1 FEDERATION OF DEFENSE & CORPORATE COUNSEL BAHAMAS: PROPERTY SECTION MEETING February 24 March 2, 2008 Westin Our Lucaya Resort Grand Bahama Island Jury Selection in the First Party Insurance Case: Profiling is Not Enough PARTICIPANTS: William Berk, Esq. Berk, Merchant & Sims, PLC Coral Gables, Florida D. David Keller, Esq. Bunnell, Woulfe, Kirschbaum, Keller, McIntyre, Gregoire & Klein Ft. Lauderdale, Florida Cindy K. Andrews, PH.D. Courtroom Sciences, Inc. Irving, Texas
2 Picking a Jury in First Party Insurance Cases: Profiling is Not Enough I. What Makes A First Party Insurance Case Different a. Insurance company is named defendant b. Image of insurance companies c. Jurors are not blank slates - they have individual experiences and preconceptions d. Impact of anti-corporate (Enron, WorldCom, etc.) sentiment e. Experience among jurors with insurance companies f. Impact of recent disasters on insurance company s image g. Prohibition on naming insurance company in third-party liability suits: i. Federal Rule of Evidence Rule 411. Liability Insurance - Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. ii. More important, no doubt, has been the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds. McCormick 168; Annot., 4 A.L.R.2d 761. II. What Issues are Jurors asked to Decide in First Party Insurance Coverage Suits? a. BREACH OF CONTRACT - The issues for your determination on the claim of (claimant) are: Whether (defendant) failed to perform [his] [her] [its] [duty] [duties] under the contract and, if so, whether that failure to perform was a legal cause of damages sustained by (claimant). Florida Standard Civil Jury Instruction MI 12.1 b. INSURER S BAD FAITH FAILURE TO SETTLE - The issue for your determination is whether (defendant) acted in bad faith in failing to settle the
3 claim [of] [against] (insured). An insurance company acts in bad faith in failing to settle a claim when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward [its policyholder] [its insured] [an excess carrier] and with due regard for [his] [her] [its] [their] interests. Florida Standard Civil Jury Instruction M I 3.1. III. Considerations a. Understand the key themes of the first-party insurance case. b. De-Selection: eliminate those jurors you perceive to be hostile or unsympathetic. c. To enlist the support of the remaining jurors who will sit as members of the jury. IV. Profiles of Jurors - a predetermined set of guidelines that indicate juror s potential predisposition to considering your argument seriously and honestly. V. Traditional Recommendations: a. Traits generally sought by defense counsel: i. Rule Followers ii. Conservative (both in views and appearance) iii. Business Oriented iv. Jurors similar to your clients in occupation, dress, status, and experience. v. Physically tough individuals vi. Non-artistic (analytical) persons vii. Childless persons viii. Persons responsible for profit and loss in their professions ix. Those that can relate to defenses argued
4 x. Persons required to look into developed matters and impasses, with the duty of sorting out the facts, making decisions and disposing of various contending positions, with the opportunity for hindsight second-guessing from those who did not fare well. b. Profiles in which the traits are alleged to be found: i. Middle level employees / managers ii. Government Workers iii. Law Enforcement iv. Elderly or retired persons v. Suburban Housewives vi. Nurses vii. Doctors VI. Concerns with Profiling Jurors based on Race and other demographics a. Batson v. Kentucky, 476 U.S. 79, 89 (1986) - Equal protection clause forbids challenging potential juror on account of their race. Peremptory challenges must be race-neutral and explanations for use of challenge must be genuine. b. Florida - Turnbull v. State, 959 So. 2d 275, 277 (Fla. 3d DCA 2006) - State's justification of its peremptory challenges of four African American prospective jurors, based on reasoning that jurors' experiences with racial profiling would affect their impartiality, was not race-neutral and was not genuine; question of racial profiling did not bear any relevance to case, questions on racial profiling were not asked to elicit jurors' general feelings toward law enforcement, and state
