New Thoughts and Prospective for Picking the Best Jury in a Plaintiff’s Personal Injury Case
By: Lisa Blue, Robert Hirschhorn and Kellye Raymond
When preparing for voir dire in a personal injury case the first thing you must do is take a hard look at your case and determine if you need a liability jury or a damages jury. There are crucial differences between the two and often times these jurors do not look the same. So, how do you know if you need a liability or a damages jury? Weigh the issues. If you have more issues and problems with liability, then you need a liability jury. Conducting a research project, such as a focus group or mock trial, is an excellent indicator of how a potential jury will view your issues. Often times, attorneys tend to drink the Kool-Aid or become too bogged down in their cases to see things as clearly as possible. What you may think is a huge issue a focus group will tell you it is not a problem at all. When in doubt, focus on liability because without a strong liability case, damages will not matter.
Millennials are often the trickiest demographic to handle when conducting voir dire in a personal injury case. Many plaintiff’s attorneys who handle personal injury cases are wary of millennials, and for good reason. Most millennials often do not have the life experience necessary to relate to a personal injury plaintiff. Additionally, millennials generally have a hard time putting themselves in the shoes of someone who has been seriously injured if they themselves or someone close to them have never experienced a serious injury. A caveat to the general rule of millennials being bad for a personal injury case is if they are an “old soul.” If you have several young panel members it will be crucial to find out who they are. Do they have an older mentor? Are they especially close with their grandparents? One of the best ways to obtain this information is by having the panel members fill out a one-page questionnaire before voir dire. Questions such as “Who are the three people you most admire? Who are the three people you least admire? What are your favorite websites?” will help to give you an insight on your panel members. More and more judges are allowing proposed juror questionnaires so do not be afraid to ask.
The most frequently asked question a jury consultant hears is “What kind of juror do I want on my jury?” While there may be some demographic trends that tend to be indicative of a good or bad juror for a personal injury case, you must always conduct your voir dire based on determining your potential jurors’ belief systems. It will be highly unlikely that you actually get what you want when it comes to target demographics so it is critical that your voir dire is centered on determining a potential juror’s value and belief systems. When a juror gives a plaintiff a good verdict it is almost always because their value systems aligned. People like people like themselves and the old adage that good people get good verdicts is as true as ever. If you do not have a particularly likeable plaintiff it is even more necessary to draw out at least one or two facts about your client that a juror can relate to.
In order to discover someone’s belief system you first have to get your panel to open up to you. One effective way to encourage conversation from your panel is to disclose something personal about yourself. Self-disclosure will help to make you and your client more relatable. Getting your panel members to open up during voir dire is the easy part, the hard work is in actually listening to their responses and watching the way in which they respond. You can tell a lot about an individual by how they answer. Therefore, it is critical to watch the way in which people respond, not just the response itself. Listen for their tone, if they pause, and their body language. At this juncture, it is imperative that you have someone in the courtroom to assist you, to take notes, and to help you catch as much information from a potential juror as possible. Whether it be a paralegal or an intern, having an extra set of eyes and ears will be a huge benefit.
Ultimately, the most important thing you can do in voir dire is be transparent. If you run across a panel member that scares you, tell them why. There is no such thing as “tainting a panel.” Opinions are not the flu and just because a panel member says something does not mean that now everybody will believe or agree with that. So, ask the scary claims adjuster if your client should be concerned if she sits on this jury. Ask a prospective juror, “If you were my client would you want someone like you on this jury?” Your fears will either be validated or you will be pleasantly surprised and you can save a preemptory strike. If a panel member gives you an “I don’t know” response, you must assume that means no, they cannot be fair and impartial. An “I don’t know” response is just more polite than saying no. Jurors often have a hard time telling the truth because they feel inclined to tell you, the judge, and their fellow panel members what they think you all want to hear. To combat this, it is essential that you stress to the panel that you are not looking for a fair and impartial answer, but an honest one.