After decades of the national Chamber of Commerce, big business and insurance industry propaganda against tort litigation and plaintiffs’ trial attorneys, many jurors have been tainted to one extent or another with anti-tort bias.
The challenge is that the person who has the bias may deny having such a bias, underestimate the degree of the latent bias, or believe he or she can intellectually isolate any such bias and be fair.
When representing a plaintiff with issues that will likely trigger inherent bias, the question becomes how to deal with it in jury selection.
Looking for assurances from jurors, through closed-ended questioning, that they can be fair regarding bias is a waste of valuable voir dire time. Many people don’t think they have a bias, at least on a subconscious level.
For the same reason, it also is a waste of time to plan on establishing the bias of prospective jurors and challenging them for cause to legally excuse them from serving. In addition, judges are often reluctant to sustain the challenge and instead step in to rehabilitate the juror.
I believe the only realistic way to deal with this kind of inherent bias is a several step process:
Acknowledge the existence of the bias in yourself when the case was first offered to you. By admitting to the bias, you thereby become part of the group of others in the jury pool who feel the same way. Have a non-judgmental discussion about the issue to demonstrate your willingness to have a free dialogue and at the same time to identify those who feel that way.
Using suggestions of extreme positions, stimulate a discussion about how bias should be dealt with at trial. That encourages the jurors who simply can’t overcome their negative attitudes to be honest about it and excuse themselves.
Using a plaintiff injured in a car-motorcycle collision as an example, I would begin, before asking any juror about the subject, by acknowledging that as the lawyer for the injured motorcycle driver, that I am embarrassed to admit my reluctance, when the case was first offered, to accept representation because of having a negative attitude toward people who ride motorcycles.
“As an auto driver, I think riding motorcycles is a risky activity,” I would say. “Over the time I have represented my client, however, I gained an appreciation for his love of motorcycles and grew to admire this fine person. But, since I had this initial reaction to a motorcycle injury case, I wonder if others have the same initial reaction.”
I would ask for the hands of those jurors who are willing to share the same feelings. It is critical to wait for their hands to go up. Be willing to say nothing, keep eye contact, and do not move until potential jurors’ hands begin going up.
I would thank them for having the courage to raise their hands. Then, have an open discussion about why “we” feel this way. Note that it is not “I” and “you.” It is “we” because you are a member of this group.
I wouldn’t argue with jurors no matter how extreme their position on the subject. I would not attempt to educate them, suggest other views, or look angry or shocked. Instead, I would nod my head to show that I understand and hear them.
Finally, I would conduct a discussion about how the potential jurors think the issue should be dealt with at trial. The discussion is what to do about all of “us” feeling this way, and yet for the injured motorcyclist to have a right to a jury trial.
For example, starting with questions like these: “What should we do about this? Do we just make a rule that motorcycle injuries due to negligence of others aren’t entitled to a trial? What suggestions do you have about this since we are going to take an oath to do full justice if we are selected to be on the jury.”
That leads to a discussion in which jurors acknowledge the plaintiff’s right to a fair jury trial and public assurances by jurors that they can be fair.
This approach has always been comfortable for me in jury selection because I deal with the truth in open discussion and without trying to change minds, educate or make jury arguments.