JURY SELECTION IN GENERAL AND FROM THE DEFENDANT'S PERSPECTIVE

OUTLINE

INTRODUCTION

I SENT TO SELECT

II GETTING A ROOM

III CONTROLLING LAW

A. CHALLENGES BASED ON RACIAL BIAS

B. NOTE TAKING

IV SELECTION RULES

V TECHNICALITIES OF WHITE’S RULES

VI OTHER ISSUES TO HAMMER OUT BEFORE SPEAKING TO JURORS

A. NUMBER OF CHALLENGES

B. WHAT YOUR ADVERSARY WILL SAY ABOUT LIABILITY AND DAMAGES

C. THE INSURANCE QUESTION

D. BURDEN OF PROOF

VI QUESTIONING THE JURORS

A. PEDIGREE

B. DEFENSE QUESTIONING

C. THE SHTICK AND TAKING OBJECTIONS OUTSIDE

D. TAKING JURORS OUT

E. BUSTING THE PANEL

F. COURT’S SUPERVISION OF JURY SELECTION

VII DEFENSE QUESTIONING EXAMPLE

A. INTRODUCTION

B. POSITION AS DEFENDANT

C. BURDEN OF PROOF

D. ACCIDENT ALONE DOES NOT EQUAL CULPABILITY

E. CONTRIBUTORY NEGLIGENCE

F. SYMPATHY

G. CREDIBILITY

H. FOLLOW THE LAW

I. DAMAGES

J. CLOSING

K. FURTHER

VIII REPORTING TO CLAIM AND THE MANAGING ATTORNEY

 

APPRISE THE MANAGING ATTORNEY

1. ANY TIME THE ATTORNEY BELIEVES ANYTHING OTHER THAN HARMLESS FAVORITISM IS BEING GIVEN TO HIS ADVERSARY BY THE COURT

2. ANY TIME ANIMOSITY RESULTS IN A JUDGE BEING ASSIGNED TO SUPERVISE JURY SELECTION

3 YOU ARE ACCUSED OF SYSTEMATICALLY EXCLUDING MINORITY JURORS

 

JURY SELECTION

INTRODUCTION

Trial by jury in a civil action today is by six people pursuant to CPLR 4104. The provisions for the basic qualifications of jurors is controlled in Article 16 of the Judiciary Law. Not too long ago, the system was overhauled, with many of the former Statutory exclusion that excused many of prospective jurors eliminated, JUD.L 511,512.

I SENT TO SELECT

Customarily the case is called in one of the TAP, Trial Assignment Parts, of a County and either marked for a conference with the judge, or the attorney’s are told directly to "put in a slip". The slip refers to a jury selection form that is filled out by the plaintiff and given to the Courthouse jury clerk or clerk assigned to receive them and which serves to keep their place in the line waiting to pick a jury. The form calls for the caption of the case and the appearances of the party and will ultimately be used by the Clerks to keep track of challenges and mark down which jurors are selected when selection is actually proceeding. Their can be a substantial wait before the attorney’s actually get to start jury selection. All of the Courthouses have a number of small and usually stifling rooms set aside specifically for jury selection, they sometimes also let the lawyers use empty courtrooms that are available, especially if there are more than 3 or 4 lawyers on a case. Usually when a slip is first put in these rooms are all occupied by other cases, and the attorney is on a line waiting to get in. Sometimes the lawyers will be told to come back in a few days, or even weeks. Other times they will be told to wait, and wait, and wait.

If the case is conferenced with a judge before the attorneys are told to put the slip in, the practices outlined in dealing with conferencing judges should be referred to. After the conference the judge may order the attorneys to put a slip in, or adjourn the matter for a date certain to put a slip in. If he is ticked off he may cut the lawyers to the head of the line and make them start picking directly, which is supposed to catch everyone off guard and panic them. It is also common to see Courthouse regulars or heavy hitting plaintiff’s attorneys somehow jump to the head of the line. These irregularities should be watched closely. One of the ways in which some notorious plaintiff’s counsel who were indicted and convicted of corruption worked the system was through Jury Clerks in their pockets who loaded up their prospective panels with plaintiff oriented jurors. If the rare event occurs where you believe that anything other than harmless favoritism is going on, the Managing Attorney must be notified.

