs to find out if the potential juror s thoughts set forth in the questionnaire are part of their core values. If the juror, through questioning in court after filling out the questionnaire, reveals that they have core values reflecting that they are not open to awarding general damages, then you need to get rid of that juror. However, if the potential juror has an opinion based upon what he/she has heard

4 about through the newspaper or social media, many times that juror would be one who could be a fair juror on your case. The attorney is never going to persuade or modify a potential juror s core values and opinions. If the juror feels so strongly about an issue in your case, don t waste your time trying to convince them that they are wrong. Move on to the others who might not have such an opinion on a topic such as general damages for pain and suffering. If you can develop a meaningful response from them on the issues that are important in your case, then you might be able to live with this type of juror. Never use the questionnaire responses to argue with a juror or try to pre-condition a jury during voir dire. It is a waste of your time and most judges these days are tight with time during jury selection. In my experience, I have found that the judges want voir dire to go faster if you are allowed to use a questionnaire. Sometimes this is not possible because there is more information on the questionnaire that needs to be covered. If you run into this situation, I think you need to explain it to the judge ahead of time before you start questioning the jurors so that the judge has a heads up on the issues. I have found that the jury questionnaire is especially important when you have an issue such as drugs, alcohol, immigration status, race or ethnicity. Many times, people have strong opinions on these issues but are unwilling to state them in open court in front of others. However, I have found that jurors are much more likely to write about their personal feelings about these issues in a questionnaire. If you have specific tension issues that you think people will be uncomfortable talking about in an open forum, make sure you cover these issues in your questionnaire. Always include some questions about the types of damages that are going to be requested in your case. These days, potential jurors might have very strong feelings about damages for pain and suffering or wrongful death. You need to have questions on your questionnaire about those issues so that you can find out who in fact might be unable to be fair in a case involving general damages and/or wrongful death. Don t make the questionnaire too long. I have found that 8-10 pages is usually the maximum for both cases. Obviously, there are exceptions but usually 8-10 pages of questions should be enough to get a juror talking and get a good feel for what type of person they are and whether or not they would be good for your case. Another practical point is getting copies of the questionnaire made and distributed to all counsel. I have found that it is best to do the questionnaire one day and have the copies made that night or afternoon. These can then be distributed to all counsel before the next day s juror questioning. I have found that it is also important to make sure the judge has a copy of any questionnaire and that the questionnaires are numbered sequentially so that everyone can find a particular questionnaire if they need to during the voir dire process. In the use of a questionnaire, it is very important that the court, if they are using a random voir dire selection list, provide that to all counsel ahead of time so that they can put the juror questionnaires in the same order that they are going to be used to call up on the jury panel in the voir dire section. Usually the court will be willing to do this and can see the logic in having all the questionnaires put in order before the actual questioning process begins. Additionally, it is very important that you have the questionnaires in an orderly fashion so that you are not fumbling around trying to find questionnaires during voir dire. The last thing anyone wants is for all the attorneys to be fumbling around in a box of questionnaires trying to find somebody s questionnaire answers.

5 If you have a case where the judge will not let you use a questionnaire, be sure and incorporate on a board or on a power point the tort reform questions that are listed above. Usually all judges will allow you to ask questions about bias and tort reform questions in open court even if you cannot use the questionnaire at trial.

