jury selection in personal injury litigation: connecting

Jury Selection in Personal Injury Litigation: Connecting With Today's Jury Pool Using Effective Juror Profiling and Voir Dire to Pick the Best Jury

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WEDNESDAY, FEBRUARY 5, 2014

Presenting a live 90-minute webinar with interactive Q&A

Jeb Butler, Attorney, Butler, Wooten & Fryhofer, Atlanta

Paul Simonson, Senior Partner, Simonson Hess Leibowitz & Goodman, New York

Darren M. Tobin, Attorney, Childers Schlueter & Smith, Atlanta

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VOIR DIRE

Jeb Butler, Georgia: [email protected] Paul Simonson, New York: [email protected] Darren Tobin, Georgia: [email protected]

mailto:[email protected]



Main Objectives

AS YOU JUDGE, SO SHALL YE BE JUDGED


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SOCIAL MEDIA: SEEK AND YE SHALL FIND

Main Objectives Jeb Butler, Georgia: [email protected] Paul Simonson, New York: [email protected] Darren Tobin, Georgia: [email protected]

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Main Objectives

EMPATHY


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Main Objectives

SOMETIMES THE LOUDEST TRUMPET BLOWS THE CLEAREST NOTE


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Tort Reform


Yes 53.1%

No 13.9%

Don't Know 5%

Are jury awards too high?

Maybe 28%

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Tort Reform Jeb Butler, Georgia: [email protected] Paul Simonson, New York: [email protected] Darren Tobin, Georgia: [email protected]

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Tort Reform


Yes89%

Maybe7%

No4%

Are people too ready to sue?

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Tort Reform

“Never forget, almost every case has been won or lost when the jury is sworn.”

-Clarence Darrow


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Tort Reform Jeb Butler, Georgia: [email protected] Paul Simonson, New York: [email protected] Darren Tobin, Georgia: [email protected]

product liability survey: “Whether it was the one paragraph survey summary of the case, the fourteen page presentation with visuals in the online groups or the one hour recorded presentation, the hard core jurors (those who answered all civil justice questions in a pro-defense way) voted for the defense.”

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Tort Reform

source of news television, radio programs McDonald’s coffee

frivolous lawsuits drive up costs of insurance, products, medicine caps

pain & suffering punitive damages burden of proof

would not file a lawsuit most American companies are honest and ethical


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TWO STRIKES

1. Struck for Cause potential juror stating that there is some aspect of the law that he or she cannot or will not follow, or

2. Peremptory Strike for virtually any reason at all

Batson Challenges Jeb Butler, Georgia: [email protected] Paul Simonson, New York: [email protected] Darren Tobin, Georgia: [email protected]

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HISTORY Batson v. Kentucky, 476 US 79 (1986) peremptory challenge in a State criminal case may not be

used to exclude jurors based solely on their race. violates the Equal Protection Clause of the 14th Amendment.

The case gave rise to the term Batson challenge. Supreme Court has extended this prohibition to

the peremptory strikes to jurors’ ethnicity and gender. See Hernandez v. New York, 500 U.S. 352, 355 (1991) (extending Batson to ethnicity‐conscious challenges); J.E.B. v. Alabama, 511 U.S. 127, 146 (1994) (extending Batson to gender‐conscious challenges).


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BATSON AS APPLIED IN CIVIL CASES

Edmonson v. Leesville Concrete Co. 500 US 614 (1991) private litigant in a civil trial may not use racially‐motivated peremptory strikes any more than a government prosecutor may during a criminal trial:

“Racial discrimination has no place in the courtroom, whether the proceeding is civil or criminal.”

For the limited purpose of jury selection, private litigants act as “government actors” and thus cannot violate the jurors’ constitutionally guarantees equal protection rights.


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HOW TO MAKE A BATSON CHALLENGE Same Three‐Part Test Applies in Criminal and Civil Trials Establish a prima facie case of discrimination.

Neutral explanation for challenging the jurors.

Reasons given need not rise to the level justifying exercise of a challenge for cause, but can’t amount to mere denial of a discriminatory intent explanation doesn’t have to be “persuasive, or even plausible,” only one with “facial validity.”

Court must decide if the complaining party has established purposeful discrimination. A trial court may not simply accept a given reason at face value but has to examine the lawyer’s justification for the challenges. Credibility can be measured by many factors.


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IN WHAT OTHER CONTEXTS HAS BATSON CHALLENGE BEEN USED

Judges

Jurors

Sexual Orientation? Maybe see SmithKline Beecham Corporation v. Abbott Laboratories.

3-judge panel of the 9th Circuit Court of Appeals ruled unanimously on January 21, 2014: distinctions based on sexual orientation are subject to the “heightened scrutiny” standard of review and that “equal protection prohibits peremptory strikes based on sexual orientation”.