II GETTING A ROOM

Once the case you are on gets its turn, the Jury Clerk will call the attorneys from their waiting room, newspapers, pinochle game and study of depositions. The lawyers are sent to a room or courtroom. A panel of about 20 jurors is provided and six cards are chosen from a wheel. These cards are placed in a slotted board (called, appropriately, "the board"). The corresponding jurors take the front six seats. The plaintiff’s counsel stands up and introduces himself and begins an introduction of the case, the procedure and the parties. This usually lasts about 15 minutes. Sometimes a Judge will impose an arbitrary time limit upon the participants of 20 minutes or so each. The extent to which this may then be enforced varies. If such a limit is imposed and you let your adversary run on, however, you may emperil yourself since the judge may wander in at the end of 40 minutes and cut you both off.

Next, the plaintiff will ask pedigree questions from the prospective jurors. Then he will begin to ask more pointed questions about whether anyone has sued or been sued, had an injury or accident like the one at issue, has a philosophical problem with the system or awarding money. Then the next party in captioned order gets his chance to speak. During this questioning jurors may be taken out of the room to be spoken with privately about sensitive matters.

Juror are actually selected by not being knocked off or struck off the panel by a system of challenges or excused by consent of the attorneys. Most of the challenging goes on after everyone has had a turn to speak and the attorneys go outside with the board an take their turns making challenges, first "for Cause", that is for what they claim is a legal reason, CPLR 4110 then "peremptory" that is using one of the limited number of challenges (usually three, CPLR 4109) that can be exercised for any reason other than one based on the race of the prospective juror. Currently the law calls for both SIDES to have three peremptory challenges. It used to be that each PARTY got three peremptory challenges. In some areas the rules vary, and frequently the plaintiff will be allowed one addtional challenge for each challenge allowed the combined defendants.

III CONTROLLING LAW

The attorney needs to be familiar with several substantive areas of law when undertaking a Voir Dire. First are those sections of the CPLR which describe challenges for cause and the cases which interpret these. CPLR 4110 controls this area. Generally those specified are where a prospective juror is a relative of a party or employee of a party (happens often with City or County cases) or has some interest in an Insurance Property Casualty Company. (Viz. the "Insurance Question" it has been held that related matters may also be investigated if done "without undue emphasis". Graham v Waite 257 NYS2d 629.)

But the most frequently brought challenges for cause are those based on facts tending to show that the juror cannot judge the case indifferently. Butler v Glenns Falls, 121 NY 112 (1890). These are easiest where the juror themselves opine that they believe they cannot be impartial. "Actual bias occurs when a prospective juror acknowledges some specific bias or an inability to set aside a specifically held attitude which would prevent him from basing his verdict on the evidence, or has a relationship with one of the trial participants." People v Ruiz 482 NYS2d 665. The attorney needs to be familiar with those cases which entitle him to unequivocal assurance from a prospective juror that they will be able to be fair and impartial. "Promise of prospective juror, challenged for cause, to try to do everything within her power to be fair and impartial was not equivalent to saying that she would render an impartial verdict, and, thus, did not justify refusal to excuse her for cause..." People v Taylor 502 NYS2d 1.

Commonly other challenges for cause are that the juror has a pending law suite of their own either as plaintiff or defendant, or has had themselves, or a close friend or relative, the same injury or lawsuit as the one at issue or has in some other fashion had intimate personal experience with a situation like the one at hand. Jurors also tend to fail, (sometimes purposely to get off the case), routine questions about whether they will be able to follow the judges charge on the law and whether they have a bias against the Tort system one way or the other.

Occasionally jurors will have a religious conviction against "judging" another person. Sometimes a juror will not have a command of the language necessary to understand what is going on. Concealment of facts suggests a bias Holland v Blake 38 AD2d 344 and a party learning that a juror has withheld to that parties prejudice a pertinent datum on the Voir dire should apprise the court promptly or possibly lose the objection. Gamell v Mt. Sinai Hospital 339 NYS2d 31.

