Tuesday, October 4, 2011

Asking questions about pain and suffering and mental anguish during voir dire.

I was recently giving a speech on jury selection and at the end asked the audience if anyone had any questions. One of the best judges that I have ever had the pleasure of appearing before raised his hand and said "would you please tell this audience how to properly ask a question on pain and suffering, and mental anguish?" The reason he wanted this question answered in front of this group of trial lawyers was not because he didn't know the answer. It was because he is frustrated with lawyers getting upset with him because he will not grant strikes for cause when they have not properly established a strike for cause. Here are some ways that lawyers ineffectively ask about pain and suffering and are then shocked that a judge does not grant their strike for cause:

Plaintiff's Lawyer: How do you feel about pain and suffering damages?
Juror: I don't like them.

Plaintiff's Lawyer: Do you have a problem with intangible damages such as pain and suffering and mental anguish?
Juror: Yes.

Plaintiff's Lawyer: Am I starting out behind with you on the issue of pain and suffering and mental anguish? 
Juror: Yes. 

Plaintiff's Lawyer: Do you have a bias against pain and suffering or mental anguish damages? 
Juror: Yes. 

Plaintiff's Lawyer: Would you have difficulty awarding intangible damages, such as: pain and suffering and mental anguish? 
Juror: Yes. 

While all of these questions could yield interesting information for exercising your preemptory strikes. Under current law, i.e. Cortez and Hyundai, these do not establish a strike for cause. 

The most effective way to obtain a strike for cause on the issue of intangible damages is as follows

Plaintiff's Lawyer:  People have strong feelings about personal injury lawsuits. There are some people who, if they were on a jury, would be able to give money for lost wages, medical bills, pain and suffering, and mental anguish, and in some cases even punitive damages. There are other people who, if they were on a jury, might be able to give money for lost wages and medical bills, but they simply couldn’t give money for something intangible like pain and suffering or mental anguish.  Which of these best describe you?

Juror: I am in that second group. I could not award intangible damages.  

Plaintiff's Lawyer: Tell me about that.

Juror: I am sick and tired of all these frivolous lawsuits, like the McDonalds case where people get all this money for nothing. 

Plaintiff's Lawyer: So is it fair to say that regardless of the law or the facts or the judge’s instructions, you just couldn’t give money for something intangible like pain and suffering, is that fair to say?

Juror: Yes, that is fair to say. 

Plaintiff's Lawyer: Is there anyone else who agrees with this juror about pain and suffering?  You might be able to give money for lost wages and medical bills, but you just couldn’t follow a judge’s instruction, instructing you to give money for pain and suffering.  Can you raise your hands?

Plaintiff's lawyer: Juror number 3, Tell me more about that. 

Juror #3: I agree with that other juror, I mean you just can't quantify things like pain and suffering and mental anguish. I hurt every day and don't ask for any money for it. 

Plaintiff's Lawyer: So is it fair to say that you agree with this other juror, that you just couldn’t give money for something intangible like pain and suffering?  You might be able to give money for reasonable medical bills and lost wages, but you couldn’t award money for something intangible like pain and suffering, regardless of what the law and the facts were, is that fair to say? 

Juror #3: Yes that is fair to say. 

There are two things that are important about this question. First, it is written so that it is easy to get a yes. The potential jurors are given permission to express their prejudice against pain and suffering and mental anguish, while acknowledging that they could still give other damages for things like lost wages, and medical bills. The second thing that is important about this question is that the answer has legal significance. A yes to this question means that they can not follow the law and therefor cannot serve on the jury. All of the previous examples may get someone close to being struck for cause but does not disqualify them from participating as a juror. In executing this question it is important to call on someone who you believe, based on their juror card, is someone who would be a bad juror for the plaintiff. If you guessed wrong and the person that you called on says that they have no problem awarding money for intangible damages and they themselves have suffered at the hands of a cold and heartless insurance company, the very next question out of your mouth needs to be: 

Plaintiff's Lawyer: Who has a different opinion than this juror? 

This question gets you back on track in your pursuit to get rid of people who are bad for you, while hiding people who are good for you. This question is typically good for ten to fifteen strikes for cause all by itself. 

***For my next blog I will talk about the Colorado method of voir dire in death penalty cases and its relevance to civil cases. 

Monday, September 19, 2011

Power Point Presentations and Lawyers

I first learned about powerpoint from my wife who is an engineer. She would go to conferences and one engineer after another would stand at a podium and present powerpoint slides on highly technical subjects related to her field, which is solar energy. My first reaction was sincerely wondering how the entire audience didn't die of boredom. We lawyers did not use powerpoint presentations at that time. That is not to say that every time a lawyer spoke that the audience was riveted and on the edge of their seats, but there was a sense that you had a human being speaking to a group of human beings.

Some time after my initial exposure to powerpoint, I had occasion to work with some lawyers who wanted to use a powerpoint presentation in their opening statement and in closing. They had approximately 15 slides with 10 bullet points to each slide. These were brilliant lawyers, trying a highly complex case. Through much effort I convinced them to cut it down to 5 slides, with only 5 bullet points each, and to have a significant portion of the argument in which there was nothing on the screen at all.

My next encounter with powerpoint software was much more positive. A young lawyer was using powerpoint to present a timeline that had been professionally developed. It was one of the most effective opening statements I had seen. The visual presentation was an illustration of what she was saying, as opposed to a transcription of her speech. She maintained her connection with her audience while providing a visual way for the jury to organize the information that they were being given. Unfortunately I think that this is the exception rather than the rule when it comes to using powerpoint or similar technologies. The phrase "less is more" could not be more apt than in this context.

