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The holidays are a wonderful time of generosity, when we open our hearts and wallets to those we love, and sometimes, complete strangers. But in the legal industry, some litigants shy away from jury trials during the holidays, if for no other reason than to avoid a box filled with jurors who feel a tad indulgent.
Civil defendants roll the dice each and every time they go to trial and risk of receiving a multi-million-dollar judgment. (Just ask J&J.) When it comes to money damages, defendants typically fare better when bleeding hearts are not seated on the jury panel – and this is true at any time of year.
As a civil defendant, it’s crucial to probe potential jurors’ attitudes on lawsuit validity and damages during voir dire. This is especially true in cases where David is hoping to slay Goliath, or in cases seeking dollars for medical issues, earning capacity, or loss of consortium. Surprisingly, some clients are still reluctant to have that conversation with prospective jurors. The main pushback I hear is this: “We can’t talk about damages or jurors will think we’re admitting liability!”
Failing to have some conversation with potential jurors about their views on lawsuits and damages could bite you on the backside. After all, should jurors deliberate and determine that money damages are appropriate, dollars will obviously be discussed. Voir dire is your one and only opportunity to up the odds of seating jurors who exhibit a healthy dose of skepticism and frugality, rather than blind faith and generosity. As the defendant, don’t you want a little Scrooginess on your panel?
Our mock jury and post-trial interview data shows that a few attitudes about damages and lawsuit validity are fairly universal and merit some discussion during jury selection. The conversation doesn’t need to be deep, expansive, or even long. But it really should be woven into your outline. You can decide once you’re on your feet whether you need it or not. Effective voir dire boils down to implementing a planned strategy, having a purpose for each question, engaging the panel, and making the best use of your (sometimes very) limited time.
Since it’s the holiday season and I’ve caught the generosity bug, I thought I’d share a few of my favorite voir dire strategies for finding Scrooge-y jurors in high-stakes commercial defense litigation.
Our jury research and post-trial interview data indicate the majority of people feel that because a lawsuit makes it all the way to a courthouse and in front of a jury, it must be pretty darned valid. We all know that’s not necessarily true, but the general public seems to have that sentiment. And it’s pretty entrenched.
Plaintiff attorneys typically spend a bit of time identifying jurors with lawsuit experience, but very few ever address the issue of validity. As a commercial defendant, it’s important to locate venire members who already assume – before any evidence has been presented – that plaintiffs’ claims are valid and that your client has done something wrong. Here are a few tried and tested ways to identifying the sympathizers:
- If time permits, educate the panel that anyone can file a lawsuit by walking down to the courthouse and paying a filing fee. There’s no litmus test for determining whether the claims are truthful or supported by facts. In fact, if you so desired, you could walk downstairs, pay $30 or so, and file a lawsuit against McDonald’s claiming that its iced mocha coffee was just too cold and gave you such horrendous cold headaches that you lost your job for too many absences. The goal here is to learn if this filing process surprises anyone; if it does, he most likely assumed it was a more difficult process (and thereby gave more credibility to the party suing). It also allows you to plant a subtle seed that claims in a lawsuit are not necessarily all they’re cracked up to be.
- Ask jurors how they feel about lawsuit validity, but do so in a conversational tone. For example, “X, I’ve talked with a lot of jurors in my day, and I meet folks who tell me that my client must have done something wrong or we simply wouldn’t be here in court. Do you tend to agree with that?” Ideally, you’ve already pegged that juror as a possible strike and fully expect her to agree, so use her affirmative answer to invite others to agree with the juror – not you. “Y, do you agree with X?” (Yes) “How many of you agree with X and Y and have a gut feeling that because we’re here, my client probably did something wrong?” Boom. Potential strikes.
Burden of Proof
Most attorneys talk about burden of proof and the magical scale of “greater weight of the credible evidence.” Here’s the deal: (1) very few jurors are going to admit in open court that they cannot (or will not) follow the judge’s instructions, (2) phrases like “greater weight of the credible evidence” are legal mumbo-jumbo to most in the venire.
By the time a defense litigator stands up for oral voir dire, the judge and/or plaintiff counsel has already educated the panel on the burden of proof. There is absolutely no need to reeducate the panel, and by no means should you try to convince jurors that they are wrong. They feel what they feel. Accept it graciously and move on.