A. CHALLENGES BASED ON RACIAL BIAS

The attorney also needs to be familiar with the cases and holdings associated with Batson and its progeny which forbid the systematic use of peremptory challenges to exclude minority. Most of the decisions in this area are from the Criminal area, the current reported civil cases are Ancrum v. Eisenberg 615 NYS2d 14. O’Neil v City of New York 612 NYS2d 303, and Siriano v Beth Israel Hospital 614 NYS2d 700. Language from Ancrum, a First Department Appellate Division case is instructive:

[1] Plaintiff has stated a prima facie case of discrimination. Plaintiffs

are black, defense counsel had only three peremptory challenges and used all

three to exclude the only potential black jurors (see, Batson v. Kentucky,

476 U.S. 79, 96-97, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69). Therefore, the

issue on appeal is whether the court abused its discretion in determining that

defense counsel offered non-pretextual, race-neutral explanations for these

challenges. We note that the only reason stated by defense counsel directly

relevant to the circumstances of this case is the podiatric treatment of one

prospective juror and, even with respect to this individual, there is no

indication that the experience with treatment was negative.

[2] Defendant relies on the principle that great deference

should be accorded a court's determination that a race-neutral explanation for

a peremptory challenge is not mere pretext (People v. Hernandez, 75 N.Y.2d

350, 356, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct.

1859, 114 L.Ed.2d 395). However, that decision rests on the advantage of the

ruling court in being able to observe the demeanor of the attorney who

exercises the challenge (Hernandez v. New York, supra ). In the matter on

appeal, the Justice who heard the application to disband the jury was not

present during the Voir dire. Unlike a criminal trial, no minutes are

generally taken of the Voir dire in a civil matter. Therefore, this Court is

placed in the untenable position of attempting to evaluate the proffered

explanations in a vacuum.

Practically, if accused of systematically excluding minority jurors no response, rebuff or rejoinder should be made until requested by a judge. Attempting to explain your reasons to an adversary in a hallway is a waste of time at best, if not counter-productive when he twists your words or you lock yourself in. Remember that your adversary must first make a prima facie showing to the judge before you even have to explain yourself. If a lawyer starts in on you asking, "Why'd you boot that black lady?" or something to the effect, your response is. "Counselor, as you are aware I only need to explain my reasoning to a judge after you have convinced him one is required."

B. NOTE TAKING

A good habit to get into is to make a written note about the race neutral reason you actually used to challenge a juror. It is also a good habit to record verbatim telling statements made by prospective jurors when they are being jousted over. You can count on your adversary misquoting them or twisting their words when you go in front of the judge for a ruling. When you whip out your notes and say, no judge he said " I can be fair and I can set aside my experience and follow the law" it often appears like you've got a tape recorder going there.

IV SELECTION RULES

The first thing the attorney needs to know is what method of selection is being used - strike and replace or the round system. Strike and replace is often referred to as White’s Rules or Modified White’s Rules.

White was an upstate judge sitting in Manhattan who particularized and popularized these rules. They are very similar to those used in criminal cases. As these are practiced now, after a round of questioning, the attorneys go outside the room, the plaintiff goes first and declares any challenges for cause followed by his adversaries in caption order. If the attorneys agree that the challenge for cause is obvious or otherwise consent to it the juror is excused. If they do not agree, the matter will be taken up before a judge. Then the plaintiff declares any peremptory challenges he has, up to his maximum number of challenges, followed by his adversaries in caption order. At this point, any prospective jurors remaining are on the case and will either remain in the room or be immediately sworn in and removed by the clerk depending on the custom of the venue. The next round of questioning and challenging of jurors is usually lead by the next named party in caption order. Make sure about this part of the rule before you begin! It is a decided tactical advantage to challenge last. This process proceeds until the jury is selected.

In the round system, the plaintiff exercises challenges, then his adversaries. But the challenges continue around again if both sides have challenges left and if both sides have excersised challenges.. This continues until one side has announced they have no further challenges. Thus, for example, a round could go:

1. Plaintiff: 1 challenge 5. Plaintiff 1 challenge 9. Plaintiff 0 challenge

2. Defendant: 0 challenge 6. Deft. no choice 10. Defendant no choice

3. Co-Deft: 1 challenge 7. Co-Deft. no challenge 11. Co-Deft. no choice

4. Third Pty. D.1 challenge 8. 3PD 1 challenge 12. 3PD 1 challenge

Finished.