6 THERE MIGHT BE JUST ENOUGH TIME: 20-MINUTE VOIR DIRE By Christa Haggai Ramey My favorite part of trial is when we begin. I wake up that morning of the first day with a spring in my step. I am prepared! I know my case! I believe in my client! The unknown is who will decide the fate of my client s claims. But I can control this, if I am prepared to conduct the most effective voir dire no matter what the limits. Voir Dire is the trial lawyer s first and only opportunity to speak with jurors and get a sense of how they will receive and view the evidence in our client s case. Will they be biased? Do they have closely held beliefs that will prevent them from being a fair and impartial juror? It is scary to think that arbitrary time limits could be placed upon us and our client so that we are unable to discover the biases that might exist. The Code of Civil Procedure, section provides that in order to select a fair and impartial jury counsel shall have the right to question prospective jurors. Further, [d]uring any examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case. (Code Civ. Proc., ) What is more, this section provides that there should not be arbitrary time limits or a blanket time limit policy regarding the length of time for the parties to vior dire the prospective jurors. (Ibid.) So if the law is this clear, why are we given limits? In my view, whenever we are told we will have a certain amount of time to do something, regardless of the facts of our cases, the limitations are likely arbitrary. But, sometimes the time limits imposed in voir dire by the judge are our own fault. In this regard, we must make sure that we are educating our trial judge of the nature and relative complexity of our cases. Since in most personal injury cases in Los Angeles County we no longer have the same judge from the beginning of the case through trial, we must make sure our trial judge is aware of any complex issues that would require additional time on vior dire. If this education of the issues is done properly, we might be able to get the additional time we need. Bottom line is don t accept the arbitrary time limitations without a fight. There are several things we can do to ensure that our judge is aware of our unique issues. First, we should be doing trial briefs. I am not saying that in every automobile versus automobile case, we should be doing a trial brief. Nevertheless, some automobile cases are more complex and will require a trial brief to adequately inform the court of the issues at trial. For example, cases with multiple vehicles and disputed liability might require some additional time on voir dire. Additionally, there are many categories of cases that always require a trial brief. You should be thinking whether there are facts in your case that will invoke biases, strong views, or controversy. If so, you need to do everything in your power to get that additional time. In this regard, here are some examples of cases where a trial brief might be helpful in getting that additional time. Medical malpractice cases: In these cases, most people have strong views one way or the other about people suing doctors. Tort reform advocates target these types of cases. People falsely believe that a verdict in favor of a plaintiff will result in their own health insurance or medical costs rising. Further, these cases also involve complex medical issues in many cases. Because of this, many jurors will trust a doctor s judgment. Pedestrian cases: There can be many different types of pedestrian cases that will create all sorts of issues. For example, dart-out cases, unmarked crosswalk, or jay walking cases create issues that need to be explored in voir dire.

7 Government Liability: Like medical malpractice cases, jurors are often worried about who will pay for the damages to the plaintiff. Will this cause their taxes to rise? Motorcycle cases: It goes without saying that lane splitting is a subject of great debate in California. There are also issues of modifications on bikes and helmets. Many jurors just don t like motorcycles. They think they are inherently dangerous. These biases need to be discovered. Immigration status: When a plaintiff is an undocumented immigrant there are clear issues of bias that need to be explored with jurors. Oftentimes jurors are reluctant to tell you about these sorts of biases. Therefore, significant time needs to be spent probing jurors on biases that they might not even know they have. Molestation or abuse cases: Some folks are very uncomfortable even hearing this evidence. You need to determine if folks can handle hearing this evidence and if they can fairly decide the case. Some folks are predisposed to not believe a victim. Clearly time is needed to explore these issues. There are a lot more case types that will require a full and fair opportunity to discover the biases jurors may have e.g., drugs, alcohol, police misconduct, employment cases, and the list goes on. If we do a good trial brief alerting the trial court to these issues, we are in a better position to get the additional time we need. If you are doing a good job educating the court on these issues, you are in a better position to have the time you need to examine the jurors thoroughly. Most judges are not going to be arbitrary on time limitations if you have informed the judge of the potential issues necessary to explore with the jury pool. After doing everything you possibly can do to give the court enough information on the complexities of your case, there still may be instances of time limitations; a 45 minute time limit is the most common. However, more and more frequent are even more restrictive time limitations, generally 20 or 30 minutes. What do you do once you are that restricted to time? Get Them Talking How do you get a room full of people to share their views with you on sensitive topics? And, how do you do it quickly? I believe this can be a personal thing. Some attorneys naturally are better at this than others. I believe that I am successful for several reasons. First, be friendly! Don t be argumentative with potential jurors or everyone will shut up. Second, ask open-ended questions. Once you start getting responses to jurors begin to probe. Some people think that jury awards are too big. Do any of you have any thoughts about this subject? Then follow up What are your thoughts and opinions? Explain that too me. Make sure that you are getting the information you need. But, in doing so, let them do the talking. Many attorneys fear asking probing questions. It is more comfortable to get short answers and move on. However, if you go this way, you will miss out on important information you need to evaluate each juror. Next, raise your hand. Seriously raise your hand. Show them what you want them to do after you ask your questions. Let them know early on that you need to hear from them. As you are listening to their responses to your questions, nod your head and keep eye contact. Let them know that their views are important. Give them the comfort that they will not be judged for providing you those views.

