On Monday, the Seventh Circuit affirmed two jury-selection decisions in a Section 1983 wrongful arrest lawsuit. In Marshall v. City of Chicago, No. 13-2771, 2014 WL 3892562 (7th Cir. Aug. 11, 2014), officers placed the plaintiff under arrest and took him into custody for constructively possessing a firearm while it was unlawful for him to do so. The plaintiff then sued for damages on the theory that the arrest was not supported by probable cause. The civil jury returned a defense verdict, and the plaintiff appealed. The decision is available here

On appeal, the plaintiff argued that the district court abused its discretion by denying his motion to excuse a prospective juror for cause on the grounds that she held a prior belief concerning the possession of firearms by convicted felons which made her unfit to serve. The Seventh Circuit wrote that a district court must apply a two-step process in determining which prior beliefs warrant for-cause dismissal: (1) does the prospective juror manifest a prior belief that is both material and “contestable,” meaning a rational person could question its accuracy and (2) if so, can the juror suspend that belief for the duration of the trial? The Seventh Circuit found that the bias alleged by the plaintiff was immaterial and that the juror’s exchanges with the trial court judge confirmed her ability to disregard her own prior experience and judge the case on the basis of the evidence brought before her.

Second, the plaintiff argued that the district court erred by refusing to agree to an ad hoc alteration of the parties’ agreed-upon jury selection procedures for the express purpose of ensuring that the petit jury would include jurors of a certain race. The parties had agreed, prior to trial, to try the case to a jury of eight, which would be selected from a venire of twenty. The order in which veniremen were called for voir dire was randomly assigned, with no knowledge of race, by the clerk’s office. Of the first fourteen veniremen called, none of the twelve whom were not excused for cause were black. At that point, a petit jury of eight (non-black) jurors had been selected. Counsel for the plaintiff, who is black, noticed that three of the six remaining veniremen were also black, and moved the court to expand the size of the petit jury to ten “in the hope of getting one of the persons of color on the jury.” The defendants objected and the court denied the plaintiff’s request. The Seventh Circuit wrote that it is established that a litigant has no right to a petit jury which contains members of his race or which fairly represents a cross-section of the community. It further wrote that a litigant does have a right to a jury venire composed of a fair cross-section of the community, but the plaintiff did not challenge the composition of the venire. And it wrote that the plaintiff also had a right to see that no state actor intentionally excluded any person from the petit jury on account of their race, but he did not claim that any state actor acted in such a way.

The Seventh Circuit affirmed the district court on both issues, finding the plaintiff’s arguments meritless and finding no abuse of discretion.

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Cases can be won and lost on voir dire. Success in jury selection relies on an attorney's interpersonal skills, mainly an attorney's ability to stand in front of a group of strangers and convince them that he or she is to be trusted.

While jurors are influenced by external factors such as knowledge of the case. More important are the internal factors, including their own past experiences and psychology. Internal factors are not only highly influential, but are also immeasurable, as the jurors themselves typically cannot explain their influence nor are they even aware of those influences. As a result, these internal factors are all too often overlooked.

Diversity Matters
First we must be honest about the reality of voir dire. While it is, in fact, the process by which biased jurors are removed from the juror pool with aspirations of producing a "fair and impartial jury," an attorney does not leave the role of advocate at the courtroom door when commencing voir dire. Being an advocate means that if an attorney believes that a juror is biased in his or her favor, that attorney will try to keep that juror.

Diversity is more than just race – it means valuing differences such as ethnicity, gender, age, religion, sexual orientation, socioeconomic and educational backgrounds. Investing in diversity goes beyond mere stereotyping, such as assuming an injured plaintiff wants a jury composed only of liberal-minded, soft-hearted, and generous people. Rather than focusing on generic stereotypes, attorneys should accept that as advocates, they are seeking a jury most favorable to their case. Attorneys must recognize that this begins with how the jury feels about the advocates. In turn, law firms must encourage their attorneys to use their diversity to relate to jurors as part of being zealous advocates for clients.

