Source of article The Advantage Blog - Tsongas Litigation Consulting.
“Franken’s fall was stunningly swift … reflect[ing] the cultural moment: In an era when women’s accusations of sexual discrimination and harassment are finally being taken seriously, after years of belittlement and dismissal, some see it as offensive to subject accusers to scrutiny. “Believe Women” has become a credo of the #MeToo movement.”
Jane May, The Case of Al Franken, The New Yorker, July 22, 2019
Since the wave of headlines about allegations of sexual assault against Hollywood moguls, more and more women have come forward with their own accounts of sexual mistreatment in the workplace and beyond. #MeToo went viral and everyone was talking about it. Powerful public personas have been quickly felled by the accusations, although others have weathered the storm with bravado. This #MeToo conversation has empowered many voices that might have otherwise have been silent. Even as it has empowered voices, it has made defenses against the allegations challenging, as Norman Ornstein, a close friend of Al Franken’s and an American Enterprise Institute political scientist notes (May, 2019).
As the chorus bolsters support for those who have experienced abuse, assault or harassment, employment defense attorneys have been wondering how and in what ways this broad cultural movement influences jury selection. In the last year, we have been involved in numerous mock trials and actual trials dealing with issues at the heart of the #MeToo movement. There is no doubt that the environment has changed, but concerns about those changes need not hamstring a defense. In fact, in some ways, the movement and the jury pool’s knowledge and awareness of #MeToo offers new opportunities for defense counsel.
Jurors are more willing to share their stories
One of the most important changes we’ve seen since the rise of #MeToo is that potential jurors are more forthcoming and expressive in their responses to voir dire questions on the issue of sexual harassment and assault.
In several recent trials, we have observed attorneys successfully eliciting candid discussion of jurors’ experiences and opinions of sexual mistreatment of women in the workplace and beyond. What was once a subject where jurors would be more passive, because of the broader community conversations we now have a situation where potential jurors are more verbose, engaged, and opinionated.
In a recent trial, we were able to engage the venire in a discussion of the allegations of sexual harassment and sexual assault in an employment defense case. We were able to easily encourage jurors to speak candidly and privately with us and the court regarding their past experiences with abuse and assault. A number of them acknowledged their difficulty judging the facts in the case with an open mind because of those experiences and emotions.
Even in the public voir dire, people in the venire were more willing to discuss their opinions on allegations of sexual harassment because the #MeToo movement has resulted in them forming strong opinions on the issue. What was once a subject where jurors would be more passive, because of the broader community conversations, we now have a situation where potential jurors are more verbose, engaged, and opinionated.
Another telling example was a recent sexual assault case in which a questionnaire was administered before voir dire. Twelve women and two men reported that they had been victims/survivors; eight of those jurors indicated they wanted follow-up to be conducted in private. But after one of the four jurors who had not requested questioning in private shared her very detailed story of a college sexual assault, all eight of the jurors who requested private questioning ended up giving their answers in open court. The first of these eight said, “I don’t need private questioning. If she can share her story, I can share mine.”
Despite the increased willingness to speak up, counsel should not presume that all victims of sexual assault or harassment will be so open. Requesting a juror questionnaire or allowing jurors to give answers in private in cases with issues related to #MeToo and sexual assault allegations is highly prudent.
#MeToo is a polarizing topic – finding your cause challenges becomes easier
The more a case or social issue is polarizing, the more likely you will be able to create successful conditions for cause challenges in jury selection. When it comes to issues related to #MeToo, those with strong opinions fall on one side or the other regarding the believability of the claims. The Christine Blasey Ford/Brett Kavanaugh testimony brought the polarizing issues to the forefront of our national attention. On one side were those who believed Blasey Ford without question. On the other side were those who aggressively questioned the veracity of her claims. Social media was riddled with a battle between #BelieveWomen and #BackBrett.
Not everyone falls into one side or the other on this issue, but it is a polarizing issue, and anyone trying a sexual assault or harassment case should explore this topic in voir dire to find people with strong and unwavering opinions. For example, if you’re defending, those who believe that allegations should be believed on their face create a presumption shift for the defense. The question in voir dire can be asked as a “forced-choice” question:
“We have read a lot in the media about people coming forward with allegations of sexual mistreatment. When we hear these stories, some people find themselves believing the allegations every time. ‘Why would a woman lie?’ is what they ask themselves. On the other hand, there are those who say that there are too many false claims to believe an allegation on its face. They want to hear more evidence before making a decision. How many of you find yourself in the first camp – that you tend to believe the account of women from the start? That is to say, you presume their claim is legitimate and true?”
