Presenting a live 90-minute webinar with interactive Q&A Jury Selection in Personal Injury Litigation: Connecting With Today's Jury Pool Using Effective Juror Profiling and Voir Dire to Pick the Best Jury Thursday, February 26, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Anthony D. Castelli, Attorney, Law Offices of Anthony D. Castelli, Cincinnati Jaine Fraser, Ph.D., Trial Psychology Institute, Dallas Christian Myer, Partner, Dolman Law Group, Clearwater, Fla. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. 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Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: • Click on the ^ symbol next to “Conference Materials” in the middle of the left- hand column on your screen. • Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's program. • Double click on the PDF and a separate page will open. • Print the slides by clicking on the printer icon. Connecting with Today’s Jury Pool Tony Castelli, ESQ. [email protected] Jaine Fraser, Ph. D. [email protected] Christian Myer, ESQ. [email protected] Attorney Christian Myer 7 Time Constraints Tough Cause Questions Identify Leaders 8 Recognizing Today’s Society Checking Social Media Before Checking Social Media During/After General Attitude 9 Jury Selection in Personal Injury Litigation: Connecting With Today's Jury Pool Effective Questioning and Determining Bias Jaine E. Fraser, Ph.D. [email protected] You can’t change a juror’s strongly held beliefs • You have a two part mission 11 Make it easy for jurors to give you “negative” answers • Don’t say anything good about your case • Don’t bring your clients to jury selection • Talk about thoughts, feelings, and opinions in any case, not this case 12 Stairstep your questions to get the most information • Lawsuits in general • Personal injury lawsuits • Medical malpractice lawsuits 13 Scaled questions give valuable insights 14 Scaled questions give valuable insights When I hear about a • Have questions personal injury lawsuit, I am suspicious. written out ahead of Strongly agree time People Agree are too quick to sue, Disagree claiming they have • Always use an even been Strongly injured. disagree number of responses – There should be laws - There should be laws • Only ask questions that making it more difficult to file personal injury lawsuits. expose bad jurors 15 Address your problems head on 16 Address your problems head on • Mom smoked during pregnancy 17 17 In a case where a mother smoked during pregnancy, I would find the mother primarily at fault if the child suffered birth injuries. Strongly agree Agree Disagree Strongly disagree 18 Address your problems head on • Mom smoked during pregnancy • Mom was overweight 19 If a woman is 100 pounds overweight and her child suffers brain damage during labor and delivery, I would attribute a significant amount of the blame to the mother. Strongly agree Agree Disagree Strongly disagree 20 Address your problems head on • Mom smoked during pregnancy • Mom was overweight • Imperfect prenatal care 21 If a pregnant woman misses two of her last four doctor appointments, I would find her primarily at fault if the child suffered birth injuries. Strongly agree Agree Disagree Strongly disagree 22 Don’t let these people on your jury • Medical professionals • General contractors (except nurse aids or home • Law enforcement health providers) – this includes people who work in • Business owners doctor’s office • Insurance workers • Engineers • Scientists, except physics • Accountants • Architects • Real estate agents • First line supervisors 23 …and be careful about these folks • People with high school educations who have worked at the same place for 20+ years • Defendants in lawsuits • Prior presiding jurors • Court personnel • Human resource workers 24 www.trialshrink.com 25 TAINTED JURY POOLS & WHAT TO DO ABOUT THEM Anthony D. Castelli [email protected] The subject of tainted jury pools generally come up most often in criminal cases for the reason that those are generally high-profile cases that have gotten a lot of publicity. When there is a criminal case where there has been particularly egregious facts which has garnered much publicity, whether local or nationwide, most of the jurors will have heard of the case and many will have formed some type of opinion as to guilt. 27 Take for example the case of Eddie Ray Ralph who is accused of killing Chris Kyle, the American Sniper. Kyle is widely acknowledged as the most lethal sniper in US Military history, having racked up 160 confirmed kills. As the story goes, Chris Kyle and a buddy had taken Eddie Ray Ralph, to a Texas shooting range. Kyle took Ralph to the shooting range to provide support and camaraderie and to help Ralph’s Post-Traumatic Stress Disorder. The movie of course paints Kyle as a tremendous hero. This, separate and apart from the extensive publicity given to the shooting, obviously would have many people believe that Chris Kyle was an American Hero and even more, an emotional vileness would be in their minds, towards someone who killed Kyle. 28 The best way to get away from a tainted jury pool is to ask for a change of venue. The place where the incident occurred is certainly likely to have the most publicity and for its local citizens to have the most “knowledge about what they think happened in the case.” However, a spectator of the movie is a nationwide phenomenon, although not specifically dealing with the case at hand, but with the victim in such a high level, heroic manner that the positive feelings for the hero may drown out the ability to listen to an insanity defense of the defendant. 29 Hidden bias also can taint a jury pool. In other words, we are all familiar with the jurors stating they can be fair and impartial on a superficial basis. Deep down we know that a juror with a police officer who loves his brother, is going to be more partial towards police testimony than someone who has had a negative experience with the police. Although not an example of a complete taint of a jury pool, it is an isolated example of a tainted juror. These isolated examples are more common than the tainted jury pools as a whole. In a widespread jury taint issue, because of publicity, a change of venue can be requested. Also ask the Court for extra pre-emptory challenges. Additionally, tailored questionnaires given to the jury pool in advance with specific questions from the attorneys, can also be a useful technique. 30 Recall the case of Kenneth Lay of the Enron Corporation. The trial setting was in Houston, Texas and Lay faced 7 counts of fraud, conspiring to fool investors into believing that Enron was healthy before the company crashed. 400 potential jurors completed questionnaires in the first step of jury selection. Jurors presented opinions in those questionnaires such that Lay was guilty criminally and morally, guilty personally and was in fact, a devil and a high-class crook. From those questionnaires, the 400 potential jurors were wittled down to 164. 31 Another tactic is to request to question jurors individually, based on their questionnaires because of the individual questions they answered. This is not often granted. In particularly restrictive jurisdictions, as the Federal jurisdiction, jury selection is difficult. This is why in a Federal case, significant time and effort must be made towards convincing the trial judge that the limited voire dire offered will cause an unfair trial for the defendant. 32 Civil Taint The biggest taint in a civil case that involves personal injury, is the area of tort reform. In my opinion, this comes down to the McDonalds case. We all recall the case where the lady had coffee spilled on her and the gigantic verdict ensued against McDonalds.