8 Remember to Listen Let's face it, lawyers like to hear themselves talk. But, we know great attorneys are good listeners. Listening is where you will learn the most. This is just as true with witnesses as it is with jurors. I do most of my talking in the first 30 seconds to 1 minute of any voir dire. This is a brief introduction on why I get to ask them questions in the first place. I also try to help them understand the importance of sharing their views. In this regard, I share with them that biases are not bad. We all have a predisposition to believe certain things. I believe that my daughter will be the smartest and prettiest girl in her freshman class at the University of South Carolina this coming year. Well, I am sure that every other mom of any incoming freshman feels differently than me. And, that is fine. I have a bias. Biases are not necessarily a bad thing at all. I let them know it is okay to talk. Then I listen. Early in my career, I wasn t as good at this. When a juror would say something I disagreed with, it was my instinct to want to persuade them to change their opinion. Well that is never going to work. The juror does not know me or trust me. I just needed to listen to their views, getting them to say enough to allow me to successfully challenge them for cause. Be Smart Don t waste time on areas that will not help you determine a juror s biases. In other words, think about your topics to hit on. It might also be a good idea to have the judge hit sensitive topics. This will help you focus your examination on jurors that peak your interest. Also be smart about who and for how long you question. Remember your objective in voir dire you need to make sure that you are learning enough about each juror so that when one begins to express views of bias you can pin them down! You want to remove these bad jurors with for-cause challenges. Spend your time there getting them to tell the court that they will not be able to do what they will be asked to do. Be Organized When you have a limited amount of time to accomplish something being organized is much more important. In this regard, you should know your objectives during voir dire. What do you need to learn about these potential jurors? In some cases, identifying tort reformers might be the most important area. In other cases, it might be something completely different, like use of drugs or immigration status. You must have a clear path to probe on these questions completely and quickly when you only have 20 minutes to examine all of the prospective jurors. Have an outline ready. Check off each subject once you cover it so you know you are doing everything you need to do. Sometimes it is more effective to have the judge begin questioning on a sensitive subject. For example if you have sensitive issues in your case such as drugs, immigration status, or convictions, it might be helpful to have the judge ask some preliminary questions on the subject. This will allow you to identify folks that you might need to dig a little deeper with. This is using your time wisely. You are not asking the initial questions. Instead, your time is being spent on your potentially problematic jurors. It is equally important to be organized for voir dire. Know everything you need to going in. For instance, how does the judge conduct voir dire? Is there an 18 pack? 20? Do you have to conduct voir dire on the entire panel first before you begin your peremptory and cause challenges? When you fill chairs after challenges, make sure you thoroughly question the new prospective jurors. You do not want to sit down and realize that you ignored one juror. Along these lines, sometimes people are shy or quiet and do not want to talk about accidents, injuries, and closely held beliefs in a room full of strangers. You need to

9 make sure that you do question the quiet ones. Make them feel comfortable when you do talk to them. If you do not get them talking you may end up with a very bad juror. Remember What They Say Some courtrooms will give you both the random list and the alpha list of prospective jurors. In fact, I have only had one trial where the clerk did not give us the random list. Having this list is key in keeping organized. Write each prospective juror s name from the random list on to the corresponding post it note. When the judge does the preliminary questioning fill in all critical information and perhaps a phonetic spelling of hard to pronounce names. Then you must take copious notes during your questioning. You may have to develop a shorthand. I personally do not spend too much time questioning folks that I know that the defense will successfully challenge for cause. I spend my time on the bad ones. Make sure you get enough information to be successful on a cause challenge so that you can save your peremptory challenges for the wobblers. Be Yourself When you are faced with strict limitations, fight for more time if you need it. In my experience when you have them talking, the judge is not going to sit you down. If the judge does tell you that your time is up when folks have their hands raised to respond to one of your questions, make sure that you politely request of the judge to allow you to finish with those who have something to say. You cannot make an intelligent decision on whether someone will be fair and unbiased if you do not have all of the information necessary on which to make that determination. In the end, be your authentic self. Be empathetic and sympathetic. Above all listen. This is not your time to do the talking. As you try more cases, voir dire will become easier. As it gets easier for you, you will undoubtedly become more effective. Good luck.

