Medical Malpractice VOIR DIRE QUESTIONS

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1 Medical Malpractice VOIR DIRE QUESTIONS INTRODUCTION: Tell the jurors that this is a very big and a very important case. Do a SHORT summary of the case and the damages we are seeking. This summary should take no more than 2 minutes. We are not trying to persuade but instead, trying to identify potentially bad jurors. Tell the panel that, Being a good juror and a good citizen means that if this case is not the right one for you to serve on, just let the lawyers and Judge know. Tell the jurors there are no right or wrong answers to the questions you will be asking. All that you are asking of the jury is that they be honest and forthright in their answers. Do not tell the jurors that you are looking for 12,...fair and impartial jurors. This will condition the jurors to give the fair and impartial response rather than the honest response. Let the jury know that many times jurors want to talk privately about an answer to a question. Tell them if any juror would feel more comfortable sharing an answer in private, that person should simply let you know. Tell the jurors that it s been your experience that many jurors believe that if they don t talk, they won t be selected. Then tell the jurors that the quickest way to be selected is not to say anything. In other words, jurors who talk, walk. Jurors who have nothing to say, stay! 1. [Pick a juror] [Juror s name], imagine you were in a race with someone and that person got to start before you did, would you agree with me that would not be fair? The same thing applies in a trial. If a juror would start off the trial favoring the Defendant Doctor, that would not be fair. [Juror s name], I am going to be talking about a number of issues in this case and if at any point you feel that you are favoring the Doctor, would you feel comfortable raising your hand and saying, Mr./Ms. [Your Name], I feel like I m favoring the Doctor in this case.? [Go to another juror] [Juror s name], would you feel comfortable raising your hand and saying, Mr./Ms. [Your Name], I feel like I m favoring the Doctor in this case? [Ask the same question to a third juror]. Is there anyone on the panel who would not be willing to raise their hand and let me know if at any point they feel like they are favoring the Doctor. Explain to the jurors that when lawyers refer to a juror having a bias or prejudice, they mean pre-judgement or strong opinions. Tell the jurors that if they have any pre-judgment or strong opinions about any of the issues, to please let you know. Page 1 of 13

2 2. We all have biases or prejudices, whether it is teams we favor, foods we like and dislike or even issues in a court case. Let give you an example, for most of my career, I have been helping people who have been the victim of medical malpractice, so if I was called as a juror in a case where a Doctor was being sued for medical malpractice, I could not be a fair juror for the Doctor. On the other hand, I have several people who believe that doctors should not be sued even when they make a mistake that harms or kills a patient. If someone has such an opinion, that s fine, but that person would not serve as a juror in a case where a doctor is being sued. [Pick a juror] [Juror s name], can you think of a type of civil case where you would say, Mr./Ms. [Your Name], I could not be a fair juror in that type of case. [Ask 3 or 4 more jurors that question]. So you see, we all have types of cases or issues where we could not be fair. If I raise any issue and you are feeling that you have a negative view or you just couldn t be fair, [Pick a juror] [Juror s name], will you please tell me? Is there anyone who would feel uncomfortable raising their hand and telling me? BURDEN OF PROOF: 1. In a civil case, the party bringing the case must prove their case by a preponderance of the evidence. Here is what that means: [Pick up a ream of paper] As you can see, I have a ream of paper in my right hand. Let s say I present this amount of evidence, and let s say the defense presents [pick up another ream of paper] this amount of evidence. If the amount of evidence is equal, we have not proven our case by a preponderance and the Plaintiffs lose their case. However [pick up a single sheet of blue paper], if we present even a single sheet more of evidence [place the blue sheet on the right ream], then by law, we have proved our case by a preponderance of the evidence and the jury must find in favor of the family. Now let me ask you a few questions. [Pick a juror] [Juror s name], there are some people who feel that a person coming to court in a civil case should have to prove their case by more than a preponderance. How do you feel about this? 2. Is there anyone on the first row who feels that we should have to prove our case by more than a preponderance of evidence? If any juror says Yes, follow up with: [Juror s name], image that a preponderance of evidence means 50.1%, what percentage would you feel we should have to prove our case by? After the juror gives their percentage, follow up with, understanding that the law says we only have to prove our case by a preponderance, what you are telling me and the Judge is that you still feel we should have to prove our case by more than a mere preponderance. Thank the juror for his honesty and ask if it s OK with her/him, if we talk some more about this later. 3. Who else in the jury panel agrees with [juror s name], that we should have to prove our case by more than a preponderance of the evidence? It s OK if you feel this way, but would you please raise your hand and let me know you feel this way. Page 2 of 13

