questions such as, “will you be willing to turn the plaintiff away without any money at all if she can’t meet her burden of proof, if she cannot prove her case?” Defense counsel might ask the panel whether any of them believe that the case must have merit because it has gotten that far along in the process. Surprisingly, some jurors will say that they do believe there must be a case because they are there. This is the opportunity for defense counsel to remind them that anyone can file a case, and that just as the plaintiff has the right to come to court because he believes he has been wronged, a defendant has the right to come to court and defend himself against claims he feels do not have merit. Choose essential questions. While it
might be nice to know what magazines and books the juror reads, or what their favorite TV shows are, are the answers to those questions where you are going to get the most bang for your two minute per juror buck? Probably not. As a defense attorney, I like to
include some variation of questions regarding the jury’s understanding of the importance of keeping an open mind throughout the case. Since the plaintiff
goes first, starting with jury selection and continuing with the opening statements, the introduction of evidence and final arguments, this is a good time for the defense to remind the jury about who has the burden of proof – the plaintiff. While we know from jury research that jurors are probably incapable of truly keeping an open mind throughout the case and do make their judgments as early as jury selection and opening statements, it’s still important to remind them that there are two sides to every story. Try to stay away from words like
“bias” and “prejudice”; be more subtle. While one of the primary goals of the jury selection process is to uncover juror biases, no juror will admit to being preju- diced and will be offended at the sugges- tion. Most jurors believe they are nothing but fair and just. Asking questions such as “Is there an even playing field?” or “Are you already leaning a certain way?” or “If we were running a race, is my client already a little behind, given how you feel?” is a better way of getting to the issue of bias. Jurors should be reminded that there are other cases being tried in the courtroom, and if this is just not the case that is right for them, because of
similar life experiences, it doesn’t mean they are not a fair person. They are just not right for this case. A juror will be more likely to admit to a bias if they are not attacked directly on their predisposi- tions.
Start “arguing” the merits of the
case from the beginning. Not by actually arguing the case; that will elicit an objec- tion that will be sustained by the court. Start by highlighting your strongest evi- dence in question selection and by point- ing out the weaknesses of the other side’s case.
Asking questions that are too subtle
or too parallel to the facts of the case could confuse the jury by leading them to believe that the case is about something it’s not. It can be a fine line. For example, if one of the defenses in a medical- malpractice case is that the plaintiff did- n’t follow her doctor’s instructions and therefore contributed to the delayed diagnosis alleged, defense counsel might just ask a juror, “Do you believe that it’s important for a patient to follow her doc- tor’s advice?” Of course, defense counsel will want jurors who do believe in going to doctors and following their advice, rather than jurors who question advice.
FEBRUARY 2012 The Advocate Magazine — 69
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