Bar News - August 16, 2017
Workers’ Compensation and Personal Injury Law: Win as You Begin: Voir Dire in Personal Injury Cases
By: Kirk Charles Simoneau
Entire books have been written on lawyer-conducted voir dire. Lengthy legal education seminars have been devoted to it. Some believe you can win, or lose, a trial in those few opening minutes with your jury pool, and even trial lawyers who disagree with that still know that voir dire is important.
This article is based, in part, on personal trial experience, instruction by veteran litigators, and feedback from jury representatives and peers. It is also based on an exchange I had with a world renowned expert on troubled teenage girls.
Don’t see the connection? Well, one of the fundamental goals of voir dire is to explore and expose juror bias, and that is done, not by talking to the jury, but by getting them to talk to you and each other. Dr. Blaise Aguirre is an expert at getting troubled, mentally ill, teenage girls to talk. He runs a program for such young women, many very depressed and suicidal, at McLean Hospital in Belmont, Massachusetts, and I’ve watched him in action. He can get the most recalcitrant teen to open up fairly quickly.
Aguirre explains that he gets kids to talk by giving them something unexpected. Many of the kids have met with doctor after doctor, all giving some variation of the same speech. Many have been in treatment after treatment, all very much the same. It’s all stupid, say the kids. Aguirre, often, as an initial move, agrees. He agrees these doctors and programs are stupid. This throws the kids off; they don’t expect it. Maybe, they think, this guy is different. In any event, they realize, subconsciously perhaps, that they don’t know what’s going to happen next; they need to pay attention. That gets them listening and, in time, talking.
Don’t Be That Lawyer
Everyone has an idea of what lawyers are like. People think they know how we talk (big, fancy words), how we look (big, fancy suits) and how we act (big, obnoxious jerks). So, if you behave, or talk, or look like what they expect, the jury will be affected by a confirmation bias. They will see you as just another lawyer. Another stupid speech, another stupid treatment. They know your act and will tune you out. Don’t confirm the bias.
Most trial lawyers have seen or perhaps even have conducted the kind of voir dire that starts with a lawyer talking in very lawyerly fashion, lecturing the jury about the law. He or she does this right away, using legal language and explaining all sorts of legal concepts. Potential jurors might be impressed by this knowledge, but chances are they don’t understand all of it. Eventually, the lawyer asks the jury some group question, looking for a show of hands. Often the phrase “tort reform” or something similar is used. A few hands go, uncomfortably, up. Next question.
A more effective approach is to start by giving the potential jurors something to think about so they will pay attention. Let the other guy be the stereotype they are subconsciously programed to ignore. Ask the jurors, by name, what they really think about issues in your case. The late Dave Nixon, my mentor and former partner, was a master at using names to personalize questions.
Once a potential juror has spoken about his or her ideas, use that person’s words to form the question to the next juror, which will help to spark a conversation. Attorneys are in a position of authority in the courtroom, so when an attorney uses the thoughts and words of the potential juror in his or her presentation, it makes the potential juror feel smart and the attorney seem more likable. It also is a good idea to say “thank you,” after a potential juror offers his or her thoughts, whether you agree with them or not.
Choosing a Jury in a
Personal Injury Case
So, what, specifically, do you want potential jurors to think about and discuss? An attorney’s questions during voir dire should explore the biases that, generally, surround trials and lawyers, as well as those inherent biases specific to the case.
In plaintiff’s personal injury work, there is a pervasive bias against lawsuits. Headlines, read and heard, over decades have introduced juries to “frivolous” lawsuits. One way to explore this issue is with a simple question such as, “What would I need to do to prove to you that Mrs. Smith’s case, the reason we are all here, isn’t frivolous?” Ask what types of evidence they want, and then mention some from your case. “Oh, injuries, yes, you’d want to know whether Mrs. Smith had ‘real’ injuries?”
Here’s a distinction between good voir dire and bad: Asking what that juror, and others, consider “real” injuries and then describing your client’s injuries is good. Here’s an example of what an attorney might say: “Okay, so you say broken bones are ‘real’ injuries. And you, Mrs. Jones, said that scars are ‘real.’ Well, what if I told you that Mrs. Smith has a six-inch scar from surgery on her broken leg?”
Doing this in reverse order is bad, as in: “Oh, we’ve got ‘real’ injuries here. Mrs. Smith broke her femur.”
The first approach allows potential jurors to explain their thought processes to you and to the court. The second can come across like you are trying to change their thought processes. Persuasion isn’t getting people to change the way they think; it’s using the way they think to get them to reach your desired conclusion.
Through exploration of biases related to lawyers and trials, an attorney can also accomplish the second goal of voir dire: to establish himself or herself as the proverbial “good guy.” I want the jury to see me as teller of the truth, not, necessarily, for them to like me, but for them to believe, even if they don’t like me, that I am not another lying lawyer.
As for the biases inherent to the case, many lawyers try to avoid issues or subjects that might be problematic to their version of the case during voir dire, but doing so can mean missing an important opportunity to work through, with the jury, the right way to look at problems in a trial – through the evidence, not through the lens of bias. Asking questions such as, “So, how do we deal with the fact that Mr. Smith says Mrs. Jones was also drinking a little too much that night?” helps potential jurors shape the logic they will apply later in the trial.
As every case is different, examples of inherent case bias are difficult to place in an article, but here are a few more tips for conducting effective voir dire in personal injury cases:
- Don’t try to be funny. Either you are funny, or you aren’t funny. Those who are funny don’t have to try; those who aren’t funny shouldn’t try.
- Don’t be afraid of silence. Tell the jury you aren’t afraid of it. Stand, quiet, for uncomfortable periods of time after asking a question. Eventually, someone will say something.
- Try to find a way to come across not as the best lawyer, but as your best self. Try to come across as a person. That will surprise the jury and start the conversation flowing.
Kirk Simoneau is a plaintiff’s trial lawyer and the Managing Partner of Nixon, Vogelman, Barry, Slawsky & Simoneau. Kirk focuses on high damage personal injury cases and loves going to trial.