But what you can do is ask who disagrees with the burden. It’s not a matter of determining whether a juror will follow the burden – almost everyone will say they will. Discover how they feel about the legal requirement. For example:
- “Z, do you feel it’s fair to make the plaintiff prove its claims?” [Note: Some judges halt discussions about whether the burden requirement is “right” or “wrong”; it is, after all, the law. But discussions about how jurors feel about the law should be fair game. Choose your phrasing carefully.]
- “Y, would it make more sense to you if my client were required to prove to you that it did not do what the other side claims?”
- “Before learning about the law, how many of you were thinking, ‘Ooooh… they’d better show me a lot of evidence to prove they didn’t mess up.’?”
Any juror who feels the burden of proof requirement is backwards, strange or just plain wrong is most likely a juror who will expect your client to prove why it’s not a wrongdoer… whether she admits it or not.
Corporate Greed / Deep Pockets
If the case involves a well-known corporate defendant, the issue of “deep pockets” and “corporate greed” will be percolating in jurors’ minds. However – despite the need to weed these folks out – I do not typically recommend talking about these issues in oral voir dire (they are much better for a written questionnaire). If it’s an unusually big concern, we will typically discuss the topic in a more positive light (thus, planting seeds for our story) and focus on finding folks who don’t agree with our premise.
For example, in a quest to flush out anti-corporate jurors, we might develop a scenario that allows us to humanize the business, brag about our employees, and to portray the company as having good judgment and a people-first persona. It’s an easy way to weave very casual Q&A into the discussion and to encourage participation from the “quiet ones.” Here are a few jurors we’d want to identify and, possibly, strike:
- People who are unhappy or dislike their current job.
- People who have little to no experience working in big business.
- People who think big businesses should just “pay some money” so everyone can avoid a lawsuit simply because it has the funds.
- People who believe corporations value profit over people. [Note: In a general query, this will elicit a significant number of hands in the air.]
When I’m consulting with a defense team, I often discourage counsel from spending too much time discussing monetary damages because plaintiff counsel usually does the job for us. Whichever prospective jurors the plaintiffs don’t like, we on the defense side typically do. Usually, we plan on asking some global queries and making assessments and adjustments as needed.
Of course, each trial is different, and there are some cases, venues, and circumstances that merit a more in-depth discussion of damage-related issues.
Here are a few questions we’ve used in recent jury selection proceedings. The matters included claims related to wrongful death, discrimination, breach of contract, manufacturing defect, and just plain negligence. You’ll notice the language is simple and the tone is casual: it is conversational and (hopefully) promotes a safe environment for honest feedback. Jurors will be more candid and vocal if they believe you are genuinely interested in what they have to say, and will accept their answer without judgment.
- “This is an emotional and difficult case because we are dealing with the death of a child. There isn’t a person involved in this case on either side who doesn’t feel sympathy and sadness for the family. Y, based on your recent experience of [insert whatever you have learned], do you think it might be hard for you to set sympathy aside and reach a verdict based only on the facts? Do you feel a twinge in your gut that the Plaintiff should receive at least some money as compensation for her troubles, and for the time and energy she invested in this lawsuit?”
- “X, how comfortable would you be looking [insert name of Plaintiff] in the eye at the end of the trial and saying, ‘[Plaintiff], I am so sorry you felt that you were treated unfairly, but based on the evidence in this case, I cannot award you any money’? Is this something that you could do, if the evidence supported it?”
- “Z, how difficult would it be for you to face your friends at work next week and tell them that you did not award a fellow [insert job] any money in his lawsuit for wrongful termination?”
- “Which is more important to you: compensating someone who was injured, or determining who or what actually caused the injury?”
Ultimately, jurors must believe your version of the facts. My preference is to focus the bulk of voir dire on discovering the juror attitudes and beliefs most likely to impact juror expectations of my client, and influence a juror’s willingness or resistance to embrace our story.
I rarely advise my clients to strike a potential juror based solely on feedback related to perceptions about lawsuits or damages. But all things being equal, I’d much prefer a potential damages juror who exhibits attitudes consistent with my client’s story than a possible low-damages juror who seems resistant to our themes. Wouldn’t you?
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