TRIAL* October 2001

Thelate, greattriallawyerMoeLevine explainedhisphilosophy ofchoosing a Voir dire jury this way: You begin to select a jury, and your purpose is only, or should be, to impress them with you, with the interesting facets ofyour case, and to hope that they will reserve their Judgment as to the irritation which has brought them to in the age the Jury box until they've heard more about it. If you have selected yourJury, not in order to win the case but to develop in them toler ance towards you and your cause, 1beg ofyou to believe that's all you can do in selection of a ef juror bias Jury.Youcan't win it at that point. Youcan lose it. Youcan'twin it. Just let the Jury know by your questioning [and] demeanor that you are a lawyerdedicated to truth, that you will have Don't tiptoe aroundattitudespotentialjurors may an exciting, interesting case to present to them, that you will present it to them with the have—findout what they think. Asking the right best skill of which you are capable, that you questions can make orbreakyourcase. will ask for no verdict not borne out in the evi dence, and let it go. If they tolerate you through this, you will have a springboard for your case. Your case will be won or lost during the proof, and your case will not be won or lost byopening, selection, orsummation.' Mark R. Kosieradzki Levine's teachings are more important today than ever. As plaintiff , we start trials at a disadvantage. Current research has shown thatjurorsare skepti cal of lawsuits, particularly personal injury suits. They believe there are too many friv olous cases. They believe that the only ones who benefit from the legal system are the lawyers who file the cases: specifically, plaintiff attorneys. They come to the courtroom believing that lawyers will lie during trial, that lawyers care more about money than about their clients, that lawyers will say what they need to say regardless of the truth, and that lawyers \ cannot be trusted.'' Understanding these widely held atti tudes is crucial to the successful advocacy of your client's cause. Voir dire is more than a selecting a jury; the jurors

Mark R. Kosieradzki practices law in Minnetonka, Minnesota. He acknowl edges attorney Greg Cusimano andjury consultant Charli Morris for their teachings andguidance in juryselec tion andsocialscience.