Even now, however, the jurors who were passed over are not necessarily on the jury. The next time a round of challenges goes forward, they may still be challenged. This so-called round system, once the norm, is becoming increasingly rare and because it is most time consuming should continue to decline.

V TECHNICALITIES OF WHITE’S RULES

If you have ever seen a written copy of White’s Rules, there are a few surprises which are widely ignored and unknown, these are that challenges for cause must be exercised as soon as they are evident, not when the break for challenges occurs or else are waived. Secondly, White’s Rules require that the challenges be exercised in front of the jury panel, not outside as is customarily done. It is a good idea to make sure everyone is on the same page before you start.

In addition, there are differences by venue, courthouse and among attorneys as to how goes the flip flopping between who leads at what point. Some plaintiff attorneys will suddenly sit back in the jury room at the start of the second round, slide the board over to you and fold their arms. The most common practice is for the plaintiff attorney to continue to lead in the jury room, but for the challenges to alternate by round starting with the plaintiff and then by party in caption order. Again, making sure everyone is on the same page before questioning begins is a good idea.

VI OTHER ISSUES TO HAMMER OUT BEFORE SPEAKING TO JURORS

A. NUMBER OF CHALLENGES

The following passage predated the current amendments which allow for an equal number of challenges PER SIDE!

Usually a plaintiff will be granted one extra challenge per extra defendant. Not all judges automatically follow this rule, however. It has been observed that "Permitting multiple (extra) perempts to a side with smaller aggregates should only be done where multi-party sides allowed separate sets of perempts (the other side) share an interest in the "type of juror" to be chosen." (Seigel on New York Practice, p 513 quoting Final Report of Advisory Committee on Practice and Procedure.) Some Judges will limit the maximum number of additional challenges a plaintiff can have to 2, some will require that the plaintiff first exhaust all his challenges and come back for more at that point. Accordingly, an attorney should not ordinarily automatically agree to the one extra challenge per defendant formula. In some instances a plaintiff may try to limit multiple defendants to one set of 3 challenges for the "side" in aggregate. But this is inappropriate where the defendant’s interests are antagonistic. Heiston v Taylor 119 NYS2d 452.

B. WHAT YOUR ADVERSARIES WILL SAY ABOUT LIABILITY AND DAMAGES

The attorney should ask his adversary what he intends, precisely, to say to the jury about the happening of the accident and his client’s injuries. An adversary should not be permitted to go into detail about his claims concerning how the accident happened, what his damages are and to color them to his liking and in effect have an opening statement. By hearing what he intends to say before hand the attorney can go to the judge if necessary before any damage is done. A plaintiff's counsel may decline to advise of what he intends to say. Your position is that "Counselor, I believe you are entitled to advise this jury that this action involves an automobile collision and claims of injury to the neck and back If you use language other than that I am going to object and ask to see the judge."

Secondly, the attorney will know immediately if his adversary begins to stray from the agreed upon language during Voir-dire. Generally, the plaintiff’s attorney should be limited to stating simply that the case involves an automobile collision, a dog bite, a fall, etc. On the issue of damages, it is generally forbidden to attribute any specific injuries to the plaintiff, but only to ask the prospective jurors in general terms if they have ever sustained an injury to the relevant portion of their body that the plaintiff supposedly hurt, e.g. knee, back, neck, head, etc.

Some plaintiffs’ counsel will try to circumvent this rule by reading directly from the Bill of Particulars, this should be refused.

C. THE INSURANCE QUESTION

As previously discussed, as a challenge for cause, the CPLR provides a challenge for persons with ties to property casualty insurers. Some plaintiff’s counsel will attempt to inject the issue of insurance coverage into a case by repeating the questions to each prospective juror, to wit: whether they are an employee, officer or shareholder of a property casualty insurance company. (Incidental note that employees of life insurers or insurance agencies that are not associated with a single company as agents are not disqualified.) The practice which should be insisted upon is to have the question asked once en banc to the entire panel.

