As I’ve stated before, jury selection is of tremendous importance in plaintiff’s personal injury trial work. Don’t neglect this task or wait until the final evening of trial to prepare your voir dire. That being said, we need to have an eye for what to look for if we are going to spot positive or negative jurors for our case. We may have a tendency to base juror selection on broad principles of demographics such as gender, race, age, income level, and the like. Leading trial consultant David Ball tells us that this type of decision making is generally ineffective in the jury selection process. However, if you can pinpoint a rationale that would make a certain demographic good or bad for your specific case then such demographic bias may be legitimately useful. For instance, if you represent someone who lives in poverty you may want to have jurors who also have experienced poverty. These jurors may be able to empathize with your client in a way that higher income individuals cannot. So the point is, do not try to generally select jurors based on their demographics unless you can pinpoint a reason why that demographic would be good or bad for your particular case, as in the example above.
What has been found to be more important than demographics and thus a better place to spend your time as plaintiff’s counsel is focusing on personality traits of respective jurors. David ball identified several different personality traits which are especially important for us lawyers to identify in the jury selection process. One of, if not the most important, of these traits is that of optimism vs. pessimism. In your voir dire you should be asking questions in an effort to determine which jurors are such. Optimists are far more likely to award money for damages. The reason for this is because optimists inherently believe that good can come from things such as giving money to help injuries. A pessimist might say that “money can’t heal pain” while an optimist might say “money given to plaintiff can assist him by providing for resources which will enable him or her to live a more functional remainder of his or her life”. Thus seek optimists in voir dire. Ask jurors about their current plight in life. Are they where they expected to themselves to be? Are they not where they thought they would be at this time in their lives, and for better or worse? Of course, you need to be following up with “tell me more about that”. In this way you can gauge the jurors own perception of their own lives. If a juror feels she is not where she should be then she is likely more pessimistic. If she goes on to tell you about all the challenges she has encountered and negative things which have affected her life then this speaks to pessimism. Think about removing a juror like this.
Another equally important personality trait to question on in voir dire is that of the caretaker vs. non-caretaker distinction. Some individuals are inherently inclined to help other people in need. Other people feel that people create their own destiny and thus should be solely responsible for picking up their own slack. Caretakers are much better for plaintiff’s cases as they are more inclined to want to help your client. Of course non-caretakers are going to be reluctant to give your client money to help cure harms and losses because non-caretakers will likely believe that such individual created his or her own plight and thus needs to be self-sufficient. To inquire into this topic ask jurors what values they believe should be bestowed upon children. You are trying to elicit answers relating to teaching children to be self-sufficient (non-caretaker) or teaching children to take care of others (caretaker). You can also ask jurors if they are involved with helping other people, preferably people outside of their own family. See what the response is and follow up. If they are involved in organizations which reach out to help the poor or battered women and the like then this may be an excellent juror for your case. Another good question for potential jurors is to ask them about the homeless population. See what should be done if anything to help the homeless. Jurors inclined to help the homeless may be inclined to help your client.
The third personality trait to identify is that of finding jurors who are more or less emotional. The idea here is that jurors who are comfortable with their own and other people’s emotions may be more empathetic to emotional harms caused to your client. For instance, these jurors may be inclined to give money for sadness and grief where an individual who is not so emotionally oriented might not consider such emotional harms and losses to be worthy of compensation. Discovering which jurors have this emotional component is trickier than discovering some of the other personality traits. Don Beskind suggests listening to any and all of the jurors responses to questions. Listen to the way that the juror expresses herself. Does she speak in a very rote fact driven way or does she speak more in emotions and feelings. Certain people speak and express themselves using logic while others are more feeling based. Get a feel for which are which in your daily life. Pay attention in the community as you interact with people. Soon you will pick up this emotional vs. non-emotional personality scale. For that matter you can practice all of these voir dire techniques in daily conversation without your listener having any idea that you are doing such. This is a good way to hone your voir dire skills.