65 TRIAL •October2001

are selectinga lawyer. Manyare lookingfor Jurors want to each person feelabout localcrime, layoffs, confirmation oftheir negative preconcep and high-profile lawsuits? tion oflavy^ers. Theyare decidingwhether make decisions Consider cultural stereotypes—not to eitherofthe lawyerswill try to manipulate determine what stereotypical jurorsyou them. Theyare trying to determine which based on facts, are seeking, but to evaluate individual lawyeris more believable. jurors' stereotypes.For example,what atti Bycommunicating directly with panel not emotion. tudes do jurors have toward categories of members during the selection process, people, such as teenagers, construction you initiate the first subtle step in the As the evidence is workers, or farmers? Dothey believethat advocaqrofyour case.Voirdire isthe first womenshould notuse industrial machin opportunity for jurors to get to knowyou. developed, jurors ery? Do they think most minorities are It is your first chance to establish your criminals by definition? Are they suspi credibility as a lawyer, which you must will go to cious ofpeoplefirom othercommunities or have in order to persuade the jury to their hearts large cities? acceptyourview ofthe facts. For years, jurors have been inundated The trial must be viewed as a whole, on their own. with propaganda claiming that the civil integrated well, and carefully developed. justicesystem is outofcontrol. Asa result, Although jury selection is an extremely many believethatciviltrials are a legallot importantaspect, everypart ofthe trial has uncomfortable emotion thatmakes people teryforthe benefitofundeservingplaintififis a purpose in the artofpersuasion.Attempt feelpowerless and vulnerable. Jurors will and their lavvyers. Researchhas shown that ing to try your entire lawsuit during voir avoid acting out of sympathy and over- many jurors think defendants and insur diremaybenot productive, but damaging. compensate in favorof the defendant ance companiesare the victimsin personal At the beginning of a trial, potential Ifth^^ believeyou are trying to appeal to injury lawsuits.® Theybelievethatthe tort jurorsare understandably nervous. They their sympathy, jurors will think you are system has abrogated personal responsi have beenassembled for the nebulous task trying to manipulate their perception of bilityand enabled peoplewho are injured of doing justice. Their liveshave been dis the factsand their decision-making. Jurors to shift the blame away from their own rupted. They have been called away from wantto make decisions based on facts, not negligent conduct.^ their homes, their businesses, and their emotion. As lawyers,we must predispose An effectivevoir dire strategy does not families. They anticipate being asked to themto hearourfactual caseattheoutset make enemies ofjurors influenced bypol makelife-altering decisionsforpeoplethey There will be time for emotion in later itics. Voir dire is notthe time to debate the do not know. Therulesofthe gameare dif phases ofthe trial. Asthe evidence is devel propriety of the McDonald's coffeecase or ficult to understand and follow. oped in the proper sequence, jurorswillgo the needfortort"reform."Firmlyheldatti Despite their fears, jurors believethey to their heartsontheir own. tudes cannot be changed in the course of are part of the bestjustice system in the voir dire. world.^ They believe it is their job to Learn jurors' attitudes Byrecognizing these deep-seatedopin ensure that the truth is found and not An effectivevoir dire strategy identifies ions, however,you can implementa strat manipulated. the central issuesthat willaffecthowjurors egy to presentyour client's case in a way Jurors have been instructed by the view the evidence. Pretrial research and that distinguishes it from the supposedly court, or taught in jury orientation, that focusgroups can help identifythose issues. stereotypical personal injury lawsuit. By the purpose of voir dire is to determine Ultimately, your ability to identify poten asking legitimate and thoughtful ques whether anything in their lifeexperience tial jurors' attitudes and opinions regard tions, you can establish credibility as an willimproperly influencetheirjudgment ing those issues will determine the effec attorney who is attempting to be fair in If your conduct is inconsistentwith their tiveness ofyourvoir dire. selecting an impartial jury. If the panel concept of the purpose of voir dire, they Negative attitudes about the legal sys trustsyou at the end ofvoir dire, you have will perceiveyou as untrustworthy. tem, lawsuits,and lawyersare prevalent in ipvercome your first obstacle. Attempts to appealto emotion early in a almost everycase.Manypeoplethink there trial are not persuasive and can bediunag- are too many "frivolous"lawsuits.Theyare "ndkabout lawsuit *abuse' ing.Asone commentatorhas written, "Old oftenphilosophically opposedto awarding Advertisements bemoaning the so- assumptions that relyon jurors' empathy mon^for intangiblessuch aspain and loss called insurance crisis orlawsuitcrisis are forthe underdogorskepticism toward laige ofgood health.® meant to draw the public's attention to corporate defendants are no longer viable Besides knowing the universal biases product development, medical services, when preparing for trial or making deci that arise in most cases, you should recreational programs, and other areas sions aboutvoir dire and jury selection."* become familiar with controversicd issues thatallegedlyhave been adverselyaffected Sympathy is a poor motivator. It is an percolatingin your community. Howdoes by "baseless" or "inflated" legal claims

