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Voir Dire in the Age of Juror Bias

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Voir Dire in the Age of Juror Bias 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 lawyers, 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 lawyer 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
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