There are some lawyers who are now using powerpoint as a part of voir dire. I believe that there are serious pitfalls to this practice. The first being that a unique opportunity to build relationships with the jury is squandered. If a group of people are simply being asked to raise a card while staring at a screen, there is little or no connection between the lawyer and the potential jurors. Lawyers are always wanting to know how to build a rapport with jurors. As with any other relationship the best way to build a rapport is to listen to the person that you wish to build a relationship with. The second problem is that you end up placing quantity over quality when it comes to information. If a potential juror is simply asked, do you agree or disagree with a statement that is flashed on a screen, the lawyer obtains no information as to what is behind that opinion. I have often times had venire persons who would be excellent plaintiffs jurors on a case, raise their hands saying they could not give money for pain and suffering and mental anguish. When the follow up question, "tell me about that" was asked, we found out that they really didn't have any serious problems with those types of damages.

There was a study that was done that asked people "do you agree with the statement that communism is a failed and evil system?" and then asked them, do you agree with the statement, "from each according to their ability, to each according to their need?" People agreed with both statements, even though they were in direct contradiction to each other.  They did so because both statements sounded good. In order to do an effective job at voir dire you have to find out what is actually going on in the minds of the individuals who are raising their cards. A third problem with reliance on powerpoint in voir dire is that you are not provided with any tools to hold onto jurors during the rehabilitation process. The Strike For Cause method of jury selection always includes questions which allow the jurors to say in their own words, how they feel about the particular issues. This makes it more difficult for the other side to rehabilitate a bad juror because instead of saying to them, "you raised your card on these questions," you can repeat back to them their own words, and thereby hold them to their original position. A final pitfall of using a powerpoint or other visual method is that it exposes the good jurors for your side to the lawyers at the opposite counsel table. Any decent lawyer will be able to figure out whether a one or a five, on a scale of one-to-five, is good or bad for them. By doing a wholesale survey of the panel you end up doing the other side's work for them.

The Strike For Cause method is targeted toward exposing the jurors who are bad for you, while keeping the jurors who are good for you silent. You can only engage in this qualitative subtlety by engaging in a dialogue that responds in a flexible way to the information that an individual juror is giving you.

So the question is, why would a lawyer use a powerpoint presentation instead of engaging in a dialogue with the venire persons? I think part of the answer lies with the reason that my wife's friends "the engineers" were early adopters of this technology. The visual presentation allows a lawyer to skip the uncomfortable job of actually being present with other people. Talking to and listening to a group of strangers is one of the most difficult tasks that any human being faces. We have all heard the statement that the number one fear in America is public speaking, it even beats snakes and death. How much scarier is it to talk with a group of people with an expectation that they will talk back to you? With the use of powerpoint presentations you simply have to point to the screen and read the question and take notes without having to have any real interaction with a potential juror.

Another reason that someone might want to use the powerpoint presentation is that it is easier than developing the skill set required to do an effective voir dire. Not only does one have to deliver a question properly, you have to then more importantly, listen to the answer. After listening to the answer you have to ask the appropriate follow up question. This is the most difficult skill set for a lawyer to develop because it requires practice. While most lawyers don't have many opportunities to conduct voir dires, they do have opportunities to listen to other people. If you can repeat back to someone the exact words that they have spoken, then you are on the right track. The next level is to be able to read someone's emotional state and tell if there is something that is not being said, but is present in the room. Although these are difficult skills to develop, talking to and listening to a group of strangers is one of the most rewarding tasks that any human being faces.

The following link describes an excellent exercise for developing listening capacities: Copy and paste it into your browser.


Friday, September 9, 2011

New paradigms for lawyers

When I was growing up and wanting to be a lawyer, then in law school, and later in practice, I would look to older and more experienced lawyers for advice. Some of the advice was consistent, some of it contradictory, but mostly it was a hodgepodge of tips that had been passed down from time immemorial. Very rarely do we as lawyers look to the underlying belief systems that these tips or common wisdom spring from. In this blog I want to begin by addressing some of the basic structures that we as lawyers operate out of, without being aware that we are doing so. One of my favorite quotes is from John Maynard Keyens who said that, "Those who say they do not believe in economics are but a slave to some long defunct economist." I think a corollary to that statement is that those who do not believe in philosophy are but a slave to some long defunct philosopher.

The first belief system I would like to address is that people make decisions based on reason and evidence. This is a bedrock belief that we lawyers are slaves to, even if we consider ourselves sophisticated post-modernists. I am reading a book called The Believing Brain, by Michael Shermer. He articulates how people create models of the world and then force the facts to fit their predetermined beliefs. Instead of starting out with a blank slate and then trying to find out what the answer is by amassing facts, then logically following the facts to find the answer, his premise is that people for the most part begin with the answer and then work backwards to justify their already existing beliefs. This has huge implications for all aspects of a trial lawyer's practice. The most obvious one is voir dire in which the goal now becomes getting rid of people who have beliefs which are inconsistent with a win for your side as opposed to trying to logically persuade a group of people to go your way. In witness preparation you can now see where your client is coming from instead of being frustrated that they are not being "logical." Having a facility with how human beings form beliefs, and then how those beliefs in turn form their actions, allows you to get to the core of the issue, instead of engaging in a frustrating argument with your client.

I will continue this exploration in future blogs.