D. BURDEN OF PROOF

Finally, a lot of attorneys have a tendency to like to discuss the issue of their burden of proof, especially to explain it to as so much less than a criminal burden, or to waive their arms like scales to show a 50-50 balance. It is a good idea to let your adversary know that this discussion of the law is not going to be tolerated.

VI QUESTIONING THE JURORS

A thorough questioning of jurors requires that a number of pedigree questions be asked. These are usually taken care of by the plaintiff and include:

A. PEDIGREE

 

 

(Any raised hands or yes answers to this should be taken outside for discussion.)

 

B. DEFENSE QUESTIONING

 

Usually by the time the jurors have answered the pedigree questions you have an excellent idea of who you want to keep or challenge. Nonetheless, you will want to speak with them after the plaintiff finishes. The best advice that can be given is to look them in the eye, try and make a few points, try to throw out the psychos, keep the people that like you and go and try your case. A thorough example of a defendant’s Voir dire is provided shortly.

 

C. THE SHTICK AND TAKING OBJECTIONS OUTSIDE

 

During the questioning of the jurors, adversaries often take the opportunity to try and make points about their case and begin a process of indoctrinating the jurors to their point of view. Technically, any questions which are not antiseptically directed to the qualifications of the jurors to serve fair and impartially are impermissible. Practically, attorneys tend to give each other a lee way in presenting a shtick or routine that will make a few points, ferret out hostile jurors and make themselves seem like nice guys.

Almost invariably during this process, however, an adversary will press beyond what is technically proper as well as customarily permitted. Several common examples have already been discussed; the attorney will try to inject insurance coverage into the case, or will try to get a prejudicial picture of his client’s injury before the jury (a compressed vertebrae will become ‘this case is about a broken back!’), or will give hypotheticals about the law, or try and get a juror to elaborate on some prejudicial personal experience similar to an aspect of the case or by sticking big numbers onto things. ( "A superbowl commercial costs one million dollars!")

It is not possible to enumerate every instance that will be encountered, but be mindful that anything which sounds improper, probably is. In such an instance, the proper course of conduct is for the attorney to simply state ‘objection’, stand up and walk out of the room. Your adversary should follow for the two of you to discuss your objections. Sometimes the attorneys can work out an acceptable way to put the point one or the other is trying to make. Other times it will be necessary to see the judge over the objection for a ruling. If you are going to see the judge, tell the jury clerk and prospective jurors. When the judge makes his ruling write it down. When the judge makes his ruling write it down. When the judge makes his ruling write it down.

Occasionally, an attorney will try to engage you in colloquy after you make your objections in front of the jury. That is improper and the attorney should be told that. A good way to prevent this from happening is to tell the attorney before Voir dire begins that when you object you will simply get up and walk out. Rarely an attorney may not follow you. Go directly to the jury clerk, who will pull the attorney out, then the judge.

This is another area where if you have written down exactly what in controversy has been said, you will be in a better position.

D. TAKING JURORS OUT

If it appears that a juror will be discussing some details of their background which are contextualy sensitive to the case and which could prejudice the other jurors, then they should be asked to step out of the selection room to be questioned by the lawyers. Some attorneys will purposely try to press forward with questioning of such a prospective juror before the others to gain a tactical advantage. A good way to prevent this is to indicate to your adversary, in front of the jury if necessary, that if any witness answers ‘yes’ to the particular questions he is asking you require that the juror be spoken with outside.

Once outside, it frequently occurs that one side tries to talk a juror off the case while another tries to talk them on. A common ploy of plaintiffs is to ask the juror if ‘perhaps they would be more comfortable sitting on another kind of case’. It should be our position that this question is improper and irrelevant. The correct question is whether or not, given their personal circumstances that they have described, they will still be able to follow the law as the judge gives it to them and act as a fair and impartial juror. Again, this is the point where it is a good idea to write down verbatim what they are saying. If you and your adversary disagree on whether a juror should be challenged for cause, and you have their affirmative promise to be fair and impartial written down, you are better situated to prevail.