Diversity in a law firm allows a firm to empower its clients. A diverse trial team has many advantages, as not only is there is a visual benefit of the jury seeing a diverse team, but it also allows the trial team to be strategic. A firm with diversity among its attorneys can decide on a moment's notice who is best suited for voir dire based on jury makeup. If jurors believe that an attorney is a relatable figure, they are more likely to be candid in their responses during voir dire, and to trust that attorney more than the opponent throughout the trial.

Where Attorneys Unnecessarily Limit Themselves
While the peremptory challenge is a legal tool used to remove biased jurors, empirical data shows that many jurors who actually sit for trials are influenced by prejudices and biases. Despite this fact, attorneys often struggle with the importance of addressing how race and gender-based stereotypes inevitably affect people's judgment and decision-making which can result in losing juror biased in the client's favor.

Much of this failure to capitalize on jurors' favorable biases is due to the fact that freedom to select the perfect jury has its limits. The Seventh Amendment to the Constitution guarantees that a defendant in a civil suit has the right to a fair trial, by an impartial jury. Furthermore, in Batson v. Kentucky, 476 U.S. 79 (1986) the U.S. Supreme Court made it illegal to reject jurors on the basis of race. The Court determined that a man is entitled to be tried by a jury which represents a cross section of his community, and reasoned this could not be accomplished by rejecting jurors based on their race.

As a result, some argue that attempting to explicitly use one's race or gender to gain favor with a potential juror would likely cross the line established in Batson, believing it is unconstitutional to use a potential juror's diversity as the basis for a peremptory challenge. However, this extrapolation has limited attorneys unnecessarily, as Batson and its progeny regard excluding a juror on the basis of race, ethnicity, or gender. As set forth below, there are a myriad of ways diversity can be utilized within constitutional bounds.

Proponents of intentionally maximizing diversity in their legal teams argue that it is unethical for a defense lawyer to disregard what is known about the influence of race and sex on juror attitudes in order to comply with Batson. "The ethical obligation to comply with Batson conflicts with the ethical obligation of defense attorneys to vigorously defend their clients: The task of the lawyer, therefore, is to outsmart the system--to figure out the demographics of justice and to manipulate it during jury selection by eliminating jurors with the so-called wrong personal characteristics." Abbe Smith, "Nice Work if You Can Get It": "Ethical" Jury Selection in Criminal Defense, 67 Fordham L. Rev. 523, 524-28 (1998).

The importance of eliminating jurors with biases against your case is consistent with public sentiment. A 2008 Harris Poll showed that less than three in five Americans believe juries can be fair and impartial all or most of the time. Just Under Three in Five Americans Believe Juries Can Be Fair and Impartial All or Most of the Time, Harris Poll, Jan. 21, 2008. And it isn't just public opinion - empirical data supports the notion that many jurors who actually sit for trials are influenced by prejudices and biases.

This should not be surprising, as attorneys themselves are similarly influenced. Attorneys have all learned stereotypes from their culture and environment. When a lawyer sees a potential juror, he or she will almost instantaneously categorize that person on the basis of age, race or sex. Often unconscious of the stereotyping, an attorney will pay greater attention to information given by that juror that confirms their expectations. Studies have also shown that information that confirms expectations based on a stereotype will be recalled more easily, and any ambiguous information will be interpreted to conform to that expectancy. Antony Page, Batson's Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 228 (2005).

As jurors make the same categorizations about the attorneys conducting voir dire, using diversity within a trial team to elicit favorable characterizations should be a focus of voir dire questioning. Questions that provide information that not only reinforces, but makes the jurors' inherent biases apparent to the legal team, should be an intentional focus. In doing so, there is a greater probability that those jurors with biases in favor of your case can be retained, and those whose biases do not favor your side can be challenged.

The Ultimate Goal – Getting the Juror You Need
Conducting a successful voir dire has as much to do with the manner in which questions are presented by an attorney as the questions themselves. The importance of connecting with the jury on a personal level can not be overstated.

One of the best ways an attorney can connect to a juror is to identify commonalities between the juror and attorney to establish a connection prior to trial. In the same way, jurors that see an attorney as similar to themselves will make attributions to the attorney such as the trustworthiness of that attorney. Capitalizing on similarities can be as simple as a slight, subtle change in dialect when greeting jurors. An African American female attorney who has tried many cases explained that she intentionally tailors her greeting to reflect the characteristics of the juror. When she greets a middle aged Caucasian woman, she might simply say "Good morning Ms. Morgan" to reflect that she is polite, articulate and trustworthy. When greeting an African American woman, she might use a more causal "How are you doing Ms. Morgan?" to reflect a familiarity that is conveyed to that juror by the dialect and tone of her greeting. In instances like this, what is said is not as important as using cultural mannerisms to communicate with the prospective juror.

