January 19, 2010

Make Sure Jurors Tell You How Bad Your Client Is

“I think corporations have way too much power and they squash the little guy.”

Last week in a federal district courtroom in northwestern United States, Juror #4 shared some of the most transparent and scathing opinions of American corporations ever to bounce off a courtroom wall. Just as his cutting remarks were starting to gain steam, the judge cut him off mid-sentence and promptly dismissed him from the courtroom for cause. Jurors’ anti-corporate bias is nothing new. And it is no real surprise to encounter a juror who believes in corporate deception and conspiracy – after all, “Corporations are what’s wrong with this county.” The twist in this civil jury trial came from a slightly different place. The court heard Juror #4’s comments no sooner than the Defendant’s brief oral voir dire, and if not for defense counsel’s targeted voir dire question, would never have heard it at all.

The lesson is clear…

by: Dr. Kevin Boully

 

I think corporations have way too much power and they squash the little guy. 

 

Boully_Kevin_88_120 Last week in a federal district courtroom in northwestern United States, Juror #4 shared some of the most transparent and scathing opinions of American corporations ever to bounce off a courtroom wall.  Just as his cutting remarks were starting to gain steam, the judge cut him off mid-sentence and promptly dismissed him from the courtroom for cause.  Jurors’ anti-corporate bias is nothing new.  And it is no real surprise to encounter a juror who believes in corporate deception and conspiracy – after all, “Corporations are what’s wrong with this county.”  The twist in this civil jury trial came from a slightly different place.  The court heard Juror #4’s comments no sooner than the Defendant’s brief oral voir dire, and if not for defense counsel’s targeted voir dire question, would never have heard it at all.

 

The lesson is clear.  Once you’ve identified the highest risk attitudes and opinions for your case, do not refuse to ask jurors bluntly and openly about them for fear an honest response will poison your panel.  Ask the question.  Make sure jurors tell you the answer.  You need to know how bad it is. 


 

Mark Bennett's blog is a great resource for criminal defense attorneys, but his useful and entertaining article in this month’s issue of The Jury Expert includes 16 rules for jury selection, and one in particular that goes to the heart of this matter.  Bennett calls it “The Shrek Rule” of jury selection and Juror #4 aptly illustrates the reason for the rule.  According to Bennett, the rule maintains negative information about your case is better known than unknown – or “better out than in” as Shrek says shortly after heaving a good burp. 

 

While there were some subtle hints that Juror #4 may have been an anti-corporate juror, he never revealed any overt bias in the course of a thorough judicial voir dire that included specific questions about corporations as well as potential bias that might affect jurors’ decisions more generally.  He never said a peep in plaintiff’s voir dire, even though it offered at least one open opportunity to reveal his biases. 

 

And when the defense attorney stood up, and asked if there was any reason, any reason at all, that any juror might be biased or prejudiced against him or his client?  Juror #4:  No answer.  It was only after defense counsel asked a scripted question to elicit anti-corporate bias that Juror #4 finally came forth.  And this question was nearly passed over because of the good chance the probe had probably already been covered by the judge. 

 

If defense counsel never asked the question, we never would have gotten to hear the Judge sharply interrupt, “Juror #4, thank you for your honesty but why didn’t you say that when I asked you about it? 

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