10 VOIR DIRE By Douglas DeGrave A. GOALS OF JURY SELECTION/VOIR DIRE 1. INFORMATION GATHERING The most important goal of Voir Dire is to gather from potential jurors' information: Necessary to intelligently exercise peremptory challenges. Sufficient to intelligently pursue challenges for cause. * This is the only goal universally recognized by courts. 2. RAPPORT The second goal of Voir Dire is to build a positive relationship between the lawyer and jurors. This is accomplished by: treating jurors with respect, showing an interest in the jurors as individuals making jurors feel comfortable, and Sharing the personal side of themselves Good rapport with jurors facilitates: Openness and candor. Positive feelings toward the lawyer. Greater trust in the lawyer, critical to the effectiveness of the lawyer's arguments. 3. EDUCATION The third goal of Voir Dire is education. Jurors arriving for service generally are unfamiliar with their new role and duties at trial. Role as jurors. Legal terminology. Legal principles. 4. PERSUASION The final and certainly most controversial goal of Voir Dire is persuasion. This is commonly referred to as "preconditioning the jury." If you successfully precondition the jury, it filters the evidence and arguments made at trial through the lens of your viewpoint. This makes it more difficult for the opposing lawyer to persuade the jurors to the contrary.

11 Universally condemned by courts, however, the better lawyer will do so without going so far as to run afoul of the court's level of tolerance. See California Rules of Court, Standard 3,25 (f) the trial court should not permit counsel to attempt to precondition the prospective jurors to a particular result It is a matter of degree. o o What plaintiffs attorneys do when appealing to the Reptile What defense attorneys are doing when raising issues such as Tort Reform or Personal Responsibility B. STYLE Above all, be yourself. Jurors will spot a phony. It is okay to use humor, if that is your personality. o Caveat: Make yourself the object of the humor Don't be overly aggressive with a juror. Don t insult a prospective juror no matter how deserved it is. C. USE A CONVERSATIONAL APPROACH. It is best to ask questions and then follow up, as opposed to questions requiring a yes or no response. Unfortunately, there are many courts which now significantly limit the time for voir dire. (See CCP, 222.5) In such situations, a different approach will be necessary. I recently watched Eric Traut use a Power Point presentation with questions for the entire panel. In response, individual jurors would raise their hand. While this is not the best approach for determining what potential jurors really think about a given topic, voir dire was limited to 20 minutes. Eric was able to obtain what he deemed necessary to exercise his peremptory challenges. D. ORGANIZATION While each individual trial may call for a different organizational approach, there should be organization. Typically, I like to break it down as follows: Introduction. Parties/witnesses. Fairness, including sympathy, prejudice (green vegetables). Credibility (parents/teachers). Relevant training (medical, legal, scientific). Damages (commitment to keep an open mind about the amount of damages and willingness to return a verdict for $0.00) Tort reform. Lawyers (Dad's story). Decision-making/judging others (aversion to judging others). Sports analogy, including baseball story. No strikes and no balls.

12 E. EXERCISING PEREMPTORY CHALLENGES It is best to thank the juror being excused, but ask the court to do the dirty work. "Your Honor, the defendant would like to thank and ask the court to excuse Juror No. 4, Mr. Smith." Seventh Amendment to the U.S. Constitution: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. California Constitution, Article 1 Section 16: Trial by jury is an inviolate right and shall be secured to all, but in a civil case three fourths of the jury may render a verdict. *Inviolate: Must be kept sacred, not infringed, undisturbed.