3 4. In this case, we believe the evidence will show that the family is entitled to [insert number] dollars in damages. There are some people who feel that if a person is seeking millions dollars against a doctor, they should have to prove their case by more than a preponderance of evidence. [Pick a juror] [Juror s name], do you feel that if the family is seeking millions dollars against a doctor, they should have to prove their case by more than a preponderance of evidence? Who else on the first row feels that we should have to prove our case by more than a preponderance of evidence? Second row, third I know from experience that there are some jurors who feel that a verdict against a doctor would ruin his life, reputation or career and therefore, some jurors want more than a preponderance of evidence. I imagine there are some folks on this jury panel who feel this way. [Pick a juror] [Juror s name], do feel that if a verdict would ruin the life, reputation or career of a doctor that you would want more than a preponderance of evidence? [Ask 3 or 4 specific jurors, then go row by row]. NEGLIGENCE: 6. The law in Texas says that if a doctor does something that falls below the standard of care and his patient dies, the doctor is legally responsible. [Pick a juror] [Juror s name], do you agree or disagree with this law? Why? 7. Is there anyone on the panel who disagrees with this law or feels that a doctor should not be held accountable if he does something that causes his patient to die? 8. [Pick a juror] [Juror s name], some people feel it is likely or possible that a doctor would make a mistake that would cause his patient to die and other people feel it is very unlikely or impossible that a doctor would make a mistake that would cause his patient to die. What is your opinion about this? 9. I d like to know who on the panel feels it is very unlikely or impossible that a doctor would make a mistake that would cause his patient to die? DEFENSES (YEAH, BUTS): 10. We expect Dr. Jones to stand before you and say that he followed the proper procedure and that the patient was fine when she left his care. My question is this: will each of you wait until you hear all the evidence before deciding whether Dr. Jones was negligent? 11. We expect Doctor Jones to say that if anyone was at fault it was the doctors who saw Ms. Smith after she left his care. [Pick a juror] [Juror s name], if at the end of the case you felt that the care given by Dr. Jones was not a cause of Mrs. Smith s death, will you find that he should not be held responsible? 12. [Pick another juror] [Juror s name], on the other hand, if at the end of the case you believe that Dr. Jones did contribute to Mrs. Smith s death, will you find him responsible? Page 3 of 13

4 FAVORING FAMILY OVER THE DOCTOR: 13. The law requires jurors to treat parties to a case the same. That means that a juror can not treat the doctor more favorable than the family and the family can not be treated more favorably than the doctor. Does anyone disagree with this law? 14. So in a few minutes the defense lawyer is going to stand up and he may ask if anyone on the panel will start the trial favoring the family. Can each of you assure me and the defense lawyer that you will set aside whatever sympathy you have for this family and decide this case on the evidence and the law? FILING LAWSUITS: 15. Which of the following best describes your feeling or opinion about a family suing a doctor for medical malpractice: strongly approve, approve, oppose or strongly oppose 16. [Pick a juror] [Juror s name], If you or a loved one were the victim of medical malpractice, would you: Sue the doctor or not sue the doctor? WHY? 17. Is there anyone on the panel who feels that if a doctor committed medical malpractice that you WOULD NOT sue the doctor? DOCTORS: 18. Has anyone on the jury panel ever worked for a doctor, clinic or hospital? 19. What did you like and dislike about working for that doctor, clinic or hospital? 20. Some people would like to work for a doctor, clinic or hospital and other people would not like to do that kind of work. How many people on the first row would like to work for a doctor, clinic or hospital? Who on the first row WOULD NOT like to work for a doctor, hospital or clinic? 21. Have you ever had any type of medical training? Please tell us about that. 22. Do you know any doctors or medical professionals on a personal basis? Please tell us who you know and how you know this person. 23. What are your feelings or opinions about doctors in general? 24. What would you consider to be characteristics of a good doctor? 25. What would you consider to be characteristics of a bad doctor? 26. What do you expect from a doctor? 27. What duty or obligation does a doctor owe to his patients? Page 4 of 13

