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| Latent Bias and the Public biases regarding litigation for damages are not hard to find in a civil jury pool. The challenge for the lawyers and the judge in voir dire is to unearth bias without asking panelists to prejudge the case or speculate how they would decide. by Brian Wojtalewicz "Do any of you folks have opinions about injury lawsuits? Go ahead, raise your hand if you do." No hands were raised, but a mechanic sitting in the front row of the panel shifted in his seat and his face held a clue. "Sir, how about you?" "Yeah, but I don't know if you really want to know." "Oh, sure I do." "Well then, okay, I think these things are just a rip-off by the lawyers, who take more than 50 percent of the money anyway!" The mechanic did not make it to the jury.1 Jurors are bombarded with negative images of lawyers. I recently received a gift of a desk calendar with a cartoon on the cover depicting a crowd of lawyers hanging on to a speeding ambulance! A Swift County juror, asked by defense counsel for his opinion of accident cases, vehemently criticized insurance companies for taking large premiums and then unfairly fighting claims. Upon admitting that it would affect his decision on an injury case, he was excused from the panel.2 At a trial in Rice County, in response to a question about the so-called "litigation crisis," a panel member responded that personal injury claims "are out of control" and that "plaintiffs never lose."3 Social science research shows other worrisome predispositions in the American public. Researchers found civil jurors harbored suspicion toward plaintiffs, even when they provided an award. Jurors expressed worry about "money-hungry" plaintiffs who, in their view, may be fabricating or exaggerating their claims.4 Other research has shown widespread doubt about plaintiff credibility in civil lawsuits.5 In 1999, 600 people interviewed nationwide were asked whether it was more likely that an insurance company would deny a valid claim or that an individual would bring a fraudulent claim. About a quarter said insurance companies were more likely to deny valid claims, while over half thought that individuals were more likely to bring fraudulent claims. Ninety-two percent of the respondents to the same survey "agreed" or "strongly agreed" that "There are far too many frivolous lawsuits today."6 As far back as 1979, the ABA Journal reported evidence of an effective, multi-million-dollar media campaign by the insurance industry to influence jury awards nationwide.7 One of the primary messages was that high verdicts were driving up insurance premiums.8 Since then, prospective jurors in Stevens, Pope, and other counties have told me that verdicts drive up insurance costs at everybody's expense. A tort "reform" group called Citizens Against Lawsuit Abuse bragged that it had been a resource for more than 250 news stories, including an ABC "Day One" story, "Grief to Greed"; a CBS "48 Hours" segment, "See you in Court"; and an "Oprah Winfrey Show" program, "Has America Gone Lawsuit Crazy?"9 Even George W. Bush, as a candidate and as president has attacked the courts and lawyers: "Too often, our courts aren't serving people, they are serving lawyers ... . Frivolous lawsuits are threatening jobs and delaying access to the courts for those who have legitimate claims."10 Those seeking low negligence verdicts obtained their best publicity for free when an elderly grandmother in New Mexico spilled a cup of hot coffee in her lap in February, 1992. Extremely few Americans know the true facts surrounding Stella Liebach's case against McDonalds, including that she was willing to settle for $20,000; that the jurors, when first hearing of the case, thought it was frivolous and crazy; that she suffered burns requiring skin grafting; or that the judge reduced the $2.7 million punitive damages verdict to $480,000.11 Regardless of the true facts, rare is the voir dire that doesn't have jurors citing the McDonalds case as an example of a frivolous or excessive verdict. No comparable, nationally known case where the plaintiff was the victim of a crazy verdict is ever cited by jurors. What to Do -- and Not Do What does a trial lawyer do in the face of this? You ask open-ended questions to get panelists to discuss their beliefs and opinions, so you can see if those biases are there. Judges get justifiably impatient with lawyers who spend time preaching to the jury, attempting to sell their case in voir dire. The key is to have jurors communicate to you. In preparation, the lawyer must make a list of the biases she fears could kill her case, or be harmful when dealing with a key witness or issue, and then design several open-ended questions to get jurors to come out with "the poison." She will need to judge not only which panelists agree with the poison, but to what degree. Inexperienced lawyers are at times repetitious in voir dire, or waste their time with closed-end, leading questions. "Can you be fair to my client even if he was drinking?" "Will you