66 TRIAL •October2001

against manufacturers, health care pro potential Juror through a high-priced adver ticular circumstances ofthe case and the viders, and otherdefendants. tisingcampaign,... theythreaten everyplain inquiry involved.'® tiffs right to an impartial jury. In such cases, The purpose ofvoir dire is to probe the it is only ^rthatattorneys havesome means attitudes of prospective jurorsso counsel to secure this right for their clients. Liberal Mindyourtechnique can intelligently exercise challenges for voir dire is the bestmeans to this end." When interviewing potential jurors, be cause and peremptory challenges to select mindful thatmany do not like to be inter an impartial jury.® Questions designed to Historically,courts have allowedques rogated. They do notwant their integrity elicit jurors' biases, prejudices, interests, tions aboutjurors'connectionswith a par questioned. They are concerned that inclinations, and feelings, as well as their ticular insurance company,'® including lawyers will try to manipulate them and qualifications, are permitted in voir dire.® those regarding their stockholdings or the truth. They resent lawyers who argue Whether you may ask questions about other interests in the company.*® the casewith leadingquestionsduring voir potential jurors' attitudes toward the tort Where a party is "denied a legitimate dire. Such questions make them feel as if "crisis" rests with the sound discretion of right to inquire about the particular they are being cross-examined. the court Manyjurisdictions have upheld [insurance] companies interested in the Thinly veiled attempts to ingratiate the right to inquire into the impact of litigation,"an appealscourt mayfindthat yourself or to manipulatejurors' personal insurance "crisis" advertising to ensure the denial constitutes an"abuse ofdiscre opinions only alienate them and reduce thata plaintiffhas a fair trial beforea jury tion" representing a "serious mistake in your credibility. Ifyouargue your casedur thatis notpredisposed to returna defense the conduct of the proceedings" that ingvoir dire, notwithstanding your dis verdict'" threatens a party's constitutional rightto claimers,you do notappear to be fmr. Ifyou This form of systemic jurytampering receive a feir trial.'* confirm the stereotype of a manipulative was best recognized in Borkoskiv. Yost. Apartymayalsobe foundto haveabused lawyer during voir dire, it will be almost The MontanaSupreme Court stated: its discretion ifit does not providethe sub impossible to earn credibilityduring trial. Wheninsurance companiesinjectthe issueof stantial equivalentofinquiryregardingthe Donot be afraid to encourage jurors to insurance into the consciousness of every insurance "crisis," depending on the par- eq)ress their truefeelings.TTiere is no such