Those who raise their hands are strong candidates for follow-up and for an eventual cause challenge, as the defense will likely have to prove to them that the allegation is not true.
So, the more a case or social issue is polarizing, the better the opportunity for a defense team to create successful conditions for cause challenges in jury selection and in the trial as a whole. In polarizing cases, we like to think about the opportunity to have a 3:1 strike ratio, at a minimum. For example, in one instance, with a rather controversial sports personality, we were able to generate 14 cause challenges to the opposing’s two cause challenges. If people had a strong negative view, they were ripe for cause; if they, on the other hand, had a positive viewpoint toward a party, they were nonetheless able to express an openness to changing their mind based on the facts in the case. The negative views were hardened against such recovery. With three peremptory strikes on each side, we had 17 strikes to their five. That leveled the playing field at the start of the trial.
Because of the prominence of people’s views on #MeToo and because of potential jurors’ willingness to talk about the issue, the ability to identify and generate defense cause challenges is more likely. It is our experience that plaintiff-oriented jurors are more likely to express hardened views that set up a cause challenge whereas defense-oriented jurors could be critical of allegations but express an openness to the evidence presented by the accuser.
Men v. Women
Typically, our jury selection philosophy is that demographics are often the least predictive of behavior and verdicts (compared to experiences and attitudes). However, one would think that gender is much more of a variable in cases where gender and power is at the heart of the claims. This does not mean there is a blanket rule that men are better than women—or vice versa—nor would we ever advocate such a view. But we have witnessed some interesting ways that the #MeToo movement has influenced men and women’s attitudes regarding case facts.
One example comes from a trial that took place in the heart of the media’s attention on Bill Cosby. A post-verdict interview in that case found one important way in which #MeToo influenced one male juror. He explained, “The timing of this trial was very interesting. Every night you’d go home and hear about men in a variety of settings acting inappropriately to women. So, all the time I was trying to make sure I didn’t have my blinders on and being a typical stupid man. I actively tried to make sure I looked at this from a variety of different ways…”
It’s important to explore this topic with men and women, find out how they feel about the topic, and make strike decisions based on their experiences and opinions, not their gender alone.
Victims on your jury
Similar to the question of gender, attorneys are right to ask about the important role a sex abuse victim might play in a case outcome. Conventional wisdom is that the defense would never want a victim of sexual mistreatment in a sexual abuse, assault, or harassment case. And if nothing else about that potential juror is known, they certainly present a risk. But removing victims is not always a necessary move, depending on the case facts. Judgements about sex abuse victims should be made after a thorough voir dire (when possible) because not every victim will take the side of another. Jurors have told us, “We hear so many stories of women being victimized in a variety of ways. Mine is just one story. I know what happened to me, but I don’t know what happened to someone else. Every situation is different. Some are true and some are not”; and “That is not abuse. What I went through was serious abuse. And I didn’t get millions.”
Jurors view cases through their own lenses, but just as they may see similarities between their experiences and those of a plaintiff, they may also see significant dissimilarities. The art is to identify one juror’s relative risk compared to others based on your case facts, what jurors say, and how they say it.
The #MeToo movement has emboldened people with legitimate claims to come forward. Some jurors may be more receptive to such claims as such allegations confirm an attitudinal expectation—motivation fed by their worldview. However, the movement has, for other jurors, encouraged some claimants to manufacture allegations and exaggerate events for selfish reasons. Most jurors understand the importance of this movement, but many jurors are also aware that perceptions can be wrong and/or misleading. Some jurors are ready to be quite skeptical of most claims. Indeed, it is such a reaction that Debra Katz laments about in the Al Franken episode: “To treat all allegations the same … feeds into a backlash narrative that men are vulnerable to even frivolous allegations by women.”
The #MeToo movement will continue to play out in the public and the legal sphere and warrants continued attention. Every case is different and requires a customized voir dire strategy. But we have witnessed an increased willingness for jurors to share their open and honest opinions on the topic of #MeToo. Counsel should feel comfortable exploring this topic in depth and seek to level the playing field by aggressively pursuing cause challenges of the high-risk jurors on the panel.