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WHEN ARE BATSON CHALLENGES MOST LIKELY TO SUCCEED Not on a “gut feeling”

Alex v. Rayne Concrete Service, 52 So. 2d 138, 148 (La. 2007): personal injury case, defense counsel struck an African‐American female based on a

gut feeling that she did not like the company, but liked the plaintiff “such a reason as ’gut feeling’ is most ambiguous and inclusive of discriminatory intent.” “gut feelings may factor into the decision to utilize a peremptory challenge,” but this

reason alone does not satisfy Batson in the absence of any follow‐up questioning

Not on “body mechanics” Zakour v.UT Medical Group, Inc., 215 SW 3d 763, 765 (Tenn. 2007): medical malpractice case, the defendants used six

of eight peremptory strikes to remove females all “based on experience and body mechanics”

To avoid a Batson violation, counsel should ”specifically state the particular body language that forms the basis for a peremptory challenge”


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REMEDY FOR SUCCESSFULLY SHOWING A BATSON VIOLATION Footnote 24 identifies TWO POSSIBLE REMEDIES:

1) discharging the venire and selecting a new panel or

2) reseating the improperly stricken juror

Are these the only permissible remedies? / Is one more preferred over the other?

How about State Courts – what do they say:

Inconsistent some state courts have read the relevant footnote in Batson to set out the only available remedies others say the two remedies are among others and have imposed alternative remedies forfeiture of

peremptory challenges, giving the side prejudiced by the Batson violation additional peremptory challenges, granting a mistrial, and imposing sanctions on the attorney making the improper challenge

Georgia Supreme Court reseat a juror who was stricken is appropriate only where the juror was unaware that he or she was improperly challenged. See, e.g., Holmes v. State, 543 S.E.2d 688, 691 (Ga. 2001) (the jurors remain unaware of the party who struck them, reinstating improperly challenged jurors does not abridge the defendant's right to a fair and impartial jury.”)

North Carolina and South Carolina Supreme Courts starting anew is “the better practice”

Legislative Constraints KNOW YOUR STATE! Some state legislatures have withdrawn trial court discretion via statutes requiring dismissal of the entire venire whenever a court finds challenges based on race


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CONCLUSION Make sure you have a good record in case you choose to appeal

Raising a Batson claim on appeal is fact intensive

Listen to the reasons offered for striking minorities

Timely objections

Understand the Goal and the Distinguishing Difference

Goal FAIR system

We don’t believe that the jury panel must be comprised of folks with the same skin color as the defendant but we do believe that the system by which to pick those jurors is fair.

You’re effectively accusing him of racism. Don’t worry. Maybe he has a little in him…

Story of the Georgia Lawyer


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Main Objectives Round Two

YOU MUST GET RID OF THE ONES YOU HATE


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AND MOSES HANDED DOWN THE LAW FROM THE MOUNTAINTOP



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WILL THE BLIND LEAD THE BLIND



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PLENTY OF TIME



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Jury Selection Principles

Dress for Success First impressions are lasting impressions; and, You never get a second chance to

make a first impression

During voir dire, wear warm and friendly colors. Try avoid power clothing during as power clothing should be worn when you want the jury to focus their attention on you.

Don’t wear: expensive jewelry, diamonds, more than one ring on each hand, fancy rings, Rolex watches, gold bracelets, etc.

Share the love


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Smooth, Too Smooth


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Self-Disclosure

Social Penetration Theory

Relationship development closely linked to communication

Reveal something about yourself if you want them (a) to reveal themselves and

(b) connect with you



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How to Speak

Don’t use legalese talk like a normal person.

Weave in your trial theme. Concisely explain your theory of the case in the beginning of voir dire

Make them feel comfortable Tell them if any juror would feel more sharing an answer in private they can

Say I want “honest answers” versus I want you to be “fair and impartial jurors”

Your Client is a Real Person Always call your client by her name in the real world she isn’t “Plaintiff”

and she isn’t “Client”



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Seating Chart Only have a seating chart and the questions with you

Use it to address them by name versus by juror numbers

Where You Stand Don’t conduct voir dire from behind a podium or counsel table

Harvard Law Federal Defender who couldn’t win

Primacy & Recency Jurors will remember the first and last things they hear and see

Start and end your voir dire on strong points This concept also applies examinations,openings and closings.

Questionnaire Don’t ask the same question in voir dire that you ask on the questionnaire eg “are

you married?”

Follow up in voir dire on information you’re told from the questionnaire.



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Closing Questions

Consistent with primacy / recency, end voir dire on a strong point. streets safe, companies are responsible for their products, sending a message

to the community

Make it real “[Juror’s name], can you look [client’s name] in the eye and say, I will give

you a fair trial.” Look at their reaction does he look to the Judge or opposing counsel before answering, look at your client etc.



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Above All, If You Remember Nothing Else…

TWO EARS, ONE MOUTH Coincidence?

Listening is an active skill, not a passive skill. Focus on the jurors’ answers and don’t fret over getting to your next question. (See this happen in depositions all the time)



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Strikes for Cause

Believe in it! Bench brief for judge.

Law

Strikes for principal cause are supplemented by strikes for cause based on partiality. Mitchell v. State, 69 Ga. App. 771 (1943); O.C.G.A. § § 15-12-134, 15-13-135.

