New York Personal Injury Trials,
Jury Selection:
Time Constraints and Weaknesses in Cases
New York Law Journal, Wednesday, August 29, 2007
Ben B. Rubinowitz and Evan Torgan
To properly prepare for and conduct jury
selection, a trial lawyer must know how to deal with two
important issues: time constraints and weaknesses in his case.
Although these issues might seem to be separate and distinct, in
reality, they go hand in hand. Since courts have decided to
limit the amount of time allotted to each attorney for jury
selection, careful thought must be given as to how to best make
use of the time allowed.
On the day you first met your client and
heard his story, you probably made an initial determination
regarding the strengths and weaknesses of the case. Your initial
'gut' reaction to the case is crucial to your preparation for
jury selection. It was at that moment in time that you were
closest to seeing the case the way the jury might see it. At
that point in time, you were less of an advocate than you are at
the moment you step into the courtroom. Clearly, after forming
that initial impression or 'gut' reaction, you have spent
countless hours focusing on the strengths of your case and
dealing with its weaknesses. You probably have already argued
about the merits of the case during settlement discussions.
The problem, as it relates to jury selection,
is that you are an advocate and your tunnel vision might prevent
you from dealing with those dicey issues that will be at the
forefront of the jurors minds.
Identify the Problem Areas
One of the best ways to deal with difficult
issues is to make a written list of the potential problem areas
which you perceive at the time you first get the case. Go back
to that list -- back to your initial 'gut' reaction and see if
it still applies.
Rather than asking lawyers in your office
what they think, speak with the types of people who might be on
the jury panel. Speak with everyone you can from lawyers outside
your firm to teachers, kids and people in the community in which
you are about to try the case. [FN1] Lay out the facts as
objectively as possible. Ask purely open-ended questions
designed to get them to talk. Leading questions, or questions
that suggest the answer or limit the universe of potential
answers, do little to help you in this regard.
Consider the following questions, asked in
leading form:
Q: You don't think that's such a bad problem,
do you? or
Q: Don't you agree I can overcome that
problem?
Obviously, the 'yes' or 'no' response you
receive to these questions does little to assist your jury
selection.
The better approach is to ask questions like
these:
Q: What do you think of the case?
Q: What do you see as the weakness in the
case?
Q: Why do you think I might lose this case?
The answers to these questions may provide
valuable insight and should be used by you to reaffirm your
initial 'gut' reaction and devise ways to address these problems
with the jury.
Once you have your list of weaknesses, you
must be mindful of the time constraints imposed by the court.
Here, you must prioritize your weaknesses and deal with those
that you can in the limited amount of time permitted by the
court. You must decide how you want the jurors to perceive the
weaknesses. If possible, try to turn a weakness into a strength.
If that is not possible, you still must address the issue both
to maintain your credibility and begin to desensitize the jury
to this particular problem.
The worst thing you can do, however, is to
ignore the problem and hope it goes away. It will not. This
do-nothing tactic will permit your adversary to destroy your
credibility by making a short, simple statement at a strategic
point in time:
What counsel failed to tell you is that his
client is and has been a drug addict for the last 20 years.
Needless to say, you might never recover from
the irreparable harm done by your failure to address the
difficult issue.
The Technique
The 'confessional approach' [FN2] to jury
selection allows you to meet the tough issues head-on. At times,
it even allows you to turn a perceived weakness into a strength.
To successfully master this technique, you must be willing to
bring out the 'bad' facts as soon as possible, thereby
confessing your weakness.
Imagine the scenario in which your client in
a medical negligence case was a drug addict for the last 20
years before his death. Your position, however, is that his
death was caused by certain failures on the part of the treating
physician in administering medications, not by the use of
illicit drugs.
Here, the appropriate trial technique, based
on the confessional approach, might be to make a statement
followed by a series of both leading and open-ended questions.
It is important that you address your weakness first, presenting
your side of the issue, before allowing your adversary to bring
it up in the fashion which he chooses:
Ladies and Gentlemen, I'll tell you right
now: Mr. Smith used and abused drugs for more than 15 years. In
fact, he used and abused drugs for close to 20 years. We want
you to know that fact right away because we know that you might
have a strong reaction to that issue. But we also want you to
know that there were no secrets about his drug use. He fully
informed his doctors. They knew this. Our position is that he
never should have been given certain medications by his doctor
in light of his known drug use. Our position is that the doctor
was careless and negligent in administering this medication and
that this departure from accepted practice resulted in his
death.
