Your Honor, Stop Screwing up My Voir Dire!

Your Honor, Stop Screwing Up My Voir Dire!

Connie Henderson, TLC ’01 rial lawyers are, by necessity if not by nature, an obsessive this case is that there is no question that these two gentlemen got lot. The glacial pace of civil dockets allows us ample time into a fistfight. I have to admit there is a part of me that thinks to analyze each aspect of our case from every perceivable anyone who hits another person has committed a crime. Does Tangle. By the time we enter the courthouse on the morning of anyone else feel that way?” Instantly, several hands shot into the trial, we’ve had plenty of time to thoroughly prepare, fine-tune, air. I had to remind myself that this was a good thing…this is and practice our opening statement, the direct examinations, the how it was supposed to work. The first juror I talked with said cross examinations, and closing argument. “As far as I’m concerned if he hit someone, he’s guilty.” I thanked The same cannot be said for jury selection, which is why it the juror for his honesty and began talking with him about his has always been the most nerve-wracking part of a trial to me. feelings on the question, with the plan that I would open it up Unlike the other elements of a trial, voir dire isn’t something we to the others and we would all explore this issue together. My can write out in detail, edit to our heart’s content, then practice hope was that we would eventually come to an agreement that it repeatedly until the notes are nothing more than an unnecessary is indeed possible for a person to consent to getting into a fight. security blanket. The very fluidity of the process of talking with Things did not go as planned. Just as I was getting ready to ask potential jurors makes my inner control freak a little bit crazy. whether any of the other jurors agreed with the view that it is When I attended the Trial Lawyer’s College in 2001, one of always a crime to hit someone, the Judge stepped in. This Judge the many lessons I learned was that my approach to voir dire is 6’10” tall, and does not hesitate to use that fact to his advan- needed a major overhaul. My trepidation when faced with the tage. He leaned over the bench and in his big, booming baritone panel of potential jurors came from a misguided (but very prom- voice said, “If I instruct you that the defendant is innocent until inent) old-school belief that the whole purpose of voir dire was proven guilty, you’ll follow my orders, won’t you?” to identify the jurors I needed to strike from the panel. My naïve The juror said yes—the jurors always say yes—and (with- hope was that I could somehow walk the tightrope and manage out thinking it through) I jumped up and objected to what the to do that in a way which was subtle enough to make it pos- Judge was doing. I then proceeded to quickly learn Lesson #1: sible to spot the people I needed to get rid of before they had a DON’T RAISE THIS ISSUE chance to taint the other potential jurors with their poisonous FOR THE FIRST TIME views. The idea of actually tackling the most difficult issues head IN THE PRESENCE OF THE JURORS on was revolutionary to me, and I was eager to put it to the test. My first jury trial after leaving the Ranch was a criminal case. It is not a good idea to explain to the Judge, in front of the My client Ron was charged with aggravated battery, i.e. causing jurors, that he shouldn’t try to rehabilitate a juror who has ex- grievous bodily harm by the unlawful touching or striking of an- pressed a bias. Needless to say, the Judge didn’t agree with my other against the will of the other. In preparing for by first TLC analysis—they’ve been “rehabilitating” witnesses forever—and voir dire, I’d had no problem identifying several issues about the he wasted absolutely no time at all putting me in my place. The case which troubled me. There was absolutely no question about jury panel watched as I was decisively smacked down, and from the fact that Ron had beat the living daylights out of the alleged that point on, none of the other potential jurors were willing to victim, Jerry. It was a good old-fashioned Friday night bar fight admit to having any preconceived notions of any kind. They had with at least thirty witnesses. Jerry owned the bar in which the seen what happened to the first juror, and to me, and they were fight occurred, and Jerry also happened to be the mayor of the wise enough not to expose themselves to the Judge’s wrath. In small Idaho logging town where the trial was being held. Ron short, my magical TLC voir dire went up in smoke. This was the was dating Jerry’s ex-wife Lori, and as Ron walked past him, beginning of my continuing search for a way to convince trial Jerry asked Ron how “whory Lori” was doing, and the fight was court judges they should stop interfering in the jury selection on. The law, of course, doesn’t recognize ‘fighting words’ as jus- process. tification for battery, so our defense was crafted on the ever-so- Realizing there had to be a better way, I went back to the slightly different theory that a person who says something like drawing board. I did an exhaustive Westlaw search (see West- that has implicitly consented to being “touched.” law key number 230K97(1), Jury, Competency of Jurors, Chal- After spending some time getting to know the jurors, I took a lenges, Objections, Bias and Prejudice) and combed through deep breath and said, “One of the things that concerns me about thousands of cases which discuss the propriety of attempts to