E. BUSTING THE PANEL

On occasion, you may become convinced that some occurrence has so prejudiced the prospective jurors that they are poisoned as a group and that you cannot get a fair jury out of the lot of them. Perhaps your adversary has done something outrageous, like implying that they can return any verdict they want because your client is a liar, or was already adjudicated responsible in an administrative proceeding, or has loads of insurance. Or perhaps one of the jurors has rambled on about their hatred of you, the insurance industry and how he was served in his own lawsuit. In such a situation, the appropriate remedy is to ask the judge to discharge the entire jury and replace it with a new panel - called ‘busting a panel’.

Several cautions are in order. First of all, your adversary may be intentionally trying to bust the panel because he does not like their makeup and you could be playing into his hands with your application. Also, judges don’t like to bust panels and tend to blame both lawyers for not getting along. Further, you may inadvertently bust the panel yourself by repeated trips to the judge with objections; some judges on the third or fourth time you show up will bust the panel even though you don’t ask them to. Be aware that busting a panel solely for the sake of busting it, while it is a desperation move in the bag of tricks of most experienced litigators, is a dangerous and ill advised game which can subject the attorney to sanctions and other penalties

F. COURT’S SUPERVISION OF JURY SELECTION

Leaving aside the possibility of future routine supervision of jury selection, such a situation isprovided for under the CPLR. CPLR 4107 actually gives an attorney the right to demand that a Judge supervise jury selection, providing "On application of any party, a judge shall be present at the examination of the jurors". In practice this is a last ditch resort imposed by a TAP judge who had grown exhausted by attorney’s constantly busting panels and failing to get along, or requested by a lawyer who considers his adversaries conduct outrageous. The consequences of this are volatile however, these exercises are often handled in a punitive fashion by the supervising judge and can spill over in a blunderbuss fashion against even the good guy.

VII DEFENSE QUESTIONING EXAMPLE

Every experienced litigator has his own routine that he has developed or polished over the years. Most, however, at least touch on or refer back to several basic themes

A. INTRODUCTION

My name is ______________. It is my privilege to represent ____________. It is our position, has been from day one and remains to this day that he was not negligent and that he did not cause any injury to the plaintiff. Juror #1 whenever I have the opportunity to speak with jurors on a prospective case, I get to speak with them about things which are unique to each case, and things which remain the same from case to case, let me start with something that never changes.

B. POSITION AS DEFENDANT

To start a lawsuit, all that is required is to type on a piece of paper: I got hurt, you are to blame, you owe me money, you file it with the court and have it sent out and the lawsuit starts. Juror #1 do you believe that just because a lawsuit has been started against my client that that is proof of anything, that necessarily he must have responsibility in this case. In other words, that where there is smoke there is fire? Can you agree that a lawsuit can be brought against someone who was not negligent or was not the cause of the accident? How do you feel about that?

(Asking in connection with these questions ‘how do you feel about that’ promotes a more open ended response that gives you a better chance to gauge a prospective juror.)

C. BURDEN OF PROOF

(Defendant’s attorneys often stumble when trying to Get across to the jurors that they don’t have a burden off proof , that the plaintiff has to prove his case against them. Plaintiffs counsel will object and note that the affirmative defenses have a burden of proof that we carry, judges sometimes wig out if they even hear you used the term burden of proof, plaintiff’s counsel may start yammering about the burden of production and the shifting burden of dissuasion. The better bet when emphasizing to the jury the fact that the plaintiff has to come to us is to state the fact that "as a defendant I do not have to disprove a thing. Mr. Plaintiff has to prove his case to you to a degree and in a manner which the judge will charge you on. I could, if I wanted, sit here during the trial and not say a thing, and if Mr. Plaintiff did not prove his case to in the manner in which the judge will instruct you then you would be obligated to turn him out of court without a dime. Mr. Juror, can I have your assurance that in such a situation you will return a verdict in favor of my client. Ms Juror 2, how do you feel about that."

D. ACCIDENT ALONE DOES NOT EQUAL CULPABILITY

"Mr. Juror, some people when you talk to them about an automobile accident will tell you that all they need to know is that a person was involved in a collision , and that therefore they must have been somewhat at fault. In other words that just by the happening of the accident all drivers are to blame. Do you necessarily believe that or can you imagine a situation where someone is involved in an accident and it is not there fault?" This should also be explored where a pedestrian is struck, and the general theme of accident alone does not = liability can be expand to any cause of action.

