OVERCOMING JUROR BIAS IN AUTO CASES. Daniel J. Christensen

Transcription

1 OVERCOMING JUROR BIAS IN AUTO CASES Daniel J. Christensen 3410 Far West Blvd., Ste. 235 Austin, Texas (512) TTLA CAR WRECKS SEMINAR December 4, 2003 Dallas, Texas

2 Daniel J. Christensen 3410 Far West Blvd., Ste. 235 Austin, Texas (512) Dan Christensen received his B.B.A., with high distinction, and his J.D., with distinction, from the University of Iowa. Mr. Christensen is licensed to practice law in both Texas and California. He is a member of The Association of Trial Lawyers of America and Texas Trial Lawyers Association. Mr. Christensen formerly practiced as a prosecutor and defense counsel in the U.S. Army Judge Advocate General s Corps. He currently is a Shareholder with Smith and Carlson, P.C., located in Austin, Texas and practices exclusively personal injury law. He has published numerous articles to include: Proof of the Road Hazard Case, 71 POF3d, 2003; When Poles in the Right-of-way are Wrong, TRIAL, Feb. 2003, at 37; Paving the Way for a Road Hazard Case, TRIAL, Jan. 2002, at 47; An Equitable Approach to Applying the Attorney Client Privilege to Defunct Lenders, 19 J. CORP. L. 69 (1993). 2

3 I. SCOPE AND PURPOSE OF THE PRESENTATION In today s climate of tort-reform and anti-plaintiff sentiment, it is essential that plaintiff s counsel work vigilantly to identify and overcome juror bias and prejudice. While counsel s effort must be present throughout the entire trial, arguably the most critical time to address juror bias is during voir dire. This presentation will focus on how plaintiff s counsel can identify unfavorable venire persons and build a solid case for a causal challenge during voir dire. Libraries have been written on this topic. The purpose of this presentation is neither to summarize the current state of the literature on voir dire techniques, nor to deliver an exhaustive compilation of the research regarding juror bias. The intent, rather, is to simply discuss some of the tools and techniques used by myself and others to uncover and deal with juror bias in personal injury cases resulting from motor vehicle collisions. This paper intentionally omits a list of sample voir dire questions or a transcript of a typical voir dire. There are numerous resources available in which attorneys can find examples of voir dire questions. 1 The purpose of this presentation, however, is not to provide counsel with a script to follow, but rather, to equip them with the tools to create their own voir dire strategy and delivery. II. WHO ARE THESE PEOPLE? Assuming a jury venire is a cross-section of the population, it will likely include almost one-half Generation Xers, slightly less than one-third Baby Boomers, and about one-fourth Seniors. 2 The members of these groups typically have distinctly different opinions on topics such as career, family, personal responsibility, and individual sacrifice. 3 It is important, therefore, that counsel familiarize themselves with the values and attitudes typically held by people in a certain age group. While generalizations are not foolproof, they can be helpful in formulating a voir dire strategy. Even though members of these various population groups may have different beliefs, you can be sure that a large percentage of them, no matter what group they are from, believe one or more of the following: There are too many lawsuits Most lawsuits are frivolous Most plaintiffs are just trying to get rich Out-of-control juries usually give plaintiffs too much money Over the last decade or more, the jury pool has been programmed to believe that the only people greedier than plaintiffs are the plaintiffs lawyers. Together, they bring frivolous lawsuits in an effort to play the legal lottery and take advantage of the system. The juries 3