Other techniques can be even more subtle, but highly effective, such as a slight change in an attorney's demeanor, or even just making a connection through eye contact. An African American male attorney explained that African Americans tend to communicate with their eyes. When walking down a street, it is a part of their culture to do a head nod of recognition when they see another African American. Therefore, when he sees black jurors, he makes a point of looking them in the eye for a bit longer so that commonality and understanding exists between them.

In another instances, a female Latina attorney who practiced in Laredo, Texas stated she appreciated the opportunity she received solely because of her Hispanic background. She was taken to trial very early on in her career because the jury pool was composed of mostly Hispanic people and her firm recognized the value her heritage had with the jury. During voir dire she made a point of introducing herself with her natural accent so that the jurors recognized that she was one of them.

While keeping suggestions like these in mind, an attorney must be careful not to alienate other jurors in this process. Attorneys for the defense have a particular advantage in this regard, as they conduct their examinations after the Plaintiff. Therefore, they retain the benefits of the knowledge derived from the prior examination, and consequently can incorporate this into more targeted questions to find commonalities among the trial attorney and the remaining jurors. Defense attorneys who are diverse also have the advantage of switching the attorney conducting voir dire at the last moment if something is revealed during plaintiff's questions that reveals a better match exists.

Although many attorneys are aware of the importance of posing questions relating to bias and life experience during voir dire, a great deal discount the importance of relating the similarities they find to themselves. This practice can be invaluable, but requires law firms to have already made a commitment to diversity. If a law firm is lacking in diversity, it is lacking in its ability to provide the best representation for its clients.

While some firms have begun to tailor their trial teams to be more diverse, many have not. Firms are still composed largely of white males, where minorities account for only 5.4% of partners, and 18.1% of associates. Minority women account for less than 2% of partners and 10% of associates. This places firms who have failed to invest in diversity at a distinct disadvantage when connecting with any jury. Survival of any business enterprise in today's world requires that the dialogue be open and honest about diversity. Recognizing the importance of diversity and making a commitment to it can only strengthen the success amongst law firms within the legal community. When we look at the jury pool today, we no longer see a majority of any one race, gender, or socioeconomic status. We see the melting pot we have become and a successful firm is armed with the ammunition to relate to that melting pot.

Stacy L. Douglas, Wood, Smith, Henning & Berman
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A year ago we published an article in The Whisper titled Please Jurors, Check Your iPhone With The Bailiff (Vol. 7, Issue 2.) The article discussed the increasingly frequent problem of jurors' use of the Internet to do their own research and the use of social media sites such as Facebook and Twitter to communicate with each other and the world outside of the courtroom regarding the trials in which they serve. The temptation of a sitting juror to do her own research, or to discuss the case with other jurors or outsiders, has always been there; it is just that the advent of the digital age has made the ability to succumb to temptation so much easier. Clearly, courts have taken notice of the problem. Our article last year discussed the nature of the problem and what you, the lawyer, could do to learn of and handle the problem when it occurs. This article will in turn discuss what courts and legislatures around the country have done, and to suggest what more should be done to combat the problem at its source.

In the past year, there have been countless stories of jurors tweeting, posting to Facebook, blogging, or doing internet research during an ongoing trial. In a recent criminal case in California the jury was excused for a Mardsen hearing, which is when a defendant requests a new court-appointed attorney based upon a claim of ineffective assistance of counsel. During the hearing, which must be held outside the presence of the jurors, several jurors used a cell phone to Google the meaning of the hearing. The judge found out and was forced to declare a mistrial. Before releasing the jury, the judge reprimanded the jury and told them the consequences of their actions – that the State would have to pay for a new trial, and that the defendant, who may in fact be innocent, would have to spend the next few weeks in jail awaiting his new trial. Thus, the judge advised, the State incurred substantial funds and a man lost his liberty, all because the jurors spent less than five minutes on Google during a trial. Had the jury been better warned, with an explanation of potential risk, the jury may not have committed the misconduct.