5 28. Give me an example of what you would consider to be a mistake, error or negligence by a doctor? 29. Give me an example of what you would consider to be a mistake, error or negligence by an emergency room doctor? 30. Some people would never question a doctor or his method of treatment. I need each of you to tell me if you are the kind of person who would or would not question a doctor or his method of treatment? [Start with juror #1 and ask each person in the panel this question] 31. Have you ever been treated in an emergency room? Would you tell us about that? 32. In terms of the quality of care a patient has the right to expect from an emergency room doctor, do you feel the patient is entitled to better care, less care or the same amount of care from an emergency room doctor than any other doctor? Why? 33. Is there anyone on the jury panel who feels that a patient who sees an emergency room doctor should not expect the same quality of care than the patient would receive from any other kind of doctor? 34. Have you ever felt that your doctor was not giving you proper care? Would you tell us about that? 35. How long have you been with your current doctor? 36. How many doctors have you seen in the past 10 years? 37. Have you or any family member ever had a bad experience with a doctor? 38. If a doctor made a mistake (or, if a doctor s treatment fell below the standard of care), and a patient dies, I want to know if you feel that the family should or should not sue the doctor? [Ask each person in the panel this question] 39. Do you believe that doctors make more mistake, the same number of mistakes or less mistakes than other professionals? [Ask each person in the panel this question] 40. Do you believe that emergency room doctors make more mistake, the same number of mistakes or less mistakes than other doctors? [Ask each person in the panel this question.] 41. Would you say your opinions of doctors are: very positive, positive, slightly positive, negative or very negative? Page 5 of 13

6 42. When I was young, my family had the same doctor for years and my parents never would have sued this doctor. Does anyone on the jury have similar feelings? MEDICAL MALPRACTICE LAWSUITS: 43. What is the first thing that comes to your mind when you think about a medical malpractice lawsuit? 44. Have you ever heard, read or seen anything in the media about any case involving medical malpractice? What did you feel about what you heard, read and saw? 45. Have you ever experienced a situation with a doctor that you would consider to be medical malpractice? Would you tell us about that? 46. What are your feelings about lawsuits against doctors, in general? LAWSUIT ABUSE: 47. There are some people that have such strong feelings about lawsuit abuse that it would affect there ability to be a totally fair and impartial juror in a personal injury case. Are there any members of the jury panel that have such feelings about lawsuit abuse? PAIN AND SUFFERING DAMAGES: 48. Are there any members of the jury panel that have any personal, moral, or religious opposition to awarding money in a personal injury case, even when supported by evidence? 49. There are some people who could never award millions of dollars to a family, no matter what the evidence showed or even if a person died. Are there any members of the jury panel who could not award millions of dollars to a family when a person has died? 50. Some jurors have no problem saying a person is entitled to money for medical expenses, lost wages and other things that can be counted or measured. Other jurors have a definite problem awarding money for damages such as mental anguish or pain and suffering. [Pick a juror] [Juror s name], How do you feel about saying a family is entitled to money for damages such as mental anguish or pain and suffering? How many people on the panel would have a problem awarding money for pain and suffering? 51. Jurors have told me that even if the law says a family only has to prove by a preponderance of evidence that they are entitled to millions of dollars for pain and suffering, they would want more than a preponderance of evidence before they would award such an amount of money. I want to know how many jurors agree that you would require me to present more than a preponderance of evidence before awarding millions of dollars for pain and suffering (mental anguish)? Page 6 of 13