13 VOIR DIRE By Molly M. Murphy There are several approaches and philosophies regarding jury selection. The one thing these presentations have in common is the goal to get the best possible panel that gives their case a fair shot at a favorable verdict. The techniques and skill sets vary in preparing for an effect interaction with the potential jurors. Even the seasoned lawyers seem to have an apprehension and an uncomfortable demeanor during this very important phase of the trial. The key to success is preparation. When you begin to strategize about your case and in the process of developing the story, it is also time to think about who will resonate with the facts. There will be strengths and weaknesses of the facts, evidence, witnesses, experts and the venue that should be considered in preparing for the Voir dire questions. The potential jurors mindset, background, education, gender, age, race, cultures and where they were born and raised are all part of the mix that makes up a profile. The jury brings their life experiences to the table. How they perceive and feel about their world will be a major factor on how they view your case. The Voir dire questions must also include family and anyone they know. People have many influences that directly affect their point of view, beliefs, opinions, biases, prejudices and convictions. These influences are often deeply embedded in the psyche that have been handed down from generation to generation and have a cultural commitment. The questions need to be developed and phrased to reach these beliefs and convictions, especially if they have not thought about nor spoke about these feelings and concepts. There is also an interesting dynamic that happens during Voir dire. There is an imbalance of authority between the Court, lawyers and the citizens. The citizens have been summons to appear and be prepared to serve. The law requires that they abide or they will be penalized and suffer consequences. The potential jurors are facing an intimidating arena. Their feelings and thoughts are often apprehensive, protective and suspicious of why they are being asked about their lives. They are asked many questions from both the Court and the lawyers. Each has their agenda. The form of the questions often becomes obvious, repetitive, argumentative, forceful and uncomfortable. These questions are typically closed ended with the answer attached. Jurors figure out that all they have to do is agree with you. You will start to hear more of your voice and less of theirs. It seems the philosophy of de-selection falls in this category. The questions are loaded with a strong opinion and delivered with the attitude of looking for agreement. The argument to this approach is to identify the bad jurors. The strategy is to present negative concepts to see who agrees. The detriment is that theses questions also plant seeds into the psyche of the jurors who never had those thoughts or feelings about the suggested negative concepts and now wonder if they should see the case in the light that the lawyer is representing. One may argue that the negative approach flushes out those that never had thought about things in that particular manner. Another may argue that the human psyche is malleable and easily persuaded if the statement seems likely, reasonable or deemed a fact. Be careful not to poison the well. The questions that are thoughtful and open-ended will get the jurors to talk about their thoughts, feelings, opinions and beliefs. Voir dire is not about convincing people to see the world as you see it nor is it to change their minds. Another technique is to ask adviser questions [objectionable] attempting to render how they would sway towards a fact pattern. These types of questions are cross-examination with the answer. You may hear the answer you want, but it is your answer not theirs.

14 A great technique is to impress the jurors psyche with the strength of a positive approach to your case rather than trying to control the answers because of fear and insecurities. The weaknesses of your case can be dealt with by stating the facts without attaching emotions and fears. The open-ended questions are designed to get an answer that provides information. This format also gets the jury to want to participate and be acknowledged for their position. Those that don t resonate with the premise of the questions or topics will buck heads with the notions and expose their conflicts and convictions. The potential panel will reveal their tendencies through body language, facial expressions and tone of their voice as well as the phrasing of their answers. The goal is to expose the juror s frame of mind and thought process for the possible cause challenge or a preemptory. Creating a list of areas of interest will provide an effective road map for developing your Voir dire questions. The story of the case provides that fact pattern from which you can identify the important issues to ask during Voir dire. This list will create the main points for your questions. You can write out each individual question or just go off the list. If you don t write out the questions then it is important to practice the phrasing for each of the issues. I also recommend that you have someone writing down the jurors responses to free you up to listen, be attentive and organically ask the follow up questions. It is also important that you give closure to the juror by acknowledging their response with a thank you or an appreciation of their answer. CCP 222, 222.5, 225, 226, 227, 228, 229, 230, 231, are important laws to the welfare of your Voir dire and jury selection. It is mandatory that you are familiar and prepared to argue these Codes of Civil Procedures. For example CCP 225c speaks on actual bias that the juror must act with entire impartiality, and without prejudice to the substantial rights of any party. This is a powerful code when jurors are reluctant to commit to being entirely impartial or appear to not want to give a direct response to fairness. CCP 226d states that all challenges to an individual juror expect a peremptory challenge, shall be taken, first by the defendants, and then by the people or plaintiffs. These CCPs are very helpful in protecting your case during jury selection. Great preparation is fluid and evolving. Build your case story with discovery and testimony that will resonate with the jury, the decision makers of a successful verdict.