Another example is that of Seth Rogovoy, a Massachusetts juror who was dismissed from a trial in February 2011 for his tweeting during his service. The tweets included a post which stated: "I am in contempt of court, de facto if not de jure" and "Sucks that you can't tweet from the jury box. What's the fun in that?" These tweets show that Mr. Rogovoy both understood that he was not allowed to make the posts and the potential consequence to himself, yet he did so anyway. After being dismissed by the judge, Mr. Rogovoy stated: "I never mentioned any of the people: the defendant, the witnesses. I never mentioned the court I was sitting in." In an interview later given to Bob Gardinier, as reported in the February 9, 2011 Albany Times-Union article Rape trial of ex-priest now before jury: Deliberations set to start in case; juror dismissed after using "Twitter," Mr. Rogovoy stated that, given the popularity of social media platforms like Twitter, judges will be forced to confront them in the courtroom. In that respect, Mr. Rogovoy is absolutely correct.

In order to prevent further juror misconduct through the use of social media, legislatures need to make it clear that it will not be tolerated, and courts need to instruct juries specifically on the impropriety of discussing or researching regarding an ongoing trial, why it is improper to discuss or research an ongoing trial, and the consequences to the juror if he or she fails to follow those instructions. This instruction should be made several times throughout the course of a trial, including when candidates are first called for jury duty, before voir dire, at the beginning of trial, before every recess, and before deliberations. The court must then monitor the jurors as best it can, and follow through with the threatened punishment. Most courts are now doing something about the social media, and in fact most of these suggestions are being followed by at least some jurisdictions. However, no jurisdiction has yet put them all together in a comprehensive effort to combat the social media problem. Without a strong message that juror misconduct is impermissible, the problem will only get worse.

More than half the state and federal courts now have jury instructions that at least make a passing mention of the internet when advising jurors or prospective jurors on the prohibition of performing outside research or discussing an ongoing case. This is a good first step, as many of the jurors who have made social media postings in the past have relayed that they did not understand this to be a "discussion" which was prohibited by the rules. For this reason, it is important that the instructions make more than a mere passing reference. Rather, the instructions should be as specific as possible, mentioning sites such as Facebook and Twitter (or whatever the prevalent form or social media of the day happens to be). At least then, the rule itself will be clear to the jurors.

Additionally, the most effective jury instruction not only gives the rule, but also explains the reasons behind the rule. While lawyers understand that some evidence is inadmissible for one reason or another and will not be known to the jury, many laypersons have a different view. They see lawyers and judges as keeping information from them that they need to know. Thus, not only are they curious, but many believe that they must know all the facts in order to be the best juror they can be. It is also important, as many model instructions now realize, to give the jury the reasons so that they understand that it is important that they follow the rules. Just as important is to advise the jury of the consequences to the courts and parties if they do not follow the rules, and the likelihood of a mistrial.

Often these instructions are repeated in one form or another several times throughout the trial. This, coupled with a recitation of the policy reasons underlying the instruction, will provide the jury with a constant reminder of the prohibition and sound basis for not falling to temptation. While it may seem repetitive, the ease with which a person in today's world can pull out their cell phone and record a status update which can jeopardize the entire trial necessitates the constant reminder as seen in the examples above.

In San Francisco County, in response to a jury pool of over 600 that was dismissed in 2009 following the realization that they had all researched a high-profile case prior to voir dire, the court takes a more aggressive approach. Prospective juries are given a questionnaire with a cover sheet that states in part:

You are ordered not to discuss this case with anyone; do not allow anyone to discuss the case with you. The only information you may tell anyone is that you are in a jury pool for a trial and the time requirements of that trial. You are also ordered not to read, listen to, or watch any news, Internet, or other media accounts of this case, past or present. You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information. (CCP §1209(a)(10))