5 designed tangential questions on racial profiling to elicit responses from potential black jurors, which state later held against them when selecting final jury panel. c. New York - People v. Rosado, 2007 WL (N.Y.A.D. 1 Dept., Nov. 29, 2007) - Defendant made prima facie showing of discrimination in prosecutor's use of peremptory challenges to prospective jurors, as required to support claim of Batson violation, by showing that prosecutor had exercised a peremptory challenge against every Hispanic panelist in venire that remained available following excusal of other venirepersons for cause or by consent, with such challenges amounting to half of his total challenges, even though percentage of Hispanics in voir dire was slightly over 10 percent. d. California People v. Williams, 40 Cal.4th 287, 289,148 P.3d 47 (Cal. 2006). Capital murder defendant failed to make prima facie case of group bias in prosecutor's peremptory challenge to Hispanic prospective juror; although at time his removal was challenged, he was only Hispanic prospective juror to have been considered, his expressed sentiment of skepticism toward police and his two DUI misdemeanor convictions, prosecuted by same office that was trying this case, served as neutral bases for peremptory challenge. VII. Why Profiling is Not Enough a. Personal experiences of Panelists b. Composition and interaction of jury panel as a whole c. Profiling myths about jurors i. Clarence Darrow (Esquire Magazine, 1935) - ethnic stereotypes to pick juries, explaining people with Mediterranean backgrounds are hot-blooded
6 and emotional, while Germans and Scandinavians are cold and judgmental. ii. Body type Analysis - ectomorphs (skinny), endomorphs (Fat) and mesomorphs (athletic) - Pop Psychology fad. James W. McElhaney, Picking a Jury, American Bar Association, 18 no. 2 Litigation 43 (1992). iii. Intuition, common sense, and past trial experience 1. Zeisel and Diamond, The Effect of Peremptory Challenges on Jury Verdict: An Experiment in Federal District Court, 30 Stan.L.Rev. 491 (1978). In this study, excused jurors were paid to stay and watch trial. The excused jurors were exposed to trial just like the actual jurors. They left when the actual jurors left and they heard only what the actual jurors heard. Jurors were only excluded from jury deliberations. However, excluded jurors deliberated amongst themselves. 2. Results: Prosecutors scored near zero. They excused nearly as many jurors who would convict and those who would acquit. 3. Defense Lawyers did only slightly better, keeping almost as many jurors who would convict as those they excused. 4. Overall: Attorneys did little better than random selection. VIII. Questions targeted to: a. Demographic questions
7 i. Age, race, sex, income, profession, marital status, family variables (number and age of children, living at home or not, etc.), education, rural vs. central city residence, etc. ii. Current (e.g., current residence) and historical (where person grew up) information. b. Case-relevant preconceptions (attitudes, beliefs, opinions) i. Attitudes toward corporations, insurance companies, attitudes toward lawsuits or verdict size; c. Case relevant experiences i. Level regarding technology, skills, experiences at issue, training that may predict relevant knowledge, relatives in related professions (for example, doctors' families when the case involves a claim of malpractice), and direct personal experience (and those of close friends or family) with relevant events, technologies, professions, etc. (including those that affect either case relevant knowledge, or attitudes). d. Personality factors i. Five Factor Trait Theory of Personality and how it is relevant to these cases (Dr. Andrews) ii. Personal habits that are assumed to indirectly assess attitudes, knowledge, leadership potential, or relevant personality characteristics; often such behaviors as hobbies, memberships in various political, social, or fraternal organizations, and reading and movie/television viewing habits, (including amounts and selection (e.g., Are they Howard Stern Fans?).
8 Deborah Davis and William C. Follette, Jurors Can Be Selected: Non information, Misinformation and Their Strategic Uses for Jury Selection, Handbook of Forensic Psychology. New York: Basic Books (2003). e. Affective versus Cognitive processing styles (Dr. Andrews) f. Victim (empathy) versus defensive attribution IX. Science and Art of Jury Selection (Dr. Andrews) a. Jury De-Selection b. When Profiling based on Stereotypes Goes Wrong c. What to Ask and How to Ask it d. What not to Ask e. Developing Challenges for Cause f. Analysis of Non-Verbal Communication (Detecting Incongruence or Cognitive Dissonence) g. Mock Jury Studies and Surveys h. Empirical Juror Profiles i. Shadow Juries X. The Allure of Jury Investigation (does it help?) a. The Benefits of Juror Questionnaire XI. Presenting Yourself to the Jury XII. Goals of Voir Dire XIII. Tips and Techniques for Success