4 who hear these cases usually award the greedy plaintiff s and their lawyers with ridiculously high verdicts which, in turn, encourages other greedy plaintiffs and lawyers to bring more frivolous lawsuits. 4 All of this drives up the price of goods, services, and insurance, and costs us all money. Accompanying their common distrust and resentment of plaintiffs and plaintiffs lawyers, today s jurors identify and sympathize with the defendant. They see it far more likely that they will be defendants in the future than plaintiffs. Even when liability is not contested, juries will often still evaluate the plaintiff s conduct to determine whether he or she did anything wrong to cause the occurrence or the injuries. 5 Many of today s juries find the defendant not negligent because it was merely an accident and the defendant did not intend to harm anyone. 6 Another common thread connecting many of today s jurors is their feelings about noneconomic damages. Juries will often give little or no damages for physical pain and mental anxiety because they believe it will do no good; i.e. the plaintiff will still suffer whether money is awarded or not. Another rationale sometimes employed by these juries is that they, or others they know, suffer pain and receive nothing, therefore, the plaintiff should not get anything either. Not surprisingly, the people who have the strongest feelings against civil lawsuits also have the most trouble voting in favor of noneconomic damages. 7 These feelings about plaintiffs, plaintiff s lawyers, and the civil justice system may be so strong, in fact, that they outweigh the juror s life experiences. 8 Even those jurors who have been involved in a motor vehicle collision before should be questioned about their feelings on lawsuits and damages. Unless their experience is very similar to the plaintiff s, the juror is likely to continue to identify with the defendant and draw distinctions between their actions and the plaintiff s. One term that could explain some juror s strong beliefs is known by psychologists as defensive attribution. 9 This phenomenon occurs because people generally want to believe they live in a fair and just world where bad things do not happen to good people. Most people resist the notion that the world is unpredictable and that whether they will someday be horribly injured is outside of their control. To think they could easily find themselves in the injured plaintiff s situation makes them uncomfortable and anxious, so the jurors look for reasons why the incident could not have occurred to them. They often focus on the plaintiff s conduct and compare it to their idealistic view of how they think they would have reacted under the same circumstances. Invariably, they will identify something the plaintiff did or did not do that contributed to the cause of the occurrence or the plaintiff s injuries. At that point, the juror has affirmed the previous notion that bad things only happen to bad people. 4

5 III. WHY AM I TALKING TO THESE PEOPLE? There are a number of recognized purposes of voir dire including, but not limited to, the following: Identifying and striking unfavorable potential jurors Building rapport with potential jurors Educating potential jurors Inoculating favorable potential jurors Twenty years ago or so, before the nation s jury pool had been exposed to years of corporate and insurance sponsored propaganda concerning insurance crises, lawsuit abuse, and runaway juries, many lawyers considered rapport building and juror education as being the most important goals of voir dire. Lawyers were instructed to persuade every time they opened their mouth. It was common for trial lawyers to talk about not letting a skunk in the box by discussing volatile or harmful topics during voir dire for fear a single juror would contaminate the entire venire with their adverse opinions. In the last decade or two, the jury pool has changed a great deal, as have most trial lawyers voir dire techniques. Most trial lawyers today have recognized that identifying unfavorable potential jurors is the most important objective of voir dire for the plaintiff s counsel. Concerns about contaminating the venire are no longer present with today s jury pool, which has already been thoroughly contaminated by a constant barrage of advertisements, documentaries, and news stories describing a tort system in desperate need of reform. Moreover, social scientists have dispelled the belief that a person will abandon firmly held personal beliefs or values simply because an inconsistent view is expressed by a stranger in their presence. While locating and striking bad jurors may be a plaintiff s counsel s primary objective, it clearly should not be done in a way that destroys rapport or credibility with the venire. IV. HOW DO I LOCATE THE BAD JURORS? There is an infinite number of methods by which a plaintiff s counsel can uncover juror bias. Each trial lawyer should select a delivery style that reflects individual personality and is consistent with that demeanor throughout the trial. While there is no right way to build rapport with another, there are some tips and suggestions that may be helpful when conducting voir dire in an auto collision case. 5

6 A. What not to do. While there is no one right way to overcome juror bias when conducting voir dire, there are a few techniques that should generally be avoided: 1. Don t look like a slimy plaintiff s lawyer. Avoid wearing doublebreasted suits, loud ties, nail polish (males), expensive or gaudy jewelry, etc. If married, wear a wedding band. Don t wear pins or rings that reflect membership or beliefs. 2. Don t allow the client too look like a slimy plaintiff. Same rules as above apply to the client as the plaintiff s counsel. Client s dress should be warm, friendly, modest, and not obviously new or unworn. 3. Don t use legalese. Talk and act like a person, not a lawyer. Don t sound cold or monotonous. 4. Don t stay behind the podium or lectern unless required by the court. 5. Don t be condescending, judgmental, or dismissive. Avoid asking whether the juror can be fair and impartial or understands that the law states X. Don t ask the venire if they have a problem with something, whether they can keep an open mind until they hear all the evidence, or whether they will commit or promise to do something. Avoid embarrassing questions to the extent possible or ask that the court either ask those questions or include them in a questionnaire. Don t tell a juror you disagree with him or act with disbelief in response to a juror s answer. If a question is met with no response, do not state, I take it from your silence Don t allow a juror to give an answer that is unfavorable to your case without thanking them. 7. Don t ask a juror more than about five questions on a single topic. Avoid giving the impression that you are either more interested in what a particular juror has to say or that you are gunning for a specific juror. Also, attempt to offer the opportunity to each member of the venire to discuss at least one of the issues. 8. Don t ask close-ended questions when searching for bias. Counsel should not talk more than the jurors. The attorney should not use voir dire as a preliminary opening statement, spend much time explaining the theory of the case, or attempt to persuade the venire to take a particular side on an issue. 9. Don t ask open-ended questions when locking in the juror for a causal challenge. 6

