Volume MMXIX No. 3 November 2019 Adventures in Jury Selection By Hon. Kenneth J. Medel, Depart 66 Hall of Justice By far the most difficult jury trial skill is jury selection. All other tasks can be locked in before trial: Opening statements and closing arguments memorized; client’s direct examination script pre-screened and rehearsed in good faith with the client; the content of a direct exam script orally previewed with a cooperative witness; leading questions brilliantly organized for cross exam. In short, you can precisely pre-plan all the events of trial but one, and that is jury selection. The Honorable Kenneth J. Medel In my courtroom this adventure into the un- Occasionally, however, lawyers veer known involves chatting-up thirty-five nervous strangers to determine which twelve (plus two from these principles during jury alternates) can fairly judge your client and wit- selection. The following situations can nesses, your case and you. The natural angst of jury selection is compounded by the enormous make this Court uncomfortable: weight on your shoulders of all that lies ahead, 1.Juror as shill to promote theme. Some- all that must go right for you to win. To allevi- times attorneys take advantage of a juror as ate that discomfort, contemplate the following an unwitting shill to promote a theme: To il- issues that arise regularly during voir dire in lustrate, the San Diego Inn of Court Trial Pro- Department 66, San Diego Superior Court. First, understand that the guiding principle (continued on page 5) of jury selection is to ask questions only about a venire person’s qualifications or competence to sit as a juror. These simple themes should guide Inside This Issue your inquiry: “Can you be fair to both sides? Are you competent to sit as a juror? Is there some- REGISTER NOW to become a 2020 ABTL Member ................... p. 2 thing about the case, the parties, the witnesses President’s Letter | Randy Grossman .................................................... p. 3 or the attorneys that gives rise to bias or preju- dice? Is there a factor present in this case that Conceptualizing San Diego’s Civil Department 66 will distract or compromise you or make you By Angela Hampton ................................................................. p. 8 miserable given your life experience? Can you Flow State Depositions follow the rules and apply the legal principles?” By Conor Hulburt ............................................................... p. 13 These are the essential topics of jury selection. If your questions touch these core factors di- California Supreme Court Paves Way to Challenge rectly and with dispatch, you will be fine from a Out-of-State Choice-of-Law Provisions in Insurance Policies legal standpoint. By Ryan Caplan ............................................................... p. 16 California Case Summaries ADR™ November 2019 By Monty A. McIntyre, ADR Services, Inc ........................................................ p. 18 Holiday Tips From & A Tip of the Hat to The Rutter Guide on Civil Appeals By Rupa G. Singh ................................................................ p. 20 SAN DIEGO MEMBERSHIPMEMBERSHIP REGISTRATIONREGISTRATION NOWNOW OPENOPEN January 1, 2020 - December 31, 2020 BENEFITS INCLUDE • Diverse membership - plaintiff and defense bars, • “Meet the Judges” Series - Judicial Mixer and other federal and state judiciary, firms of all sizes and solo scheduled events throughout the year. practitioners. (Complimentary mixer w/dinner & complimentary Brown • Dinner Programs - topical, informative events, featur- Bag event(s) with MCLE credit) ing state and nationally known lawyers, judges and • At least four “Nuts & Bolts” and “Specialty MCLE” experts. (Member discount & MCLE credit) luncheons. (Complimentary event w/lunch & MCLE • Annual seminar at resort destinations - credit) October 8-11, 2020 at the Mauna Lani Resort on Big • Three issues of the ABTL Report - a professional pub- Island, Hawaii. (MCLE credit) lication containing articles of interest to business trial lawyers and judges. PRICING • Individual Membership - $100.00 Go to: • Litigation Dept. Membership - per person (all attys in office, min. 5) - $90.00 • Public Sector Attorney - $55.00 ABTL.ORGABTL.ORG • New Lawyer - Complimentary • Sitting Judge - Complimentary to register NOW! 2 RANDY GROSSMAN President’s Letter By Randy Grossman When was the last time you were inspired by trial advocacy? For me, the answer is approximately two weeks ago during a trial in federal court. I was particularly impressed by the opening statements. Counsel for both parties spoke eloquently about the evidence they expected to introduce. The advocates performed like veteran trial attorneys, but they were law students competing in the 2019 ABTL San Diego Mock Trial Championship. I had the pleasure to serve as a scoring juror and found the trial to be an inspirational way to finish another great year of ABTL programs and initiatives. The Mock