In addition to the instruction on prohibition, there must be consequences for a juror's willful disobedience of the rules. There are many individual instances where a judge has held a juror in contempt of court for violating the prohibition on research and discussion, and held hearings. This may need to be a more frequent and publicized occurrence to stem the growing problem. California recently passed a new law, AB 141, which went into effect on January 1, 2012, that makes a willful violation of the prohibition on research or use of social media punishable by not only civil contempt, but also makes it a misdemeanor. See Cal. Civ. Proc. Code § 1209(a)(6); Cal. Penal Code § 166(a)(6). In addition, the bill amends current law and requires that the jury be specifically instructed, before trial and before recesses, on the prohibition of research or dissemination of information, in all forms including electronic and wireless. See Cal. Civ. Proc. Code § 611; Cal. Penal Code § 1122. If anything, the bill does not go far enough. For instance, it could require offending jurors to pay for the consequences of their action, including the re-trial of the case if necessary.

While several judges in California and in other jurisdictions have taken it upon themselves to hold a juror in contempt for prohibited conduct, including the use of social media or performing internet research, the California Legislature's codification of this violation as not only civil contempt, but also a misdemeanor, is a step in the right direction. However, while California's new law requires the judge to advise juries regarding the prohibition on internet research and use of social media, it does not require the judge to instruct the jurors on the consequences of their actions if they fail to follow the rules. This too is important. While advising the jury of the reasons behind the rule appeals to their sense of civic duty – the carrot – advising the jury of the consequences of failing to adhere to the instruction lets the jury know that there will be real punishment – the stick. Both the carrot and the stick are necessary in order to have the best chance of strict adherence to the rules.

Finally, not only is it important that there be a law in place for handling a juror's violation and that the jury be advised of that law. The law must be enforced, possibly by the district attorneys as a misdemeanor rather than the judge as civil contempt. The instruction could also contain a request that the jurors report to the court if they know or suspect that one of their co-jurors may be violating any of these orders, which would in essence be self-enforcement.

Other courts have experimented with the prohibition of cell phones in the courthouse for everyone, or at least for jurors. Indiana, for instance, requires the bailiff to collect and store computers, cell phones and other electronic communications devices prior to deliberations. This rule was implemented after the Indiana Supreme Court considered a case wherein a juror took a cell phone call during deliberations. There, the Indiana Supreme Court wrote: "We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice….The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation." Henri v. Curto, 908 N.E.2d 196, 202-203 (Ind. 2009). Although helpful for times when the jurors are actually at the courthouse, this solution may not provide much in the way of curbing the practice of Internet research and social media discussions after hours, unless the jury is sequestered for the entire trial.

Our jury trial system is dependent on the jurors who are privy only to the evidence admissible in court, instructed on the law solely by the judge at the conclusion of the evidence and who have not been predisposed to outside opinions or discussions of the case before deliberation with their fellow jurors. While no solution is perfect, it is clear that courts, legislatures, and lawyers must do more to halt the increasing episodes of juror misconduct.

Tom D'Amato is a shareholder with Murphey, Pearson, Bradley & Feeney in San Francisco. He maintains an active litigation and trial practice in state and federal courts, and in administrative proceedings before regulatory and government agencies. Chief among his areas of practice are professional liability, business disputes, intellectual property, real estate, employment and personal injury. Mr. D'Amato also regularly represents clients in appellate courts.

Adam Koss is an associate with Murphey, Pearson, Bradley & Feeney in San Francisco. Mr. Koss focuses his practice on all phases of litigation, representing clients at mediation, arbitration and through to trial if required. Mr. Koss has an active practice defending professionals and their businesses, specifically in malpractice actions. Although he focuses predominantly on the defense of professionals and businesses, he also represents clients in a variety of other fields, including products liability, employment law, real estate, contract disputes and general negligence.

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Litigation Funding

Posted on May 9, 2012 04:16 by Nathan A. Schachtman

An internet search on the phrase "litigation funding" returns thousands of hits.  There are an incredible number of companies and persons "out there" who will buy equity shares in a lawsuit.  Hedge funds are actively seeking opportunities to invest in lawsuits.

Putting aside the concerns about champerty and maintenance, I wonder whether defense counsel are doing enough to work on this issue in trials.  Assuming that these websites really are engaged in the practice they describe, shouldn't defense counsel include questions related to investments in lawsuits, in their voir dire of the jury panel?