7 10. Don t refer to the client as the Plaintiff, my client, or use the word victim when describing them. 11. Don t try to conduct voir dire by yourself. Having another person take notes will allow the attorney to focus on developing a rapport with the jurors and listening to their responses. It is impossible for the attorney to appear genuinely interested in what a venire member is saying, and at the same time, observe other members reactions and expressions. 12. Don t end voir dire on damages. Counsel should begin and end their voir dire strong, therefore, plaintiff s counsel should not end on damages. B. Before voir dire. 1. Conduct a focus group. Even the simplest car wreck case has hundreds, if not thousands, of separate facts that go into making each side s story. While it is critical for plaintiff s counsel to be intimately familiar with the facts of each side s case, it is more important that one know and understand which facts will be deemed important by the jury and how certain jurors will view those facts. This is where a focus group becomes important. A focus group can help counsel not only identify what issues potential jurors will see as important, but also, observe how those issues are viewed by people with different value beliefs. Focus groups were once expensive exercises conducted almost exclusively by trial consultants in only large and complex cases. Today, however, lawyers are routinely conducting focus groups themselves in even moderately valued cases. There are many guides and instructional papers available that explain how counsel can conduct a focus group themselves on cases that cannot afford professional trial consultants. 10 While an in depth discussion of focus groups is outside the scope of this discussion, it is important to note that counsel should be sure to videotape the jury deliberations. By observing the mock jurors deliberate, an attorney can spot sound bites to use later during voir dire and throughout the case. The attorney can also identify what values are held by those jurors who found for the defendant. These values and attitudes will prove invaluable when creating a profile of the ideal juror. Make sure, however, not to use the focus group to develop additional stereotypes. For example, just because the mock juror who was most against you was a nurse, do not assume that all nurses are good candidates for causal or preemptory strikes. If the case s value or the attorney s time does not permit a focus group, the attorney should at least discuss the facts of the case with non-lawyer friends and family members. These people can be extremely useful sources of information about how potential jurors will view the facts of the case, the parties, or the lawyers. Just as when using a focus group, the attorney should pick people who are not likely to side with the 7

8 attorney and should make sure to share all the bad facts with the people. It is important to note that the purpose of the exercise is not to provide a confidence boost for the lawyer, but to help the lawyer identify the potential hot button issues and gain some insight as to how laypersons will view and react to those issues. 2. Create a profile of the ideal juror. If you don t know what you are looking for, how will you know when you ve found it? Prior to voir dire, counsel should attempt to construct a demographic model of their ideal juror. This forces the lawyer to identify what attitudes and values are helpful and harmful to the case and who is likely to have those beliefs. This is especially important when the court does not allow juror questionnaires or when the attorney receives the juror cards just minutes before the beginning of voir dire. If a juror questionnaire is permitted, however, a well thought ideal juror profile can be extremely useful when formulating the questionnaire. 3. Juror questionnaire. This is a very underutilized tool in car wreck cases. These cases are often viewed by attorneys and judges as simple cases that do not warrant a juror questionnaire. However, a juror questionnaire is useful for these cases, not because the factual issues are typically complex, but because juror bias and prejudice is present in all tort cases, regardless of size or type. Additionally, juror questionnaires have become increasingly important recently due to more and more judges placing strict time limitations on voir dire. 4. Identify likely leaders and followers. From the data included on the juror cards and the juror questionnaire, counsel should mark on the juror chart which potential jurors who are likely to be leaders and followers. 5. Identify likely negative, positive, and neutral jurors. Counsel also need to make a preliminary judgment from the data on the cards and in the questionnaire as to which jurors will likely be positive, negative, and neutral. The lawyer should mark on the juror chart if it is believed a particular juror will likely be positive or negative. Many times, the preliminary data may not leave the lawyer with a strong belief either way. In that instance, one should mark the juror as neutral. It is important to understand that these preliminary measures prior to voir dire are only as reliable as the data available at the time. The decisions made about potential jurors at this stage are often based on generalizations drawn from certain demographic data or brief responses to broadly drafted questionnaire inquiries. While counsel should resist making any firm decisions at this early stage, the above-described techniques can be important steps in formulating a plan for whether a shuffle is necessary, which jurors to speak with first, or who to question on specific issues. 6. Compile a list of topics to be covered. The juror cards and questionnaire will typically identify a number of potential issues for voir dire. For example, the juror cards may show that some venire persons have medical training, insurance claims experience, or extensive previous jury service. These are all topics that can be discussed 8