E. CONTRIBUTORY NEGLIGENCE

"Mr. Juror, one of the things I may argue during the course of this trial is that the plaintiff, by his own conduct, was negligent and contributed to the happening of this accident; that he has, in whole or in part, himself to blame for what may have happened. Mr. Juror, will you be willing to listen to my argument on this? Can you envision a situation where someone who is injured has themselves to blame? Some people might say they cant or wont listen to an argument like that, that that is just blaming the victim and is not right, but I intend to base my arguments on the facts and the law and need to know at this point not whether you will accept those arguments, but merely whether you will at least listen to them and weigh them carefully and if you agree with them to then be prepared then to accept them."

F. SYMPATHY

Mr. Juror, there are big prejudices that are obvious, based on sex or race or whatever, but there are other prejudices that are not so obvious but which can improperly affect a cases outcome no less. Sympathy is one of those. It is agreed on by all involved that sympathy cannot play a role in your decision. But simply saying it sometimes is not enough. The plaintiff has claimed that his client suffered serious physical injuries, and I would be foolish if I did not think that an element of sympathy could not arise if he proves that Even if my adversary speaks about it every time he stands up I would still ask about this issue. Sympathy itself is certainly not a bad thing, some of the greatest people who have ever live have been revered for their tremendous compassion and sympathy, but in this context in your job as jurors it has no place. You must base the evidence on the law and the facts and that alone.

If there were two children in a class and one was fair and one was not, and the handsome child got more attention and better grades because of it, that would be wrong, similarly if there were two cases which should have the same result, but one did better because of sympathy, it would be wrong. Mr. Juror, how do you feel about that? I’m not asking you to harden your heart, but I must ask you to set those feelings aside. Ms. Juror, will you be able to do that? Sympathy can come into a case in many ways, it can come openly and obviously, stamping in broad daylight through the courtroom, or it can come quietly and without notice, until it is not in the deliberating room that you realize it has been sitting beside you all along. Ms. Juror, can you guard against it entering into your deliberations?

G. CREDIBILITY

Mr. Juror, one of the things you will have to do if you sit in judgment on this case is to decide the facts of the case. That means listening to witnesses. So let me ask you this, do you think it is possible, not necessary but possible, that a witness can take the stand, put their left hand on the bible, raise their right hand, swear to tell the truth the whole truth and nothing but the truth, and then not tell the truth, or the whole truth or color the truth?

Now some people have said to me that they don’t think that that is possible, that they don’t think someone could take an oath and then lie. How do you feel about that? Now I’m not necessarily even talking about a big lie, even a little coloring of the truth the kind we’re all prone to can occur, Ms. Juror, have you ever had a proud new father, proud as a peacock show you a picture of his new child, (pause) and its just not the prettiest baby you ever saw, and what do you tell him. (Wait for Laughs) of course, we all do. The point is that in a context like the one we find ourselves in even a little coloring of the truth can have significant circumstances.

H. FOLLOW THE LAW

"Mr. Juror, the judge will charge you on the law which is applicable in this case. It is not my job to discuss it with you in detail, and it would be improper for me to do so. However I do need to ask you if you will be able to follow the law the judge gives you even if you disagree with it. Some people have told me, No sir, I will substitute my own sense of what the law should be if I disagree with it.

That is their right to say so but they cannot sit in judgment on this trial if they truly believe that. The whole purpose of living under a government of law is that we know what the law is, that it is predictable which laws will be applied and that we can then conduct ourselves accordingly. If what law was to be applied was decided secretly, by individual whim we would then have the furthest thing from justice. Accordingly then let me ask you again, will you promise to follow the charge of the law as the judge gives it to you?"

I. DAMAGES

(The damages Voir dire usually emphasizes the jury’s obligation to return a verdict free from sympathy and on the facts and evidence. By repeatedly stressing the importance of the "facts and evidence" the attorney hopes to be able to bring the jury back to a position where they will develop a value based closely on the special damages, which will be argued as the only objective and quantifiable "facts and evidence" of the case, and which will tend to be small in comparison to the amounts for pain and suffering the plaintiff wants. By repeatedly calling for a "reasonable verdict" the attorney hopes to emphasize the impropriety of a runaway judgment).