7 OBJECTIONS: 52. During the trial, there are rules which govern how a witness should answer a question. If I feel the witness is breaking one of those rules, I have a duty to object. How are you going to feel if I have to object often while a witness is testifying? 53. During a football or basketball game, if a referee sees an infraction, there is a flag thrown or a whistle blown. The same thing is true in a courtroom -- we call it an objection. None of us like to watch games with lots of fouls, but if fouls aren't called, the game gets out of hand. I am concerned that I may have to object quite often during this trial. How are you going to feel if I stand up and object a lot? 54. Some jurors get offended/distracted when a lawyer objects too often. Other jurors are not affected by this process. How do you think you will react? SYMPATHY: 55. The law also says that you can not decide who should win the case based on sympathy. I want to be the first one to tell you that the families are not seeking any sympathy. I want to make sure that there is no one on the panel who would decide this case based on sympathy. Can everyone assure the Defendant that you will not decide this case based on sympathy? TORT REFORM: 56. I think everyone on the jury has heard or read about tort reform which involves limiting the amount of money that a jury can award. How many members of the panel agree with tort reform and feel that the amount of money that a jury can award in a case should be limited? 57. [Ask each juror] Generally speaking, how strongly do you agree or disagree with limiting the amount of money that a jury can award in a case: strongly agree, agree, disagree or strongly disagree with limiting the amount of money that a jury can award. JONES: 58. I know that there was a question on the questionnaire regarding Dr. John Jones, but just to make sure, let me ask this question, has anyone heard of, worked for, is friends with or a patient of Dr. Jones? MISCELLANEOUS: 59. When you have a very important decision to make, do you make it with your heart or your mind? 60. From what you have heard so far about this case, is there anyone who would start the trial favoring the Doctor, even if only slightly? Page 7 of 13

8 61. Is there anyone sitting out there right now thinking to themselves, from what I ve heard so far, I m already leaning or favoring the Doctor? 62. [Ask each and every juror] I need each of you to be as honest with me as you can when I ask you this question: Are we starting out this trial even with the Doctor or is the Doctor starting this trial ahead, even if just slightly? 63. It would not be fair to the Doctor if there were jurors sitting out there that had a bias or prejudgment against him. Does everybody agree that would not be fair to the Defendant. The reverse is just as true: It would not be fair the family if there were jurors sitting out there that had a bias, prejudice or prejudgment against them, this kind of case, or even their lawyers. So, I ask that you be as honest with yourself and us and tell us if any of you are starting out this trial with any bias or prejudgment against us, if so, please raise your hands. 64. Is any one on the jury panel a member of CALA (Citizens Against Lawsuit Abuse) or any other group or organization that favors limiting the amount of money a person is entitled to recover in a lawsuit? 65. Is there anyone sitting in the panel saying, if only Mr./Ms. [Your Name] had asked me this question, he would have learned something very important about me? 66. Is there an question I should have asked that would have told me a lot about how you feel about a case like this? 67. Does any member of the jury panel feel that lawsuits against doctors are overblown? Please raise your hand if you feel this way. 68. There are some people that have such strong or negative feelings about people who sue doctors for malpractice that they might not be a totally fair and impartial juror. Are there any members of the jury that have such strong or negative feelings? 69. Does anyone on the jury panel have such negative feeling about lawyers who sue doctors or hospitals that it might affect your ability to be a totally fair and impartial juror? 70. I want to talk to you about several concerns that I have about this case and see if anyone on the panel agrees that I should be concerned. First, I know that some people dislike or are prejudiced against people who are extremely overweight or obese. Does anyone on the panel have strong feelings or a prejudgement about people who are extremely overweight? 71. I want to be the first person to tell you that Mrs. Smith was 5'4" and weighed 250 pounds at the time she died. Does anyone on the jury panel feel that someone who weighs that much can expect to die at the age of 30? Page 8 of 13