9 during voir dire and serve as natural segways into some of the more meatier topics such as lawsuit abuse, hired-gun experts, or personal responsibility. The attorney should create an initial list of topics that is longer than what one intends to address during voir dire. It is much easier to delete topics on the fly than it is to try to formulate questions extemporaneously in front of the venire. 7. Write out every question of the voir dire. Because voir dire is such a dynamic process that is largely unpredictable, many lawyers do not bother to write out their questions word-for-word. Many times, lawyers simply go in with an outline, a prepared opening comment, and then they just see what happens. This often results in poorly worded questions that do not elicit much response. On the other hand, some lawyers take pains to write out all of their questions, but then don t devote adequate time to practicing their delivery. Regardless of the wording of a question, if the delivery is poor and does nothing to encourage a response, it is just as ineffective as the poorly worded question. Counsel should always be mindful of what they are attempting to do convince someone to admit in front of a judge, armed bailiff, and room full of strangers that they are biased and/or will not follow the law. This very difficult task can only be accomplished with thoughtfully crafted questions delivered in a completely non-threatening manner by a honest, caring, credible attorney. C. Start with building rapport. Most potential jurors on a venire will be experiencing the voir dire process for the first time. Being interrogated by an attorney in public about a person s history, values, and beliefs can make many people very anxious. It is, therefore, critical that the attorney work to reduce or eliminate that anxiety early on during her voir dire. While an attorney s main objective during voir dire may be to identify and strike the bad jurors, a pre-requisite to that objective is to have a good rapport with the venire. If the venire does not trust the attorney or is never made to feel comfortable enough to speak frankly, the attorney will never be able to extract enough information from the venire to identify the bad people, let alone strike them for cause. Building rapport begins with the attorney establishing credibility. The jury will not see this credibility unless they believe the attorney is being honest. The attorney cannot be credible unless the jury believes she is honest. The easiest way for an attorney to convey honesty is to actually be honest. While it is possible for an attorney acting the part to fool some of the jurors some of the time, they will not fool all of the jurors all of the time. Therefore, the key to establishing credibility with the jury during the voir dire process, as well as throughout the entire trial, is to be totally honest. When attorneys are totally honest about the case with the judge and jury, they will necessarily appear honest as well. There will be no need to choreograph movements around the courtroom, orchestrate voice cadence and inflection, or practice facial 9

10 expressions or hand gestures. When the attorney is totally honest about the case, all of these things will occur naturally and the jury will interpret them as expressions of sincerity. Being totally honest about the case includes discussing the negative facts with the jury during voir dire. The attorney should be honest about the worrisome issues at the case. Before doing that, however, one must establish a rapport with the jury, reveal credibility, and relax the venire enough that they will be willing to share their beliefs. The following are some suggestions as to how to do this: 1. Show them yours if you want them to show you theirs. One way to relax the venire and make the attorney appear more human is for the attorney to share something personal with the venire. People are more willing to share something personal with someone who has also revealed something about himself or herself. This can be done when the attorney introduces one s self and the client. After a few opening words, the attorney may share a brief personal story that is tied to the voir dire process. For example, the attorney could tell the venire about not liking the taste of a certain kind of food, causing bias against that food. Therefore, if the case were about that food, the attorney would be unable to serve due to those feelings and experiences. Or, the attorney may want to ask the venire who is afraid of speaking in public and then share a story about being afraid as well, especially because the case at hand is so important. No matter how it is done, the object is to humanize the attorney and lower the venire s inhibitions. Robert Hirschborn, attorney and jury consultant, advises that the attorney focus the panel on the client rather than one s self. Therefore, rather than beginning with My name is... and I represent..., Mr. Hirschborn suggests the attorney start with, Good morning ladies and gentlemen. I am proud to stand here with... and have twelve of you decide this very important case. In this part of the trial, we need to find out your feelings, impressions or opinions about the issues in this case. I want you to know that there are no right or wrong answers. We will be honest with you and we ask that you be as honest as you can with us. 2. Share a few of the facts. Once the ice has been broken with the venire, the attorney should briefly inform them of what the case is about. It is a tremendous advantage for the plaintiff to go first, therefore, plaintiff s counsel should take advantage of this opportunity and briefly explain their side of the case. Psychological studies have shown that people are quick to form opinions of what they think happened. Once their initial opinion is formed, they search for evidence that confirms their belief and they discount evidence that is inconsistent with their belief. Therefore, plaintiff s counsel should share of a few of the positive facts with the potential jurors who may be starting to form their initial impressions of the case. It is very important that when counsel informs the venire of some of the facts, they do so in a manner that does not sacrifice the credibility they have begun to build. People do not trust those who appear to be selling them something or trying to persuade. 10