Now, address the tough issue head on and find
out the jurors' true feelings. Explore your fears and concerns
based on your own 'gut' reactions to the case. Use both leading
and open-ended questions to flesh out the issue.
Q: Are you willing to listen to a case like
this knowing it involves a person who used and abused drugs?
Q: How do you feel about that?
Q: Are you open to the possibility that a
person who used and abused drugs might not be responsible for
his own death?
Q: Why is that?
Even if you cannot put a positive spin on a
bad fact, you still must address the issue. Rather than calling
a bad fact a 'weakness,' suggesting you have a weak case, refer
to it as a concern of yours. This way you maintain your
credibility by letting jurors know that you are not holding back
and can be trusted as a forthright, honest advocate:
Ladies and Gentlemen, I'll tell you right now
our client is an alcoholic.
He was drunk at the time of the accident. Our
position is that he did not cause the accident and was injured
through no fault of his own. We want you to know that fact
before we do anything else in this trial.
Q: Are you the kind of person who is going to
say: I'm not interested in anything else you have to say -- I've
made up my mind -- or are you the kind of person who wants to
know more?
If the juror has already made up his mind,
you might be able to have the juror excused for cause, or at
worst, excuse him by use of a peremptory challenge. On the other
hand, if the juror wants to know more, follow up the last
question with one that can be used on summation. As the next
question try:
Q: Why do you want to know more? or
Q: Tell us exactly why you need more
information.
Often, a weakness might not jump out at you
like the illustrations above. At times, the weakness in the case
might present as a much more delicate and sensitive issue.
Consider, for example, a subtle yet potentially powerful issue
involving racial prejudice. While your case might be strong on
both liability and damage issues if viewed in a prejudice-free
vacuum, the world does not work that way. Your initial 'gut'
reaction involving racial concerns might be something you need
to address during selection.
Assume, for example, you represent an
African-American. You know the makeup of the jury pool in the
county in which the case will be tried is anything but
African-American. Your fear is that the jury will award less of
a damage award based solely on race.
Here, you do not want to address the issue
head-on for fear of receiving a dishonest answer:
Q: Are you prejudiced against
African-Americans?
Needless to say, it is a stretch to ask
individual jurors to admit to bigotry in front of a large group
of people. Simply put, it is not going to happen.
The better approach is to ask questions
designed to alert jurors to your concerns without seeking to
embarrass them in front of others:
Q: When evaluating a person's pain and
suffering, would it matter to you if the injured person was rich
or poor?
Q: Donald Trump or a homeless person?
Q: Would it matter to you if the injured
person was a doctor or a janitor who was injured and you had to
evaluate their pain and suffering?
Q: Would it matter to you if my client was
black or white?
Q: Why not?
Another, more straight-forward approach might
be:
Q: Do you feel that race should be considered
when placing a value on a person's injuries?
Q: How do you feel about that?
Often, a summary-type question can deal with
the issue effectively:
Q: Do you believe that a person should be
entitled to a fair shake, regardless of race, religion, creed or
color?
Q: Why?
While you may never know if a potential juror
has a hidden agenda or truly is a racist by forcing a juror to
answer the 'why' question in his own words, you will be afforded
the opportunity to evaluate the honesty of the answer based on
your own common sense and good judgment. The juror's demeanor,
ability to maintain eye contact and content of the response
might speak volumes on this issue.
Conclusion
Since courts have severely limited our
ability to conduct a lengthy jury selection, care must be taken
to address the most significant issues with the jurors. Often,
you are better off dealing with your fears and concerns while
saving your strengths for the trial in chief.
FN1. Lisa Blue & Robert B. Hirshhorn, 'Blue's Guide to Jury Selection §24 ' (2004 West).
FN2. Patrick L. McCloskey & Ronald L. Schoenberg, 'Criminal Law
Deskbook §14' (1984 Matthew Bender).
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
Richard Steigman, a
partner at Gair Gair Conason, assisted in the preparation of
this article.
8/29/2007 NYLJ 3, (col. 1)