9 72. Anyone feel that a person who weighs that much is not entitled to the same quality of health care as someone who is in good shape and not overweight? 73. Is there anyone who feels that the fact that my client was so overweight that it might affect your ability to be a totally fair and impartial juror? 74. Another concern that I have is that my client was taking birth control pills and I know that some jurors have very strong and very negative feelings about people who take birth control pills. Is there anyone on the panel who has such strong and negative feelings about a person who takes birth control pills? 75. A final concern that I have is that Mrs. Smith was African American and some people would feel very uncomfortable awarding a large amount of money to someone who was African American. Is there anyone on the panel who feels this way? 76. Along these same lines, I m concerned that there may be some jurors who might be thinking that a doctor committed malpractice but the family should not get a lot of money because the juror doesn t have a lot of money. Is there anyone on the panel who feels this way? 77. Will everyone on the panel assure me that if you are chosen as a juror in this case, that you will not limit the amount of money this family is entitled to receive because the family may end up receiving a great deal of money? Page 9 of 13

10 CHALLENGE FOR CAUSE Inability to Award Money for Pain & Suffering Damages 1. [JUROR'S NAME] You told us that you would have a problem awarding money for noneconomic damages such as mental anguish or pain and suffering. I appreciate your sharing that opinion with us. Would you mind telling us a little more about your feelings or opinions about this? 2. Would you agree with me that it would be difficult for you to think of a case where awarding money for pain and suffering would be appropriate? 3. I want you to know that there is absolutely nothing wrong with your having these feelings. Let me ask you this, wouldn't you agree with me that you could probably be a good juror in this case if we were not asking for non-economic damages? 4. What I hear you saying is that you could award money for medical bills or lost wages but you do not think it is fair or right that individuals should receive money for pain and suffering in a case like this regardless of the evidence? 5. Would it be fair to say that you have very strong feelings about this issue and that you have held this view for quite a while? 6. In light of what you told us, wouldn't you agree with me that it would be very difficult - if not impossible - for a person to set aside strong opinions or views that they have held for quite a while? 7. [JUROR'S NAME], even if the law and evidence allowed money for non-economic damages, you disagree with this law, and you have every right to disagree with this law? 8. As much as you would like to set aside your feelings about awarding money for noneconomic damages and follow the law that the judge will give you, it s only human nature that you really would not be able to do that. Wouldn't you agree with me? 9. [JUROR'S NAME] I can't tell you how much I appreciate your honesty on this subject. Given what you have told us and how strongly you feel about it, wouldn't you agree with me that the plaintiffs are starting out with a little bit of a disadvantage since you know we are seeking money for non-economic damages and you have negative feelings about that? Wouldn't you agree with me that the plaintiffs are starting out at a disadvantage? 10. And, would you agree with me that in order for a person to be totally fair, neither side should be starting out with a disadvantage? 11. And, therefore, [JUROR'S NAME], wouldn't you agree with me that while you might be perfect in every other case here at the courthouse, that you wouldn't be totally fair to my clients if you were chosen as a juror on this case? 12. [JUROR'S NAME], I can't tell you how much I appreciate your honesty on this subject. Under the circumstances, do you mind if I ask the judge to excuse you from serving as a juror on this particular case? Page 10 of 13