11 Therefore, the attorney s description of what the case is about should be relatively balanced. Plaintiff s counsel should not give defense counsel the opportunity to later reveal an extremely important fact that was consciously omitted. A brief and fairly balanced recitation of some of the important facts by plaintiff s counsel will establish her in the jury s eyes as the source of the truth and further enhance her credibility. 3. Start with a question that will require or encourage a response. Now that the attorney has made a personal connection and established a sense of trust with the venire, it is important to get them talking. It is best to begin with a nonthreatening, simple question to which anyone would have an answer. For example, counsel could start with one of the obligatory questions about whether anyone knows counsel, parties, etc. Or, the attorney could jump right in and ask a venire person what their thoughts or feelings are on frivolous lawsuits. Regardless of the topic, the question must be open ended, not easily answered with a yes or no, and not asked in a suggestive manner. Also, an attorney may not want to start with a question aimed at an individual potential juror, but rather, to the entire venire. Once counsel gets the members talking, specific questions to a targeted individual may seem less threatening. If asking a question to the entire venire, however, counsel should not simply ask, does anyone have any feelings about.... If counsel is going to simply ask if someone has feelings on a particular topic, it should be addressed to an individual juror and worded something like, What feelings do you have, Ms. Smith, about.... D. Quickly get to what scares you most. Once counsel has built a rapport with the venire, it is time to begin working toward the main objective of voir dire: identifying and striking the bad jurors. In order to do that, the attorney must be honest about the worrisome issues of the case. For example, the attorney should share with the jury that he or she is scared some of the jurors may not take her client s case seriously because others have filed cases that were not legitimate that this client s case will be lumped in with all frivolous lawsuits and the client will be penalized for these other cases. Some of the typical hot spots in car wreck cases are the following: 1. Too many lawsuits 2. Frivolous lawsuits 3. Runaway juries 4. Low impact collision 5. Whiplash, subjective injuries, negative diagnostics 6. Chiropractic treatment 7. Attorney referral to doctor 8. Delay in seeking treatment 9. Pre-existing conditions 11

12 10. Intangible damages 11. Seatbelt 12. Personal responsibility 13. Non-treating medical or biomechanic experts E. Typical method of questioning. There are numerous ways an attorney can introduce and discuss an issue with the venire. There is no right way. The following are examples of ways to address an issue with the venire: 1. Direct question to a probable negative juror. One way to introduce an issue to the venire is to simply ask one of the probable negative jurors how they feel about a certain topic. The attorney will typically want to select one of the individuals identified as potentially negative to the case and considered a leader. Because voir dire is usually extremely time limited, counsel should focus efforts on trying to extract bases for causal strikes against the probable negative individuals and target the leaders first. 2. Direct question to the entire venire. If counsel decides to introduce a topic by asking a question of the entire venire, it should be asked in a manner that encourages a response. For example, asking How many of us feel..., while raising a hand, may be more effective than asking Does anyone think..., Does anyone have a problem with..., or Can everyone on the panel promise me.... If a number of people raise their hands in response to the question, counsel should account for the responses on the record and then pick one of the jurors they have identified as a leader and probably negative to ask additional questions. 3. Question in the alternative. Another way to introduce an issue to the venire that is particularly effective in a very time-limited voir dire is to ask a question in the alternative. For example, Mr. X, let s talk for a minute about chiropractors. Some people swear by em and some people swear at em. Some people really like chiropractors and have had a lot of luck with chiropractic treatment, and others believe all chiropractors are quacks. Which of these statements best describes how you feel? When asking a question in the alternative, it is important to pick a juror whom you believe will likely be an unfavorable juror, but is also a leader. When asking the question, it is important to try to describe the negative position by using extreme terms. The objective is to get the unfavorable juror to adopt the extremely unreasonable negative position. 4. Flush out. Once the unfavorable juror adopts the position, counsel should firmly tie the juror to the position to prevent the juror from later trying to rehabilitate herself. The attorney can then gently push the juror even more toward the extreme negative position. This will not only help set the juror up for a causal challenge, but will also cause the unfavorable juror to lose credibility with reasonable jurors on the 12