listen closely to all the evidence before making up your mind?" And the overused: "You can be fair to both sides, can't you?" The rare times that a panelist has answered no nearly always featured someone who used it to escape jury duty. While this last question is generally useless, and can insult some jurors, attorneys are not the only ones to misuse it. One judge interrupted my voir dire with: "Well, you could be fair and impartial, couldn't you?" When the panelist dutifully answered yes to this leading question, the judge sat back with a smug expression and another command: "Let's move on, counsel." This judicial command to the panelist, thinly disguised as an inquiry, did nothing to help the lawyers or the court in their duty to eliminate biased jurors. A variation of this approach has been reversed. A federal trial judge refused to ask probing questions submitted on the issue of racial bias, and merely asked the panel whether they could be fair and unbiased toward the Native American defendant. The 8th Circuit Court of Appeals held that arbitrary limitations on the form and content of questioning by a lawyer are prohibited. The conviction was reversed because that judge's approach realistically allowed no exploration about beliefs and attitudes on race. The court held that a "searching voir dire is a necessary incident to the right to an impartial jury."12 The United States Supreme Court has observed: "The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories, and the process of selecting a jury protracted ... . A denial or impairment of the right to challenge is reversible error without a showing of prejudice."13 The right to adequate voir dire is secured by the United States Constitution, and it includes examination for use of peremptory challenges, and not simply cause.14 Our Minnesota Supreme Court has held: "It is an abuse of discretion for the trial court to frustrate the purposes of voir dire by preventing discovery of bases for challenge or inhibiting a defendant's ability to make an informed exercise of peremptory challenges."15 The same dual purposes were established for civil voir dire decades ago.16 The Jury Task Force Concerns of some judges and lawyers led to the creation of the Minnesota Supreme Court Jury Task Force in March, 2000. Composed of judges, lawyers, administrators and lay people, it provided a final report to the Supreme Court in December, 2001. Advice from judges, trial lawyers, jury consultants, and its study of the law led to its Recommendation 13 on the proper purposes of voir dire:
Part "c." recommended that judges prohibit voir dire designed primarily to persuade or indoctrinate on a party's theory, to predispose to one side, establish rapport, or get the jurors to identify with a party or its cause. Questions are also not to be repetitive, or have jurors speculate or comment on how they would decide a case.17 Although the Supreme Court issued its order without taking a position on the voir dire recommendations, it did order the state court administrator, with the assistance of the Conference of Chief Judges, to provide judicial education programs designed to, inter alia, "insure proper judicial control over the jury selection process including intervening sua sponte where appropriate, conducting basic background in biographical questioning, knowing and understanding proper purposes of voir dire, use of reasonable time limits, and mitigating privacy concerns of jurors; ... ."18 While the Court expressly disclaimed approval of the Task Force comments, the comments include a reference to an unpublished article that contains a very startling position. Despite the Task Force's clear recognition of the importance of learning "prospective jurors' ... relevant opinions, beliefs, prior experiences, and relationships in order to permit the exercise of an informed challenge," 19 the 1997 article, by Judge Gordon Shumaker of the Minnesota Court of Appeals, asserts that questions about a panelist's feelings, attitudes, thoughts about an issue, or opinions on it, are irrelevant.
No authority is cited for this position, and several hypothetical examples illustrate the problem with it. "Sir, do you have an opinion about Hispanic people?" "Yes, I do." "Would that opinion cause you to lean for or against my client, who is obviously Hispanic?" "No." End of inquiry or go a little further? "Well, sir, how do you feel about Hispanic people?" "Well, nothing personal, but I think most of Ôem are lazy and would just as soon ride welfare if they could get away with it, and too many of them do." Would we have some proof of bias on the record? Let's take another example. "Mr. Anderson, do you have an opinion about injury lawsuits in our society?" "Oh yes." "Would that affect your ability to be fair and impartial to both sides in this injury case?" "Oh, yeah, I could be fair to both sides." Has the judicial system fulfilled its task of providing an impartial jury at this point, or do we push on? "Well, Mr. Anderson, what do you think, how do you feel about injury lawsuits?" "You really