Trial Competition was held at the fed- Finally, we made progress on two important eral courthouse on November 1st, 2nd, and 4th. initiatives to improve civility and professionalism Congratulations to the University of San Diego, in San Diego. On September 23rd, we hosted a our 2019 champions! Special thanks to Marisa roundtable discussion on civility at the San Di- Janine-Page and Frank Johnson for organizing ego County Superior Court’s conference room. another great tournament, and to the U.S. Dis- In addition, the San Diego County District At- trict Court for the Southern District of California torney’s Office and San Diego City Attorney’s Of- and U.S. Marshals Service for generously donat- fice recently agreed to provide a limited number ing their time, space, and resources to make the of volunteer trial opportunities to ABTL members competition a success. through our new Trial Attorney Partnership pro- gram led by Judge Victor Bianchini and the Trial We enjoyed several other programs since our Attorney Partnership Committee. last newsletter. On October 3rd through 6th, we convened at the La Quinta Resort for an informa- Thank you for the special opportunity to serve tive and entertaining Annual Seminar. On Sep- as the San Diego ABTL president. It was a privilege tember 12th, we held our second annual fund- to work alongside our judicial and attorney mem- raiser at Stone Brewing World Bistro & Gardens, bers, board of governors, judicial advisory board, where we raised money for the Mock Trial Com- officers, and our executive director, Lori McElroy. petition. On October 28th, we met for our fourth I look forward to spending more time with you in and final board meeting. We elected our 2020 of- 2020. Until then, have a nice holiday season. ficers – Alan Mansfield (President), Rebecca For- tune (Vice President), Paul Reynolds (Treasurer), and Judge Lorna Alksne (Secretary), and several new board and judicial advisory board members. We followed the meeting with a great dinner pro- Randy Grossman gram featuring Steven Peiken, the Co-Director of the SEC’s Division of Enforcement. 3 4 Adventures in Jury Selection (continued from cover) gram employs a hypothetical involving a dentist Logical, reasonable. But the lawyer pronounces who takes her kids to a mountain resort. Once triumphantly, “Wrong! The defense has no bur- settled in her room, she walks out to her car in den of proof. We don’t have to call the defendant the dark of night choosing a dirt mountain trail to the witness stand, call any witnesses, pro- instead of the lighted cement walkway. She falls duce any exhibits. We can just attack the pros- into a fire pit breaking her wrist. She sues the ecutor’s evidence as failing to constitute proof resort for negligence and there is a comparative beyond a reasonable doubt! Does everyone un- negligence affirmative defense. derstand that?” The defense lawyer asks the jury panel: “Does This is not a clever way to screen this issue anyone run as exercise?” A juror raises a hand, with the jury panel. The cost of the trick ques- “Yes”. Then the litany of pre-conditioning ques- tion is juror embarrassment. You might as well tions: “Do you take precautions when you run? have just screamed to that juror, “You big dum- Do you make every effort to run during the day- my!” time, and avoid the nighttime, to make sure you The legal pop quiz also appears in civil trials: are safe? Do you make sure you don’t go down “Mrs. Brown, what do you think the difference dark unfamiliar places like dark streets, alleys is between the “more likely that not” standard or trails? Do you carry a flashlight?”, etc. and and “proof beyond a reasonable doubt?” “How always concluding with the master stroke, “And would you define ‘negligence’?” My experience if you didn’t take such precautions and you fell is that the juror will get it wrong every time, or and hurt yourself, wouldn’t you take total re- simply sit in silent confusion. Do yourself the sponsibility for your own injuries?” favor of avoiding trick questions and legal pop Yes, you found the perfect vehicle to promote quizzes. Remember, you are trying to win-over, your comparative negligence defense. But what not alienate your prospective jurors. do these questions have to do with the juror’s Again, be direct with the juror: “Mr. Brown, “qualifications”? The lawyer is not exploring the this is not a case where we have to prove the juror’s competence or ability to be fair, not un- elements of the cause of action by proof beyond covering potential bias or prejudice. The only a reasonable doubt, but only must prove an ele- object of the questions is to precondition the ment to be ‘more likely true than not true’. Do jury panel by using this juror as an unwitting, you see the distinction? You won’t hold me to involuntary shill. This is not a proper function that higher criminal standard, will you?” In of voir dire. short, you tell the juror what the legal principles Rather, be direct with the juror: “Ms.