13 venire. Counsel should be careful, however, not to push the unfavorable juror so far that the juror recognizes the ludicrous nature of the position and attempts to rehabilitate the position. After getting the unfavorable juror to adopt the extremely negative position, be sure to say thank you. The venire members will likely know that the unfavorable juror s position is against the plaintiff s interest and may expect plaintiff s counsel to be antagonistic to this juror s position. Therefore, it is very important that counsel explain to the venire that the system is built on people being honest and that counsel sincerely appreciates the unfavorable juror s candor. This should be done before moving on to any other jurors. 5. Loop to get others. After thanking the unfavorable juror for the candor, counsel can loop the negative position into a question to the entire venire. For example, How many other folks believe as Mr. X does that all chiropractors are quacks? Counsel should be careful not to push these other negative jurors too far to a point where they back down and adopt a less extreme alternate position. 6. Lock in for causal challenge (see below). After the attorney has identified all the negative jurors who agree with the original unfavorable juror, it is possible to go back to the original unfavorable juror and establish the basis for a causal challenge. Occasionally, when the attorney loops to get others to agree with the original unfavorable juror, one may discover a juror willing to adopt an even more extreme position or a juror who has even deeper feelings on the topic than the original unfavorable juror. In that case, the attorney may not want to return to the original unfavorable juror, but rather, go to the more negative juror and lock that juror in first. It is important to note that steps five and six can be switched if the first venire person addressed on an issue takes a very strong stance and easily provides the basis for a causal challenge. In that event, it would not be necessary to begin to loop others in after flushing out the venire person s bias. The attorney could, instead, lock that initial person in for a causal challenge and then loop others in. 7. Skip over to positive jurors on that issue. After locking in the members of the negative group and establishing the bases for causal challenge, the attorney may open the discussion to other jurors who did not agree with the negative position. The attorney can take this opportunity to educate the venire about the theory of the case regarding this issue. Allowing the positive group to respond to the negative group essentially gives counsel a preview of juror deliberations on the issue. The attorney should be careful, however, not to use so much time with this step that it takes away the ability to flush out bad jurors on other topics. 8. Inoculate. If the attorney took the time to skip over to the positive jurors on the issue, it is important to inoculate those jurors before leaving the issue. The attorney, through leading questions, should try to get the jurors to assure the court that 13

14 they will evaluate the evidence objectively and follow the court s instructions. This will, hopefully, prevent the defense from being able to set those jurors up for causal challenges on the issue during the defense voir dire. V. HOW DO I GET RID OF THE BAD JURORS? It is important for counsel to lock the negative juror in to an unfavorable response before proceeding with questions establishing a causal challenge. Once that is done, the attorney can loop the juror s own words into the attorney s questions establishing a challenge. It is important to firmly establish the basis for the causal challenge before the defense or the judge has an opportunity to try to rehabilitate the juror. There are many ways to establish a basis for a causal challenge once the juror has admitted their bias. The method that should be utilized depends, in part, on the procedures required by the court. Some courts require challenges to be done when the basis is uncovered. Other courts require that challenges be done after both sides examinations. Typically, challenges are made at the bench with just counsel, the judge, and the individual juror present. Counsel should know the judge before formulating a strategy. It can be effective to offer a causal challenge in front of the entire venire in certain circumstances. For example, if counsel believes a juror who has expressed an unfavorable bias wants off the jury, the attorney may want to establish the basis for the challenge immediately and then ask the juror, Given what you have just shared with us, would you mind if I asked the judge to excuse you from having to serve as a juror in this case? Once it is determined that the juror doesn t mind being excused, it can send a signal to other unfavorable jurors who may also want to go home. This technique is probably best used when the negative juror s opinions are strong and counsel is confident the juror will agree to being excused in front of the rest of the venire. Once accomplished, the attorney can loop in others who may also want off the panel. While some venire members are eager to provide reasons for the judge to let them go, others will do anything to dodge a challenge. These people will often reveal attitudes and experiences that indicate bias, but will refuse to admit they are incapable of following the instructions or acknowledge any tendency to favor one side. Counsel should pursue these individuals as aggressively as possible without making the member or others on the panel feel like the attorney is gunning for the person. Robert Swafford, attorney and jury consultant in Austin, Texas, suggests using a couple of stories to preface the closing questions: When my father used to play games with me, he would tell me to go in the corner and not think of a red-faced monkey. I would go in the corner and, no matter how hard I would try, the only thing going through my mind would be a red-faced monkey. Sir, you have told us that you [re-state attitude or experience]. Now, I know you will try your best to put [attitude 14