Mr. Juror, it may come to pass during this trial that you deliberate on the issue of damages. What I will ask you to do at that stage is no different than anything I have asked you to do up till now. I will ask you to base your decision strictly on the facts and on the evidence and on the law as the judge gives it to you. I will ask you to return a reasonable verdict, one which fairly and adequately compensates the plaintiff but which does not provide him with an unwarranted windfall.

I will ask you not to return a verdict that is based on anything else, one that is based on sympathy or on something other than the evidence, or which is an unjustifiable windfall. Mr. Juror will you be able to base your decision on this issue on those factors? Simply because the plaintiff has prevailed on liability are you then going lay down your responsibility to carefully evaluate the facts and the arguments and go along with any amount the plaintiff will suggest to you? I will ask you if you find the injury and damages to be little to compensate them as so and not as if they are moderate, and if you find them to be moderate to compensate them in that fashion, and not as if they are serious, and so on so that your award truly reflects the proof that has been put before you.

My client will be depending on you in this stage as he did in every other stage of the case. Can I have your assurance that your decision will be a reasonable one? Is there any number below which you would not return a verdict. (Be careful with the line of arguing that posits a hypothetical small result, it opens the door for the plaintiffs "any number too large" questions.)

Some attorneys like to remind jurors that "this is not lotto", which routinely causes other lawyers to flip out and some judges to have apoplexy. Know what goes on in your courthouse before using this line. Some attorneys will intentionally draw jurors attention to notorious and outrageous damages decisions that are icons of popular culture, with, of course , the McDonalds' lap scalding case being the best know. "Millions of dollars for hot coffee!" This to get the jurors talking about how ridiculous the system can be. Don't even think about trying this unless you really know what you are doing!!

J. CLOSING

(Each attorney should develop his own closing question, generally the point is to put a single question which cannot be equivocated on directly to the juror and watch them closely for their reaction. The more definite they are in your favor, the more likely they are to be favorable to you. Equivocation is a bad sign, no matter if it is colored reasonably. If you were limited to asking each juror one question, this would be the one you would want to chose, so learn to make it stick.)

"Mr. Juror, you’ve heard every thing I’ve had to say, now it is time for me to sit down. I have one more question on behalf of my client, and it is a simple one. If Mr. Plaintiff does not prove his case to you will you turn him out of court without a dime?"

Juror No. 1. Yes. (Good)

Juror No. 2. Without a doubt (Best)

Juror No. 3. I’ll have to see what the evidence shows.

You: You’re absolutely right, and I would never ask any juror to prejudge a case, that is the worst thing I could do. But I’m sure you understand why I have to ask these questions. (Bad).

K. FURTHER

For some reason plaintiffs will expect to follow up with more questions, and then you may get a chance to narrow with a few questions of your own. At this point the attorneys will go out into the corridor and exercise their challenges. Challenges for cause first, peremptory challenges next. The attorneys then go back in and announce who has been excused, and who has been selected. The excused go out, either to the clerk or back to the jury room. The selected jurors remain or are taken out by the jury clerk to be sworn, depending on the local custom, the jury clerk keeps track of them now and will be responsible for hooking them back up with you. Whatever seats are open of the first six are filled and a second round of questioning begins. This continues until all the seats are filled. Next two or sometimes three alternate candidates are seated and questioned. Usually there is now one challenge per seat available to each attorney. In some places it may be two challenges for the whole alternate process. Make sure you know which. Once the alternates have been selected the attorneys advise the jury clerk who may swear them in, or send them to the TAP judge to see about getting assigned to a trial judge or otherwise direct them how to proceed after calling the TAP judge.

VIII REPORTING TO CLAIM AND THE MANAGING ATTORNEY

Defense attorneys should call their Claims partners twice a day at this point, at lunch and at the end of the day, and the attorney must also communicate his status to his secretary at these points and call the Managing Attorney if a message is left to do so or if some unusual circumstance which endangers the case develops. Your Claims partner will want to know the pedigree information about the jury and your assessment of how they will be for the case.