Selection — continued from Previous Page
and cause you to be admonished by the judge at the outset. I suggest having an outline of the
questions and areas of inquiry that you want to cover in voir dire. You might want to actually write out any question that you want to ask the panel that is sen- sitive, or is factual enough that it could be viewed as pre-conditioning or argu- ment. A nervous lawyer can blurt out a question that is phrased in a way that can inadvertently offend the jurors, or raise objections from the court or opposing counsel. It is very important to remember
that you can only be effective in jury selection if you look at the jurors when you speak to them, which will be difficult if you are tied to your notes. Many of the questions you will ask a prospective juror cannot be written down in advance because the questioning will be based on the answers you get. One advantage to the defense attorney is that he or she will be asking follow-up questions to answers given to the court and plaintiff ’s counsel. The defense therefore will have the opportunity to be more direct in its ques- tions. So use your notes as a guide, not a script.
Speak English in a way that the
jurors can understand. It is just as easy to use the word “after” instead of “subse- quently.” It is essential that jurors are asked
during voir dire if they routinely use the Internet, search engines like Google, and what sources to the Internet they have, i.e. their cell phone, Blackberry, iPhone, or iPad. Find out if they are on Facebook, Twitter, or if they blog. Not only must jurors refrain from discussing the case with anyone during the trial, they cannot discuss the case on any social networking site either. They are not permitted to go home and Google a medical term or pro- cedure, or conduct Internet research. Google Earth is well known to many prospective jurors, so they not only have to be admonished not to visit the scene of the accident, but must be told that it is not permissible to check out the traffic intersection where the scene occurred on the Internet. Plaintiffs’ lawyers will ask the ques-
tions that relate to jurors’ attitudes toward too many lawsuits, and how jurors feel about big verdicts. As a defense lawyer, I love it when my opposing counsel not only brings up the infamous
McDonald’s case in which a woman was awarded millions for spilling hot coffee on herself but also attempts to defend that verdict to the jury. Most jurors will cite their knowledge of that case as an example of the system not working and are actually offended that the plaintiff attorney’s attempts to justify the verdict. The answers that the jurors give to ques- tions about “too high” verdicts, elicited by plaintiff ’s counsel, will probably give the defense attorney enough information about the jurors’ attitudes toward the tort system that he or she will not have to venture into additional questioning on that subject. The general rule is that the more
negative jurors are toward lawyers, the more likely they are defense oriented. Jurors who don’t like lawyers are usually more skeptical about the merits of the case and are more likely to view the plaintiff ’s attorney as an “ambulance chaser.” The more compassionate and accepting the juror is of large verdicts, the more plaintiff-oriented that juror is likely to be. Some counter questions to the “big
verdict, too many lawsuits” questions that the plaintiff ’s attorney will ask are
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jpugh@epssg.com 68 — The Advocate Magazine FEBRUARY 2012 Jane Riley-Pugh
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