A biased or partial juror cannot be “rehabilitated” through talismanic questions. Kim v. Walls, 275 Ga. 177 (2002) (leading case).

the standard: “A challenge to favor is based on circumstances raising a suspicion of the existence of actual bias in the mind of the juror . . .” Mitchell, 69. Ga. App. at 668.

“[N]o party to any case has a right to have any particular person on their jury.” Walls v. Kim, 250 Ga. App. 259, 260 (2001) (aff’d).

If a party uses a peremptory strike to remove a juror who should have been removed for cause, reversible error exists. Jones v. Cloud, 119 Ga. App. 697, 708 (1969).

Establishing

sometimes it’s specific: State of Georgia v. Michael Eugene Johnson, Clayton County (drug-dealing jurors)

sometimes it’s general: Gibson v. Ford Motor Co., Clarke County


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Strikes for Cause

21 THE WITNESS: Well, my father-in-law 22 is a doctor and has lots of lawsuits against them, a 23 lot of which were frivolous, which I don't know what 24 the law exactly is on that. I will say they would 25 have to be very good evidence of neglect to me to 1 want to give much money to somebody. 2 BY MR. BUTLER: 3 Q. My question is whether or not those views 4 about -- your father-in-law? 5 A. Father-in-law. 6 Q. -- father-in-law being a doctor and being 7 sued and your view that a lot of those suits were 8 frivolous, that in addition to what you told us out 9 there about being in favor of caps and opposed to 10 juries imposing punitive damages, would that 11 influence you at all any bit whatsoever?

12 A. It's going to influence me, of course, but 13 I know I'm a fair person, I would want to hear the 14 facts and see the evidence, yes, but my opinions are 15 going to affect anything we -- 16 THE COURT: Could you not only listen 17 to the evidence but could you follow the law that 18 you would be duty-bound to apply to the evidence if 19 you were selected to serve on this jury, laying 20 aside your prior experiences and personal opinions? 21 And I think that's what they are trying to get to. 22 THE WITNESS: I want to say yes to 23 that. The only thing that scares me about that is I 24 don't know what the law is; and granted, if I feel a 25 law is wrong, I'm going to have a problem with my 26 own consc[ience] in deciding that. I don't know, 2 that's honestly what I would -- I'm assuming the law 3 would be relatively -- 4 MR. BUTLER: It would be difficult for 5 you? 6 THE WITNESS: Difficult for me. 7 MR. BUTLER: Thank you.

demonstrating cause:

product liability: Gibson v. Ford


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Strikes for Cause

17 MR. SNYDER: I think she said if it 18 wasn't reasonable, she was assuming it was 19 reasonable, in response to Mr. Reid's questions, 20 said she would be able to follow that if that was 21 the instruction. 22 THE COURT: But there was more to it 23 than that. I mean, she's also saying it would be 24 difficult at one point in time in her facial 25 expressions and her situation I think tells more 26 than any other person that's been in here. And I 2 think she's trying to say the right things for us 3 all, is what I view. And, but I think that her 4 statements about, you know, if the law is 5 reasonable, it would be difficult and all the other 6 factors that I have personally observed about her, 7 her mannerisms and her responses, I'm of the opinion 8 now after having had her brought in at Ford's 9 request to find that there's a suspicion of 10 partiality.

22 MR. REID: Just a couple of quick 23 questions, Ms. Haymore. You said that if the law 24 was reasonable, that you wouldn't have a problem in 25 applying it. If the Judge instructed you as to this 1 question of punitive damages that they could not be 2 awarded unless there was a clear and convincing 3 evidence of extreme conduct on the part of a 4 defendant, would you have any problem in applying 5 that and following the Court's instructions and 6 coming to a fair result in this case? 7 THE WITNESS: I think if I heard you 8 correctly, yes. 9 MR. REID: All right. Thank you, 10 ma'am. 11 MR. BUTLER: Anything else? 12 MR. FRYHOFER: Nothing further. 13 THE COURT: Thank you, ma'am. You may 14 go back outside and remain there until we have an 15 announcement. 16 (Ms. Haymore leaves the room). 17 MR. BUTLER: Judge, under Walls versus 18 Kim, she's a goner.

attempted rehabilitation: Court’s ruling:


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Strikes for Cause

explain blind lady-justice with scales it’s okay to admit a leaning

broccoli

it’s patriot to admit a leaning civil vs. criminal


—on the attack—

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Strikes for Cause

Tell me about it (take the different or weird and ask).

Who else feels that way to any degree?

Now that I have thought about it “me too”.

How strong on a scale of 1-10?

About how long have you felt that way (start with highest 10/years).

So you have these strong feelings, a 9 on a scale of 10 for 10 years on frivolous lawsuits.

Are we starting out a little bit behind?

There’s nothing a lawyer is going to say to you to change your mind, true?


—on the attack—

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Strikes for Cause

we don’t want sympathy here for justice see client as a person seeking justice, not someone

maimed for life could bring back verdict for defense even scales need firm answer—I’m not the only lawyer who will be

asking you questions


—on defense—

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jury selection in personal injury litigation: connecting

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