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thing as"poisoning thepanel." The poison shortqueries, todevelop a line ofinquiry. ence ofa child darting in front oftheir isalready there. Those selected will express For example: vehicle? their opinions during deliberations, soitis • Whatwasyour reaction? • Howmany ofyou haveeverbeen in a bestto identify thoseattitudesat the out • Would you tell us about an incident crash where the injuries ordamage were set, when you can still dealwith them. that comes to mind? worse thanyoufirstthought? By encouraging candor, youwill em • Whydoyou thinkso? Withan understandingofthe panel's powerbiasedpeopleto removethemselves • Doyoufeel thesameway? attitudesandexperiences, youwill bebet from thepanel, oryouwill establish a basis • Wouldyou explain? ter equipped to selectjurors receptive to for acause challenge. Your peremptory chal • Would you tell us more? your case. Then you may call witnesses lenges ofthosewhoremainwill bebased on • I'mnotsureI understand. Could you whowill bondwithparticularjurors. solid positions, asopposed toconjecture clarifythat point? If you ask the right questions in the derived from stereotypes aboutjurors. • Howdidthataffectyou? rightway, you canestablish credibility with The bestvoirdireisonefull ofopen- • Whom doyou blame? the juryat the outset of the trial. From ended questions that encourage candor • Wereyou satisfiedwith the outcome? there,you will beable to develop the evi without telegraphing ananswer. Sample Why?/Why not? dence andpersuade thejurythroughout questions follow. • What impression did thatexperience the case. By talkingwithpanelmembers • How doyoufeel abouta personwho make on you? withoutfear ofananswer youmightnot brings acivil lawsuit toresolve adispute? • Canyougivean example? like,you learnwhatyouneedto knowto • What areyour feelings about money • How do you feelabout it? choose a favorable juryandimprove your damages thatareawarded toan injured Makesure the jurors knowthere are no client's chances ofsuccess. • person forpainandsuffering? right or wronganswers. Show genuine • Whatwould youdo ifyouthought interest. Notes you were injured becauseofsomeone else's 1. MOE LEVINE, THEBESTOFMOE: SUMMA Let them know you care about what they TIONS 19,24 (1983). negligence? have tosay, even ifyou don'tagree with it 2. Gregoiy Cusimano, What Every DialLmyer • Have you oryour femily ever thought Reward thenegative answer by saying, for MustKnowMoutJury BiasinAutoCases, Course thatyou had a good reason tobring a law example, "Iunderstand how you feel," "Lots Materials, ATLA Jazzfest 2001; JAMES PATTERSON suitbutdecided against it? Would you tell ofpeople feel thatway," "Thankyou for your & PETER KIM,THE DAY AMERICA TOLDTHE us about it? TRUTH: WHAT PEOPLE REALLY BELIEVE ABOUT honesty," or "Iwould not besurprised if EVERYTHING THAT REALLYMATTERS (1991). • Have you,your family members, or other people onthepanel feel thesame way." 3. AM.BARASS'N, PERCEPTIONS OFTHEU.S. friends ever been involved in a lawsuit? Ifyouwatch the jurors carefully and JUSTICE SYSTEM (1999),fli;ai7(ffWefl/\vww.abaneL Howdo you feelabout that? maintain eyecontact, youwill learn a lot org/media/perception/perception.html (lastvisited • Whatdoyouthink whenyouseea about them. Aretheybitter about life? Are Aug.28,2001). teenager on a motorcycle? 4. LoisHeany, Jury Selectionin theEra ofTbrt they moralistic? Intolerant ofambiguity? /?e/&n7?, 'TRIAL, Nov. 1995,at 72. • How do you feel about women who Autfioritative? Conservative? You may not 5. David A.Wenner&GregoryS. Cusimano, useindustrial machinery? learn allofthisinonepointed question and CombatingJurorBias,TRIAL, June 2000, at 30. • How do you feelabout doctors? answer, or eventwo—buttheir responses, 6. PATTERSON &KIM,5ifljrfl note2. You canencourage candorbyacknowl considered together, will help create apic 7. Id. edging societal biases. Forexample: 8. See, e.g.,Antletz v.Smith,106N.W. 517,518 ture ofthe wholeperson. (Minn. 1906); Darbin v.Nourse, 664F.2d 1109 (9th • Many people think there are too Evaluate thepanel notonly individually Cir.1981). many lawsuits. What doyou think? butalsoasa group.Whowilllead? Whowill 9. See State v.HaydenMillerCo., 116 N.W.2d • We often hear that people turn to follow? Which jurorswill bringempathy, 535 (Minn.1962). courts too quicklyto solve problems. Do technical knowledge, or negotiation skills 10. See,e.g..United Statesv.Hall,536F.2d 313, 324(10thCir. 1976); Kieman v.Van Schaik, 347F.2d think so? to the deliberation room? 775(3dCir. 1965); Borkoski v.Yost, 594P.2d 688, • Somepeople believe that injury isa In addition to indicating potentially 694-95 (Mont. 1979); Kingv.Westlake, 572S.W.2d basic riskofworking ona construction site. favorable andunfevorable jurors,voirdire 841,843-44 (Ark. 1978); Babcock v. N.W.Mem'l Doyoul can create connectionsamongyou,your Hosp., 767S.W.2d 705,708-09(Tex. 1989). Empower jurorstogive negative answers client, andjurors by highlighting common 11. Borkoski,594P.2d 688,694. bystructuringyourquestion likethis:What 12. Lesewski v. Nielsen, 95 N.W.2d 13 (Minn. life experiences. For example, you can 1959). concerns doyouhave aboutgiving money phrase questions likethis: 13. Spoonickv. Backus-Brooks Co., 94N.W. 1079, to people forinjuriestheyhavesuffered? • If you've had to make the difficult 1081 (Minn. 1903). Anticipate potential answers, and be decision aboutwhere yourelderly parents 14. HuntV. Regents ofUniv. ofMinn., 446N.W.2d prepared to askfollow-up questions. The orotherrelative would spend thelastyears 400, 407 (Minn. Ct. App. 1989), rev'd on other more you encourage a juror to talk, the grounds, 460N.W.2d 28 (Minn. 1990). oftheir life, would youraise yourhand? 15. Leonard v. Parrish, 420 N.W.2d 629, 634 moreeffective thevoirdire. Use probes, or • Who hashadthefrightening experi (Minn. CLApp.1988).

69 How TO Win in Cross Examination Gerry Spence demonstrates and explains how to prepare and execute cross examination through courtroom footage and personal commentary.

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