11 CHALLENGE FOR CAUSE Juror Formed Opinion Based on Tort Reform 1. [JUROR'S NAME], You told us that you agree with tort reform. We certainly appreciate your being honest and candid with us. Would you mind telling me a little bit more about your feelings about tort reform? 2. I have the sense [JUROR'S NAME], that you have very strong feelings about this topic. Wouldn't you agree with me? 3. Given your strong feelings about this case, wouldn't you agree with me that it's only human nature that these feelings would affect your ability to be a totally and completely fair and impartial juror in this case? 4. Wouldn't you agree with me that it is only human nature that if a person has negative feelings based on their feelings about tort reform, that it would be very difficult for them to be a totally fair juror in a case like this? 5. Given your feelings about this kind of case, wouldn't you agree with me that my clients are starting out at a little bit of a disadvantage? 6. Wouldn't you agree with me that in order for a person to receive a fair trial that neither party should start out at a disadvantage? 7. Wouldn't you agree with me that if this were a different kind of case that you would start each of the parties out on a level playing field and that neither side would start out with an advantage? 8. Isn't it human nature that once we have formed an opinion or feeling about something, it is difficult to set that opinion or feeling aside? 9. I have the feeling that as much as you would like to be able to set aside your feelings about this kind of case, that it is only human nature that you really couldn't. Wouldn't you agree with me? 10. Since you have expressed your views on this subject, wouldn't you agree with me that there is nothing that the lawyers for the defense or that the judge could say that would change your mind? 11. [JUROR'S NAME], I can't tell you how much I appreciate your honesty on this subject. Given all the circumstances and what we've just talked about, do you mind if I ask the judge to excuse you from serving as a juror on this particular case? Page 11 of 13

12 REHABILITATION Hardship 1. [JUROR'S NAME], you have told us that serving on this jury would cause a financial hardship. I certainly can understand and appreciate your situation, but let me ask you this -- If, God forbid, you were to get sick or were to go on an extended vacation, you would have the finances to pay your bills would you not? 2. You would agree with me that jury duty is something that you take as a very serious duty and obligation for all American citizens, don't you? 3. Wouldn't you agree with me that whenever people are asked to serve their country or serve their community that everyone has to make sacrifices? 4. If you were selected to be on this jury and if you could contact your office during breaks, over the lunch recess, at nights and on weekends, you would be willing to do that, wouldn't you? 5. If you were chosen to be a juror on this case you would follow the law, listen to the evidence and testimony in this case, would you not? 6. You would set aside the personal inconvenience or problems that jury services have so that you could perform your duty for your community, wouldn't you? Page 12 of 13

13 CHALLENGE FOR CAUSE Inability to Award Money for Punitive Damages 1. [JUROR'S NAME] You told us that you feel that punitive damages are not appropriate. I appreciate you sharing that with us. Would you mind telling us a little more about your feelings regarding punitive damages? 2. Would you agree with me that given your feelings about punitive damages, it would be extremely unlikely for you to consider awarding punitive damages in a case like this? 3. I want you to know that there is absolutely nothing wrong with your having these feelings. Let me ask you this, wouldn't you agree with me that you could probably be a good juror in this case if we were not asking for punitive damages? 4. What I hear you saying is that you do not think it is fair or right that individuals should receive punitive damages in a case like this regardless of the evidence? 5. Would it be fair to say that you have strong feelings about this issue? 6. In light of what you told us, wouldn't you agree with me that it would be very difficult - if not impossible - for you to set aside these feelings you have about punitive damages? 7. [JUROR'S NAME], wouldn't you agree with me that even if the law and evidence allowed for punitive damages it would be almost impossible for you to award punitive damages in a case like this? 8. As much as you would like to set aside your feelings about punitive damages and follow the law that the judge will give you that it is only human nature that you really would not be able to do that. Wouldn't you agree with me? 9. [JUROR'S NAME], I can't tell you how much I appreciate your honesty on this subject. Given what you have told us and how strongly you feel about it, wouldn't you agree with me that the plaintiffs are starting out with a little bit of a disadvantage since you know we are asking for punitive damages and you do not agree with awarding punitive damages? 10. And, would you agree with me that in order for a person to be totally fair, neither side should be starting out with a disadvantage? 11. And, therefore, [JUROR'S NAME], wouldn't you agree with me that while you might be perfect in every other case here at the courthouse, that you wouldn't be totally fair to my clients if you were chosen as a juror on this case? 12. [JUROR'S NAME], I can't tell you how much I appreciate your honesty on this subject. Under the circumstances, do you mind if I ask the judge to excuse you from serving as a juror on this particular case? Page 13 of 13

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