15 or experience] out of your mind, but because this is such an important issue in this case, you would agree with me that you might be better suited for service on a different case that doesn t have that issue in it. Isn t it fair to say that because of your [attitude or experience] that I am starting out behind the defense in your mind. Cathy Bennett suggested the following to encourage candor: Everyone has heard about doing their civic duty by serving on a jury. It can be one of the most honorable things to do as a citizen of this country. Rarely, however, do we hear about the equal and just as important duty not to serve. There are all types of cases being tried in this courthouse in which you may be an appropriate juror, but wouldn t you agree that based on what you have told me today, in this particular case it is probably your duty not to serve. When possible, counsel should get unfavorable venire persons to provide the basis for a causal challenge during general questioning of the entire venire. It is generally easier to get favorable answers when jurors are seated in the venire than when they are being individually interrogated by the defense or judge at the bench. Also, as explained above, the unfavorable venire person s responses can often be used to obtain additional strikes on other panel members. At some point, the unfavorable juror will have to undergo individual questioning apart from the venire. It is important that plaintiff s counsel carefully reiterate the basis for challenge and protect the juror from rehabilitation by the defense and the judge. One method to establish a causal challenge at the bench after a juror has already expressed bias is to: A. Introduce the topic again. B. Lock them in again. C. Protect them from rehabilitation. D. Close them out. Robert Swafford suggests accomplishing this with the following exchange: 1. Mr. X, my notes indicate that you said that, regardless of the facts, evidence or instructions, while you could award the plaintiff damages for things like lost wages or medical expenses, you just could not give money for something intangible like pain and suffering or mental anguish. 2. Are my notes accurate? 3. Did you tell us that because that was the truth? 15

16 4. I m just asking to make sure that I did not intimidate you into saying something that is not the truth. 5. So, if Judge Sleepy or Attorney Liar were to ask you the same question, you would answer the same way that you did to me? 6. Mr. X, I know you will try to follow the judge s instructions on things like not talking to the lawyers during the case or not deliberating until the case is over, but is it fair to say that you just could not follow an instruction that required you to give money for something intangible like pain and suffering or mental anguish? As is true with most other parts of the trial, whether counsel will be successful depends a great deal on the delivery. Counsel should not make jurors feel as though they are being cross-examined, manipulated, or persuaded. The questions should be presented in as non-threatening manner as possible. While the court has broad discretion regarding the scope of voir dire, that discretion is limited by a litigant s right to a fair trial. A party has the right to question the panel on issues of liability crisis or tort reform. Babcock v. Northwest Mem. Hosp., 767 S.W.2d 705 (1989); National County Mut. Fire Ins. v. Howard, 749 S.W.2d 618 (Tex. Civ. App. Fort Worth 1988), no writ). It is important to note that inherent bias is what is required, and not potential bias or bias acquired during the voir dire process, in order to establish a basis for a causal challenge. If a juror admits that one party is starting off ahead of another party, that is a basis for excusal. Shepard v. Ledford, 962 S.W.2d 28 (1998). Once a panelist has shown bias, he or she cannot be rehabilitated. W.D.A. v. State, 835 S.W.2d 227 (Tex. App. Waco 1992, no writ); Carpenter v. Wyatt Const. Co., 501 S.W.2d 748 (Tex. Civ. App. - Houston [14 th Dist.] 1973, writ ref d n.r.e.). If the court denies counsel the ability to inquire of the venire on a specific issue, counsel must preserve the record by objecting, providing the court the issues that need to be discussed and/or the unasked questions, and obtaining a ruling. McCarter v. State, 837 S.W.2d 117 (Tex. Crim. App. 1992). If a causal challenge is denied, counsel must follow all the steps set forth in Hallett v. Houston Northwest Medical Center, 689 S.W.2d 888 (1985) in order to properly preserve the error. VI. HOW DO I DO ALL OF THIS WITHIN MINUTES? Many courts in Texas routinely limit voir dire in car wreck cases to minutes, sometimes less. Judges are more likely to impose unreasonable limitations on voir dire in cases that involve seemingly routine facts and issues. This flawed thinking assumes that the less people are injured or the smaller the amount of property damage to the involved vehicles, the less an attorney would have to talk with potential jurors. In reality, just the opposite is true. Cases involving subjective injuries and low impact are 16