Another personality scale you will be looking for is that of the content vs. malcontent type personality. You here are looking for individuals who are content with their current plight vs those who are not. When you find jurors who are content with their current circumstances move on to your next line of questioning. What you are really looking out for here is jurors who are not content with their current circumstances. These jurors may feel that they have been jilted in this life. They may feel that if the circumstances of their own life has not been fair to them then why should they expect otherwise for anyone else. They may say to themselves “if I have to deal with this unfair life then why shouldn’t the plaintiff”? Once you identify these jurors think about getting rid of them.
A final principle personality trait that you want to voir dire upon is that of the control vs. not in control personality type. The idea here is to look for jurors who believe that all aspects of their lives are a result of their own influence vs those jurors who think that some circumstances which may result in life are outside of a person’s control. The first group here is dangerous for you. These jurors will tend to blame whatever happened to your client upon your client. As unrealistic as this logic may be there are many people who will rationalize life in a way that would never allow for unforeseen negative circumstances to affect them. These jurors might say “I wouldn’t have been parked at that stoplight. Or I would have been watching my rear view mirror for oncoming traffic failing to yield”, or “I would have been able to get out of the way of that oncoming truck”. These individuals will blame your client for the injury he or she sustained as a result of another’s actions. Thus you want these individuals off of your panel. The other benefit of finding jurors who do attribute circumstances of a person’s life to outside forces is that these jurors will be more likely to pass blame on to others. These individuals who are on the opposite extreme tend to find the circumstances of one’s life at the mercy of another person who is more in control. These individuals will empathize with your client and make higher demands upon people like the defendant, who had “control” of the situation. Thus seek to keep these jurors on your panel.
Another type of individual that you really need to be on the sharp lookout for is the leader. Individuals with leadership characteristics can take increase your verdict substantially or they can otherwise leave your client with nothing. Don’t assume that because the leader likes you that he will decide in your favor either. He may like you as an individual but believe that your case is bad and thus find against you. Thus do not seat a leader unless you are just about certain that leader is with you. If you are on the fence with the individual, regarding his qualities as a juror but you do know he is a leader, then get him or her off of your jury if possible.
A final consideration to take into account is religion. Here I am speaking primarily of religious fundamentalists. These individuals can be dangerous for plaintiff’s case as well. Fundamentalists may believe that what happens to an individual in this life is god’s will. Thus if your client was injured he or she was injured for a reason. They may assume that your client did something earlier in his or her life which made them deserve the injury received later. To give money to an injured person would in effect be to thwart god’s will. So watch out for religious fundamentalists.
Before concluding voir dire go through each and every harm and loss suffered by your client. Ask the jurors if they have been exposed to someone who has undergone each and every one of your client’s harms and losses. When a juror says that he has been exposed to that type of harm or loss or knows someone who has then tell them to tell you more about that. Your goal here is to try to determine which jurors do not attach much weight or consideration to these types of harms and losses. You want these jurors off of your panel. Be sure to mention each harm and loss in a neutral way without indicating that these are the harms and losses of your client. Otherwise you will stifle your juror’s responses as your expectations of them become clear to the jurors. You are receiving a double benefit when you voir dire on each individual harm and loss. The first benefit is you discover which jurors you need to bump. The second benefit is that you get your jurors thinking about each harm and loss individually. This is a theme you want to resonate throughout your case, so you are well on your way by getting this theme out in front of the jurors right away in voir dire. When you go through each and every harm and loss individually you begin the teaching phase of showing your jurors how to calculate the total harms and losses, something they will have to do in deliberations. When the jurors can see each harm and loss isolated they can attach a value to each harm and loss. They then can add the total harms and losses together to determine a final verdict amount.
I wrote this article primarily for my, Eric Roy, own benefit. I find the subject interesting and thus enjoy reading and writing about it. The concepts above come from legendary trial consultant David Ball. If you are looking for a serious education on the subject then I suggest you purchase one of the many publications by David Ball or Don Keenan. These guys are the top of the food chain in plaintiff’s personal injury trial work. David Ball is a brilliant trial consultant. Don Keenan is one of the best plaintiff’s trial attorneys in the country.