Obviously if potential jurors owned stock in the defendant company, they would be disqualified.  Equity ownership in a chose in action surely is relevant to counsel's evaluation of a prospective juror's impartiality.  Even if the prospective juror is not invested in this particular lawsuit, the question is important.  If the investment is in the litigation generally, or in other plaintiffs' cases within the same litigation, then a jury verdict in favor of the plaintiff would likely benefit the juror by increasing the settlement value of the other cases.  Even investments in unrelated personal injury litigation, the investments have the potential to prejudice the juror against the defense.  For instance, if the juror has investments in another personal injury litigation, returning a large verdict in the present case could benefit the investment by making the company defending against the juror's chose in action believe that trying cases in the particular venue was too dangerous to risk, and those claims should be settled.

Certainly, the existence and extent of investment by others in a lawsuit should be a worthy line of discovery to conduct in mass tort litigation.

Are we doing enough to stop this insanity?

This article was first posted at the author's website on May 8th, 2012: http://schachtmanlaw.com/litigation-funding/

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Categories: Jury Selection | Torts

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Less Jury Trials Impact Many; Florida Study

Posted on February 10, 2012 08:56 by Lori Vella

If you spend some time looking at the statistics, you will see the number of jury trials is swiftly declining.  Many states and organizations have recognized the decline, voicing concerns about the resulting impact on the judicial system, the public and lawyers.  The Florida Bar created a special taskforce, the Special Committee to Study the Decline in Jury Trials (“Committee”), to research and analyze the trend, determine the root cause of the decline and recommend a course of action to the Florida Board of Governors to minimize the impact of this decline.  The Committee issued its final report in December 2011.  The full report is available at floridabar.org by clicking “About the Bar,” followed by “Committees” and then “Special.”

The Committee reviewed, among other published studies, Professor Marc Galanter’s article The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts (1 J. Empirical Legal Studies 459 (2004)).  When you view the statistics, the decline is apparent, and staggering.   For example, in 1962, 11.5% of 50,320 civil federal court dispositions were by trial.  In 2002, there were only 1.8% dispositions by trial, out of 258,876.  In Florida civil cases, 1.6% of total civil cases (155,407) were resolved by jury in 1986.  By 2009, the percentage reduced to .2%, while the number of civil cases increased to 401,463. 

According to the Committee, there are several reasons why jury trials suffered declines.  For civil cases, the rise of alternative dispute resolution mechanisms contributed markedly.  The expense of trials is always another common deterrent.  Another factor is the time it takes to bring a case to trial.  Despite the reduction in number, it was noted that jury trials have become more complex -- longer and more complicated. 

The declines have not been without negative impacts.  With fewer jury trials, fewer people participate in the judicial system as jurors.  Jury service helps educate the public about the justice system.  It is a simple way for the average citizen to play a role in governmental decision making.  If the nearly all disputes are resolved privately, via mediation or arbitration, rather than in an open courtroom, the public’s perception of the justice system will become further skewed.

The decline in jury trials also contributes to reduced funding to the court system, as the decline itself may be viewed as a reason to fund less.  This contributes to a never ending cycle of funding and less independence of the judiciary. 

One of the greatest impacts, however, is the effect on new lawyers.  A lawyer learns best by first-hand practice.  With less opportunity to conduct a trial, lawyers must look to other training which will always be less adequate than the real thing.  The new lawyer ends up feeling uncomfortable and unsure regarding his or her skills.  When the opportunity finally arises, the lawyer may shy away from the experience because he or she simply does not know how to try a case. 

The Committee recommended several measures, including full funding of the courts.  To reduce the impact, the Committee also suggested training and mentoring programs for young lawyers, such as certified legal intern programs or State Attorney/ Public Defender internships.  The Committee further recommended techniques to the bench to more efficiently administer judicial duties, with less cost to litigants, such as streamlining discovery and encouraging the use of expedited jury trials. 

DRI created the Jury Preservation Task Force to examine this federal and state vanishing jury trial phenomenon and report on its findings, which will be published in a future edition of For the Defense.    