want my opinion?" "Yes, sir, I do." "Okay, I think most of these lawsuits are just somebody wanting to get something for nothing. I just don't believe people should be getting something when they haven't actually worked for it." I have heard this proof of bias against injury plaintiffs stated just this way from a panel member in my home county in western Minnesota. While the ultimate relevant issue in voir dire is whether a person can be fair to both sides, preconceived beliefs about the type of case, type of person, or an issue are extremely relevant to determine bias. While judges may disagree with lawyers about whether the nature and extent of the belief demonstrates bias, digging out these beliefs and experiences is a crucial duty for the lawyer to make a professional judgment on peremptory challenges. The Jury Task Force aptly observed: "Because many jurors are reluctant to discuss their beliefs and experiences in open court, there is a need for lawyers to encourage disclosure with open-ended questions."21 Probing for Impartiality As the Task Force advised, some references to the law, facts or issues of the case are essential for the lawyer to competently probe for lack of impartiality. For example, where the appropriateness and extent of chiropractic treatment are issues in the case, a competent lawyer will ask panel members for their experience and beliefs about chiropractic treatment and frequency. Probing the panel about attitudes on damages for pain may also be necessary. A recent Hennepin County jury awarded $1,000 for past pain and zero for future pain, but awarded $9,000 for past medical expense and $35,000 for future expense. The defense attorney had even recommended $15,000 for past pain and $27,000 for future!22 Minnesota plaintiff injury lawyers have described other equally shocking verdicts. Apparently, there are a number of people who firmly believe that damages for medical treatment are okay, but can't go along with money for pain. Obviously, a competent plaintiff injury lawyer better be probing the panel about attitudes on damages for pain. Another issue that is appropriate for lawyers to probe is whether panelists have arbitrary, preconceived notions of what damages they would consider excessive, whether $100,000 or $1 million. In Temperley v. Sarrinoton's Adm., 293 S.W. 836 (Ky. 1956), the court held it appropriate to ask whether jurors had problems awarding large verdicts. Such inquiries do not ask the jurors to commit to a certain finding; in fact, the probe appropriately searches for jurors who have improperly already committed to a damage figure before receiving the evidence. Fear of Tainting. Some lawyers or judges would argue that this probing into beliefs and opinions may taint the jury panel, and so should be avoided. However, the lawyer has a choice, and the decision should be easy. Does she want the poison coming out during voir dire, or during jury deliberations? At least during voir dire, the lawyer has an opportunity to do something about it. Also, people who hear a tainted belief for the first time in voir dire don't necessarily adopt it, particularly when it's coming from a stranger. They also receive a message in seeing that juror removed. Questionnaires. Judge Shumaker, jury consultants, and many lawyers recommend use of a written questionnaire. This excellent tool promotes more candid answers from jurors. It can also better protect juror privacy on very sensitive issues, e.g., sexual assault. Significant courtroom time can also be saved, as the lawyers need to pursue only follow-up questions or areas not covered by the questionnaire. Attorney Robert J. King Jr. is one of the growing number of Minnesota trial lawyers who have successfully used a questionnaire. He and defense counsel Kevin Carpenter stipulated to a questionnaire with the Hon. Elizabeth Hayden for a St. Cloud medical negligence trial. The questionnaire responses were replete with concerns about claims against healthcare providers and too much litigation. However, later in voir dire, when Mr. King tried to follow up by asking about these concerns, not a single juror volunteered. They sat like stones and stared at him. Only when he began reminding them of some of their responses in the questionnaire did they begin to talk. Shy or Frightened Persons. This experience demonstrates a common problem for lawyers in voir dire. It's not just residents of Garrison Keillor's Lake Wobegon who are shy people. People are afraid to speak in public settings, particularly in a courtroom. The lawyer must make it clear to the jurors that it is all right for them to express their honest beliefs. Most experienced trial lawyers gain a repertoire of brief opening remarks, or ongoing comments, to encourage jurors to communicate. Among these might be remarks advising the panel that a person may make a good juror for one type of case but not for another, that there are no right or wrong answers, that their true experiences and beliefs are important and will be respected, or that being partial to one side in a case