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.