17 much more vulnerable to juror bias than cases where the injuries are severe, objective, and clearly the result of the collision. It is important, therefore, that if counsel needs more time to conduct an effective voir dire, one must move the court for additional time and provide the court with a list of discussion topics, intending questions, and copies of controlling case law. See Ratliff v. State, 690 S.W.2d 597 (Tex. Crim. App. 1985) for guidance. While the above is certainly true, also true is the fact that venire members bore quickly and become frustrated with inefficient questioning. Counsel should always balance the desire to know everything against the venire s limited tolerance for lengthy questioning. This is especially important in cases involving more minor injuries and vehicle impacts which the venire will not view as significant enough to warrant taking substantial amounts of time. In situations where time is very limited, the following suggestions may be helpful: 1. Make a motion for more time. 2. Request to use a juror questionnaire. 3. Request that the court ask obligatory questions such as whether the jurors know any of the attorneys, witnesses, or parties. 4. Request that all causal challenges be made at once at the end of voir dire. 5. Limit introduction comments and case overview to about 2-4 minutes. 6. Limit the number of topics to one topic for every five minutes allowed. 7. Ask no more than about five questions to each juror on each topic. 8. Focus on the jurors within the strike zone. Counsel should explain early on to the venire why they are talking more to those seated up front. 9. If the attorney encounters a talkative juror, thank them, tell them you understand how they feel on the issue, and explain to them that you need to hear from others. 10. Introduce new topics by using questions in the alternative (section IV., E., 3.) This method can be an efficient method for framing the issue and eliciting useful responses quickly. VII. CONCLUSION This paper has provided some of the ways plaintiffs counsel can begin to overcome the bias and prejudice possessed by most of today s jurors. The objective of voir dire is not to persuade those jurors that their beliefs are misguided, but rather, to flush those feelings out and use them as the basis for causal challenges. Once counsel establishes themselves as credible, the jurors will be more likely to speak openly about their biases and expose themselves to a causal challenge. The more venire persons counsel can eliminate, the better chance the client has of receiving a fair trial unaffected by the corporate and insurance company propaganda. 17

18 1 National Jury Project, Jury Work: Systematic Techniques, 2 nd ed., West Group (1999); Starr, Jury Selection: Sample Voir Dire Questions, Little, Brown and Co., (1994). 2 Hamlin, Who Are Today s Juror s and How Do Your Reach Them?, LITIGATION, Vol. 27, No. 3, p. 9, (Spring 2001). Defines Generation Xers as those born between , Baby Boomers born between , and Seniors born before For a general discussion of the different attitudes and values typically held by members of these population groups, see Foley and LeFevre, Understanding Generation X, TRIAL, p. 58 (June 2000); Hamlin, Who Are Today s Juror s and How Do Your Reach Them?, LITIGATION, Vol. 27, No. 3, p. 9, (Spring 2001). 4 Wenner and Cusimano, Combatting Juror Bias, TRIAL, p. 30 (June 2000). 5 Vidmar, et. al., Damage Awards and Jurors Responsibility Ascriptions in Medical Versus Automobile Negligence Cases, Behavioral Sciences and the Law, 12:151 (1994); Wenner and Cusimano, Combatting Juror Bias, TRIAL, p. 30, 34 (June 2000). 6 Lilley, Uncovering Juror Bias and Prejudice - Auto Cases, TTLA Car Wrecks Seminar, Nov. 1, Greene, et. al., Jurors Attitudes about Civil Litigation and the Size of Damage Awards, 40 AMERICAN UNIV. L. REV (1991). 8 Lilley, Uncovering Juror Bias and Prejudice - Auto Cases, TTLA Car Wrecks Seminar, Nov. 1, Shaver, Defensive Attribution: Effects of Severity and Relevance on the Responsibility Assigned for an Accident, 14 PERSONALITY & SOC. PSYCHOL. 101 (1970). 10 Komyatte, Simplify complex cases with focus groups, TRIAL, Apr. 2001, p. 61; Barnett, Letting focus groups work for you, TRIAL, Apr. 1999, p