doesn't mean they are a bad person. These types of remarks are quite brief, and don't entail prohibited content. I have seen judges use some of these in voir dire. Amount of Time. Judicial imposition of time limits, such as one hour per lawyer or five minutes per juror, has been held to be reversible error.23 Thus, the Jury Task Force was careful in its Recommendation #14 on time limits: "Time limits during voir dire are authorized by law, but should be used carefully so as to be reasonable in light of the total circumstances." The Task Force advised judges to use limits only after observing "unreasonably time-consuming questioning," and that the judge "should warn attorneys in advance that time limits may be imposed." It further recommended: "If time limits are set, attorneys should be given the opportunity to request additional time with respect to individual jurors if good cause is shown." It warned against judges making "any comments about the timing process in the presence of the jury," and that such limits should not prevent lawyers from achieving "the proper purposes of voir dire and to have a reasonable opportunity to examine each prospective juror."24 Even with the current political climate that unduly restricts the resources of our judicial branch, a judge's arbitrary restriction of voir dire time is unjustified. Where counsel are allowed full opportunity to explore for biases, voir dire will still be completed in the first morning of trial in the vast majority of cases. It can't seriously be argued that the length of civil voir dire is an undue imposition on our court system. There simply aren't enough civil jury trials to warrant the claim. In the court year through July 2003, only 2.3 percent of civil cases were disposed of by jury trial. (This excludes harassment cases, where there is no jury trial.) For personal injury, wrongful death and malpractice case dispositions, only 8 percent were by jury trial.25 For the same court year, civil cases comprised only 16 percent of major cases filed, and 28 percent of those were harassment cases (the fastest growing area). Conclusion
Trial lawyers owe it to their clients to obtain good training on voir dire at trial colleges or seminars. Trial court judges similarly should be careful to avoid unnecessarily impeding efforts of good lawyers to ferret bias. Both the rookie and the trial lawyer with decades of experience recognize voir dire as the most difficult and frightening part of the jury trial. Judges should not make it harder. After all, obtaining the most impartial jury possible is their duty too. Notes 2 Hellie v. Erickson Petroleum, (Minn. Dist. Ct., Swift Co. File C4-89-38, 1990). 3 Anderson-Howie v. Northfield Motors, (Minn. Dist. Ct., Rice Co., File C3-99-697). 4 Valerie P. Hans, Business on Trial: The Civil Jury and Corporate Responsibility. (2000). 5 Id. See also Neal Feigenson, Legal Blame: How Jurors Think and Talk About Accidents. (2000). 6 Hans & Vadino, "Whipped by Whiplash? The Challenges of Jury Communication in Lawsuits Involving Connective Tissue Injury," 67 Tennessee Law Review, Spring 2000, Pgs. 572, 584-5. 7 Loftus, "Insurance Advertising and Jury Awards," 65 ABA Journal 68 (Jan. 1979). 8 Id. 9 "Citizens Against Lawsuit Abuse, Who We Are," www.calahuston.org/Who (visited April 10, 2000). 10 Scott S. Greenberger, "Bush Aims at Federal Tort Reform," Austin AM-Statesman, Feb. 10, 2000, at A7. 11 See www.atla.org/cgfacts/other/mcd.pdf for true facts about the McDonald's coffee case. The Association of Trial Lawyers of America investigates a variety of false lawsuit stories that have been disseminated (see www.atla.org/homepage/debunk.aspx). The website www.snopes.com, unrelated to atla or the insurance industry, is dedicated to investigating and reporting urban and Internet myths. 12 United States v. Bear Runner, 502 F.2d 908, 911 (8th Cir. 1974) 13 Swain v. Alabama, 380 U.S. 202, 218-19, 85 S.Ct. 824, 834-35, 13 L.Ed. 2d 759 (1965). 14 Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222-2226-27 (1992). 15 State v. Greer, C9-99-1550, __ N.W.2d __ (Minn. 2001) (J. Page). 16 Heydman v. Red Wing Brick Co., 112 Minn. 158, 163, 127 N.W. 561, 562 (1910). 17 Minnesota Supreme Court Jury Task Force, Final Report, 12-20-01, Recommendation 13. 18 Id. at pp. 21-24, 26-27: Rec. #10, 11, 13, 14, 19. Cited in Supreme Court Order C7-00-100, Para. 8i.i. 19 Minnesota Supreme Court Jury Task Force, Final Report, 12-20-01, Recommendation #13b. 20 Id., Comment to Recommendation 13. 21 Id., Comment to Recommendation #13b. 22 Belten v. ACI Asphalt, et al., (Minn. Dist. Ct., Hennepin Co., File _______. (2003). 23 State v. Evans, 352 N.W.2d 824, 826-27 (Minn. App. 1984) and State v. Petersen, 368 N.W.2d 320, 322 (Minn. App. 1985). 24 Minnesota Jury Task Force Final Report, Recommendation #14. 25 Minnesota State Court Administrator, Research & Evaluation Unit. BRIAN E. WOJTALEWICZ is a trial lawyer and sole practitioner in Appleton, Minnesota. He is certified as a civil trial specialist by the Minnesota State Bar Association and the NBTA. |