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The Warrior rehabilitate admittedly-biased jurors. I found a number of ap- Only by doing that can we increase the possibility that we will pellate cases which held that the trial court had abused its discre- be able to seat a truly impartial panel without having to coerce tion in attempting to rehabilitate prospective jurors. Armed with jurors into pretending they can and will set their beliefs aside. these cases, my next trial brief included a lengthy section about I finally started making progress when I realized I had to use the evils of juror rehabilitation, replete with quotes from cases some of the psychodramatic skills we learn at TLC and reverse all over the United States. The trial was a medical negligence roles with the Judge. Rather than just view the Judge as the en- case against the only clinic in a small town, and the Judge had emy, I needed to explore WHY Judges insist on trying to talk denied our motion for change of venue. I fully expected that we jurors out of their admitted biases. In my initial attempts to en- would have great difficulty seating an impartial jury, especially gage in the role reversal, I had a hard time getting beyond the if we could create an atmosphere that made it safe for them to thought that it was nothing more than a power struggle between honestly admit their reservations about entering a verdict against the Judge and what he saw as some upstart lawyer who thought the people they relied on for their medical care. she could come into HIS courtroom and tell HIM how to do As is often the case, the Court scheduled the hearing on all his job. Eventually, I talked to a friend who is a magistrate, and pre-trial motions for the morning of the trial, and I learned he helped me understand a little more about where the Judges Lesson #2: are coming from so I could be more effective in reversing roles. IF YOU WANT THE JUDGE They are taught about the necessity of maintaining tight control TO TAKE THIS ISSUE SERIOUSLY, of jury selection at the judicial college they are required to attend DON’T BURY IT IN YOUR TRIAL BRIEF when they first take the bench. In addition to the obvious need to get the jury empaneled quickly so the trial can be concluded The most compelling argument about how improper it is for on time, they have to be mindful of “judicial economy”, which the Court to coerce potential jurors into pretending they can set really boils down to dollars and cents. The court has to pay each aside their personal beliefs is not going to get the attention it of the potential jurors it summons, and while the amount paid 1 deserves if it is included in a 27-page trial brief. There, it simply per person is typically quite small, it adds up quickly when you gets lost in the midst of all the discussions of liability, causation, have multiple trials going at any given time. Their goal is to keep motions in limine, and other evidentiary issues. This problem is the cost down by bringing in the smallest number of jurors pos- compounded by the fact that many courts schedule the hearing sible. The overriding concern is that if they let one person who on any pre-trial issues for the morning of trial, which is simply admits to being biased off the hook, all the other potential jurors too close to jury selection to allow time for the Judge to digest will follow suit and they won’t be able to seat a jury. the rehabilitation issue. When I was able to loosen the grip on my conviction that Those problems notwithstanding, this approach worked a this was just an ego trip over who had control of the voir dire little better. The Judge didn’t rule on my motion to preclude at- and look at the practicalities, it all began to make sense. While I tempts to rehabilitate any juror who expressed a bias, stating he had the luxury of being totally consumed with this one trial, the would address the issue if and when it actually came up. When Judges have a calendar full of trials stretching far into the future. a potential juror said she thought she would have a hard time When I kept this in mind as I mentally reversed roles with the being fair and the Judge started to ask the typical questions they Judges, I could easily imagine the enormous pressure they are use to browbeat a juror into saying he or she will follow his under to get each of the trials done within the time allotted. instructions, I was able to simply lodge an objection “based on They are responsible for keeping the trial moving forward, and our pre-trial motion, to preserve the record.” This was a definite they simply can’t allow it to be too easy to get off the jury. While improvement over the first trial, when my objection came as I am still convinced that in most cases there is a heavy dose of a total surprise. The trial was not starting out with the jury in black-robe ego involved, I believe that with few exceptions, the a ringside seat to a battle between me and the Judge which I Judges know their job is to make sure the jurors are impartial would inevitably lose. The Judge didn’t abandon the rehabilita- and they want to do the right thing. My takeaway from this tion practice entirely, but he was much more restrained during process was Lesson #3: the rest of the jury selection process, which eventually resulted DON’T MAKE IT ABOUT THE JUDGE in a mistrial because we could not find twelve people who could BEING “WRONG” be truly impartial. The Judge recognized he should have granted the motion for Softening my approach has led to significantly more progress change of venue. He moved the trial to another county and re- than my earlier efforts, which could generously be called a bit scheduled it for the following month. I counted this as a win, of too strident. Rather than pointing a finger at the Judge and tell- sorts, but we had to go to the significant expense of rescheduling ing him how I think he needs to do his job, I approach it as a all of our expert witnesses and gearing up for trial a second time. problem we all need to solve. No one can dispute the fact that In reflecting on how to approach this differently, I realized it ob- jurors are required to be impartial, and everyone should be con- viously would have been much better if I had raised the juror re- cerned about what we need to do to make it safe for jurors to habilitation issue much earlier and in a stand-alone motion. The be honest about their feelings and beliefs. Rather than focusing whole point in raising this issue pre-trial is to alert the Court to solely on the conduct of the Judge, I modified the briefing to ask the fact that it needs to summon a larger pool of potential jurors. that no one be allowed to try to “rehabilitate” a juror who has