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The vanishing jury trial is perhaps one of the most important issues facing the civil justice system today.  Civil trials have declined in federal courts from 12% in 1984 to less than 1% in 2010.  Statistics from state courts, though more difficult to obtain, generally show the same trends.  The issue has been widely studied, and while the fact of the vanishing trial is clear, the reasons for the decline are less obvious.  Several theories have been advanced, ranging from a dramatic rise in case filings and underfunded court systems to the ever increasing cost of litigation and the success of alternative dispute resolution.  

In 2010, DRI created the Jury Preservation Task Force (JPTF) to examine and inform the membership of issues impacting civil jury trials.  The work of the JPTF is now underway.  In 2011, the JPTF conducted multiple surveys concerning issues impacting civil jury trials.  Survey respondents included State and Local Defense Organization (SLDO) leaders and participants in both the DRI Insurance and Corporate Counsel Roundtables.  The JPTF is now in the process of examining the survey results along with the significant body of research available on the vanishing jury trial and the initiatives being proposed to address the problem.
The JPTF, in collaboration with DRI’s Trial Tactics Committee, will publish the results of its findings in a future edition of For the Defense.  Then we will ask for your help.  Stay tuned!

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Jury Selection and Social Media

Posted on January 20, 2011 02:16 by Jim Pattillo

Following an established trend of researching social media in jury selection, this article from Law.com raises a few pitfalls of using this method of researching jurors.  First, it recognizes that jurors who use social media will probably have their privacy settings so that their information is not publically accessible-– a good practice for everyone.  If that is the case, then no one should have special access to it just for the purpose of jury selection. 

Second, the article points out that a juror could purposely alter their profile to get out of jury duty.  On one hand, it would be easy to assume a juror could just as easily mislead someone when asked direct questions during voir dire as they could online.  However, people are generally more candid and honest when they are asked questions face-to-face in a courtroom.  They are more likely to mis-lead behind the false façade of social media than they are in person.  Caveat emptor should be the rule for attorneys in using social media in jury selection.  Any information discovered about a potential juror’s biases is only as good as the source.

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Categories: Jury Selection | Social Media

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In Massachusetts, counsel are permitted to challenge potential jurors for cause.  In addition, each side is permitted to dismiss a specified number of jurors without stating a reason.  This practice, called peremptory challenges, has come under increasing scrutiny in Massachusetts.  I recently read an article in Massachusetts Lawyers Weekly entitled Is it Time for Peremptory Challenges to Go?  The concern raised by this article is that certain challenges are discriminatory or based on unethical motives.  So is the answer to abolish them completely or to place tighter restrictions on them?

As a trial lawyer, I have seen the value of peremptory challenges.  Such challenges allows you to strike potential jurors who simply do not want to be there and have been unsuccessful in their attempts to be excused from service; and it allows you to strike jurors who, based on the juror questionnaire, do not appear likely to be impartial and yet are not removed for cause.  If left on the jury panel, will these jurors sit attentively during the trial and listen to all the evidence?  As a defense counsel, I am particularly concerned about a juror who does not want to be serving, particularly since the plaintiff goes first.  Similarly, is a juror who has filed numerous lawsuits including one against his dry cleaner because his shirts were not properly pressed, likely to be impartial in the case against your corporate client?  While I agree that there is no room for discrimination or unethical conduct in the exercise of peremptory challenges, I feel that they play a valid role in insuring a fair trial for all parties. 

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Categories: Jury Selection

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Voir Dire in Civil Cases

Posted on February 5, 2009 04:40 by Robert B. Clemens

Conventional wisdom has it that a “good” voir dire is equal parts of (1) rapport-building; (2) information gathering; and (3) conditioning (or information providing).

The threshold source of information on each juror is, of course, the jury questionnaire. In some counties, one can expect the questionnaires to be delivered with the jurors, and there is a flurry of activity as counsel whip through the papers with a highlighter to try to identify the demographic factors which reflect the attorney’s own biases as to what makes a “good” or “bad” juror for any particular case. In other counties, one may be able to arrange to receive a packet of jury questionnaires as much as a week before the trial. The questionnaires often provide a good deal of information: age, marital status, occupational history, prior jury experience, and information regarding prior accidents, claims and litigation.

Rapport-Building is not a separate segment of the jury selection process, but begins with everything you do and say to create a good impression with the jury. It starts with how you dress yourself and your client; how you, as counsel, and your client present yourselves to the jury; and continues with everything you say and do in the context of the trial. Jury selection is your only chance to make a good first impression.