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The Warrior Your Honor, Stop Screwing Up My Voir Dire expressed a bias. While this avoids a full frontal attack on the will be grounds for reversal only if there is an abuse of discretion, Judge, I was well aware of the fact that it also means I can’t try which is almost an impossible standard to meet, but every state to keep someone on the jury who has admitted to a bias which has many appellate cases saying that if a juror is seated who failed would benefit my client. That wasn’t a huge loss, in my mind. to disclose a bias during voir dire, a new trial must be granted Realistically, the insurance lobby has been so effective in spread- for juror misconduct. The last thing anyone wants is to have to ing the tort reform message, it is extremely rare to come across try the case again, and the only sure way to avoid that is to err a juror who has a pro-plaintiff bias. If that were to occur, all the on the side of excusing jurors who are biased. We all know that rehabilitation in the world wouldn’t accomplish anything more just saying the magic words doesn’t make the prejudice go away, than assuring that person would be on the receiving end of a so once a juror admits to being biased, they need to be excused. peremptory strike by the defendant. Only by doing that can we assure that this case will be tried by A motion precluding attempts to rehabilitate potential jurors an impartial jury, without concern that a retrial will be necessary to accomplish its purpose is most effective if heard well in ad- because of a juror who failed to disclose his bias. vance of the trial. Talk to the Judge’s judicial assistant to find To be clear, I’ve never had a Judge issue an order precluding out when they will make the decision on how many potential rehabilitation of jurors. Without exception, they have taken it jurors to call, and have the motion scheduled to be heard before under advisement and said they will address the issue at the trial that date. I tell the Judge that I am filing the motion early so the if it becomes necessary. But filing this motion has made a differ- court can call a large enough pool to assure it can excuse any ence. We have an open and honest discussion about the issue, juror who expresses a bias and still be able to seat a jury. Over and it is done in a non-confrontational way. At the trial, after the years, I have pared the motion down considerably, under- my initial objection I ask for a standing objection to any efforts standing that a Judge in Washington doesn’t really care about to rehabilitate, so the court knows we are laying the ground- how courts in Tennessee may have ruled on the issue of juror work for an appeal. It has been my experience that after go- rehabilitation. ing through this process, Judges typically drastically reduce the The version of this motion I use in Washington civil cases is amount of “rehabilitation” they do. We have even had one Judge incorporated at the end of this article. I’ve been filing this mo- who bragged at the end of voir dire about the fact that he didn’t tion in one form or another for over 14 years, and it is rare for try to rehabilitate a single juror. the defense to file anything more than token opposition, citing The effort to get Judges to rethink their part in the jury se- a few cases which ruled that rehabilitation wasn’t an abuse of lection process has been a long and rocky road, but I am con- discretion and arguing that “we’ve always done it this way.” vinced that it is a worthwhile journey. Having the latitude to At the hearing, I don’t focus on discussing the facts of the cases talk openly with jurors about their feelings is absolutely essential cited in the motion. Instead, I talk about how it is essential that if we are to use the skills we learned at TLC effectively to explore we all work together and do everything in our power to make the tough issues in our cases. All we have to do is convince the the jurors know they can safely talk to us. I ask the Judge to Judges to get out of our way. q put himself in the jurors’ shoes. While he is in the courtroom Endnote every single day, I ask him to imagine what it is like to be called into court when you are completely unfamiliar with the process. 1 Seriously, write a trial brief. Don’t bring up ANY thorny issues for the first time during trial if you want to obtain a favorable ruling. Imagine how intimidating the very setting must be, and then EDITOR’S NOTE: The author’s Pre-Trial Brief on Juror Rehabilitation is imagine that you are surrounded by strangers while other people reproduced on the following pages. you don’t know ask you personal questions about your deepest beliefs. When you respond honestly, you then have an attorney Connie is a graduate of TLC 2001, and practices in Vancouver or the court grilling you about whether you will “be fair” and Washington in an all-TLC firm with her husband Paul Henderson put your beliefs aside. Being called on the carpet in front of ev- (TLC 1996) and son Jordan Taylor (Death Penalty 2011). She eryone else brings up two of man’s worst fears: public speaking, enjoys hiking, rafting, camping, skiing, traveling, and playing with and public humiliation. her grandchildren. I place a great deal of emphasis on the chilling effect the rehabilitation process will have on other potential jurors. Even though it is almost always possible to get a biased juror to say they will set their bias aside and “be fair,” watching that happen will inhibit the responses from other jurors. They aren’t going to want to be exposed to that process, and will be much less likely to admit their biases. This means the attorneys won’t even get the information needed to know how to exercise their peremptory challenges, and it also greatly increases the likelihood that we will end up seating jurors whose biases don’t come out until de- liberations. The Judges all know that their questioning of a juror

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