I deliberately downplay any suggestion that I will pry into the jurors’ “biases” or “prejudices,” and instead invite them to discuss with me any “preconceived ideas” or “notions” which they may have brought to the courtroom. I like to tell them that there is nothing at all wrong with having preconceived ideas – it may simply mean that they are not the best jurors to hear a particular case.

The way we ask questions of jurors will affect their perception of each of us as lawyers, and inevitably will reflect upon our clients, as well. The questioning must necessarily be as polite as possible, and our responses to even adverse commentary from the jurors need to be met with outward appreciation and polite closure. A potential juror may have just told you that he or she does not think much of lawyers, in general, and lawyers who represent clients like yours, in particular; and the real challenge is to say (sincerely): “Thank you for your candor, Mr. Brown.”

Procedurally, I prefer to begin by asking general questions of the venire, which are more in the nature of “conditioning” or “information providing,” asking for specific responses by a show of hands, and will then make sure that I have the opportunity to speak individually with each juror, either focusing on information provided by the questionnaire or on general questions which might assist me in determining whether or not the juror is appropriate for striking. During that entire process, however, the most important thing is to be self-deprecating, polite, and as empathetic as possible, so that the jurors will not dislike you more than opposing counsel.

I have a series of “stock” questions which I tend to ask of jurors as a group, each of which is intended to prepare them for service as jurors. If defending, for example, I will often ask if anyone has “already” decided how the case is likely to turn out, based on the questions posed by plaintiff’s attorney? I follow that with questions intended to communicate the difficulty I have as defense counsel in “following” the plaintiff’s counsel, who always “goes first.”

If there are “bad facts” that you know will likely be offered into evidence, try to condition the jurors to hear those bad facts by discussing them in general terms in voir dire. Voir dire is also an opportunity to discuss “good facts,” and if there are jurors who are empathetic to your client or the situation at issue, you may be able to draw out favorable information from the potential jurors that will effectively communicate arguments that you would not be free to pose yourself in the context of jury selection.

Information Gathering
Here is where many trial lawyers go awry. I often see attorneys working hard to identify the jurors they believe will be helpful to their case. The result, of course, is that they have helped me identify jurors who I believe should be stricken. The key is to remember that your mission is to “de-select” jurors who are less likely than others to decide the case favorably to your client.
A useful exercise to prepare for jury selection is to outline the qualities of the jurors you want and don’t want, and then make sure your questions are designed to elicit responses from the jurors you do not want. A question that is too “balanced” may help your opponent identify the jurors you would otherwise want, so the trick is to design questions that are more likely to help you in your jury selection than to help your opponent in hers.

Purely as a matter of courtesy and rapport-building, the lawyers should work to end each conversation with an individual juror in such a way that neither the juror nor his fellow jurors feel that you have any disrespect for the juror’s views, or for the juror as a person, as a result of his or her candor. You can thank the juror for being frank, make sure that you have come to “closure” with the juror, and move on, without necessarily validating the juror’s views.

Juror Disqualification
Any fool can exercise a peremptory challenge, but the real art in jury selection is persuading the judge to excuse “for cause” a juror whom you feel ought to be disqualified from hearing your case. I try to have the juror agree that it would be difficult for them to consider a case such as the one which has been described to them, or commit to an agreement that they would not want a juror with their notions or preconceived ideas considering this case if they were in the shoes of my client. I typically turn to the judge and “ask that Ms. Doe be excused for cause, given her concerns about her ability to be fair to my client.” I shudder whenever I hear a lawyer turn to the judge and ask “that juror number 5 be stricken for cause,” as it gives all of the jurors the impression that the bailiff might just unholster his pistol and take care of the matter on the spot. Even assuming the challenge for cause is sustained, that attorney has likely made it difficult to obtain candid responses from the “surviving” jurors.

These precepts are not easy to master, but lawyers who have these techniques firmly in hand can be confident that they are taking fullest advantage of their one chance to make a good first impression upon the jurors who will decide their cases.


Robert B. Clemens
Bose McKinney & Evans
Indianapolis, Indiana

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Categories: Voire Dire | Jury Selection

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