Raymond Paul Johnson Publications - Civil Litigators - Los Angeles, CA

Raymond Paul Johnson
2121 Rosecrans Avenue, Suite 3400
South Bay Los Angeles
Manhattan Beach, CA 90245

Presented at

Western Trial Lawyers Association Conference
Maui, Hawaii
June 11-15, 2007

I. INTRODUCTION

For me, it happened suddenly, without warning. I was traveling by car in Southern Texas to start a tire defect trial. As I rounded the curve, the billboard glared like an IMAX screen: “Tort Reform/Before Trial Lawyers Ruin America.”

It was the 1980s, and my first face-to-face encounter with “Citizens Against Lawsuit Abuse,” a group that still exists today in one form or another. It also launched more than 25 years of poisoning America against lawsuits and the judicial system.

To paraphrase John Kennedy: “The enemy is not ‘The Lie’, the enemy is ‘The Myth’.” Today, as trial lawyers, we have no choice but to deal with this myth about “Lawsuit Abuse,” as well as the other prejudices that permeate jury selection. This topic is not pleasant, but it is real. Hopefully, the comments below will help you develop strategies to ensure your clients receive – impartial trials before unbiased jurors – their constitutional right.

II. IDENTIFYING AND ELIMINATING “TORT REFORMERS”

The most troubling aspects about jury selection arise from public misconception. False perceptions ooze from such myths as plaintiffs bring phony claims; lawyers are greedy; juries go haywire; defendants are the true victims; and the public always ends up paying in higher price, higher insurance premiums or higher taxes. Every case can be marred by biases.

In fact, every candidate juror presents the potential danger of relying on stereotypes, false ideas or media propaganda. Remember for instance that most prospective jurors have never been exposed to a real trial, and most have never known lawyers personally. These obstacles can be overcome in three (3) ways: (1) education – clearly and simply communicate the facts and merits of your particular case to the prospective jurors, and highlight the fallacies of any myths that could damage your case; (2) association – reach out and touch the potential jurors (figuratively) through your credibility, sincerity and use of language; and (3) dissociation – differentiate your case and clients from the stereotypical models.

For over twenty-five (25) years, a massive public relations campaign has been conducted by insurance companies, manufacturers, marketers, and others to persuade the public (and too many legislators) that the tort system is somehow bad for the country, bad for the economy, and in general out-of-control. In selecting your jury, address these perceptions. The underlying facts are not real, but the perceptions are real – and must be dealt with persuasively.

Your client is entitled to impartial jurors who are unbiased, unprejudiced and unbigoted, objective but not detached or disinterested, neutral and without favoritism, and even-handed and fair-minded. Your objective must be to overcome juror biases with your one best opportunity: voir dire.^[1]

Fortunes have been spent trying to persuade the press and public that a “litigation crisis” exists, that juries are out-of-control, and that “frivolous lawsuits” and excessive verdicts have raised insurance premiums, eliminated jobs and jeopardized the economy. Voir dire gives you an opportunity to straighten out at least some of this misinformation, and awaken the jury’s sense of fair play. To do this, you must get the jurors to recognize their pre-existing biases, and approach your particular case fairly.

Your opponent will undoubtedly exploit the “litigation crisis.” For example, one of the most prevalent social beliefs today is that people refuse to “accept responsibility for their own actions.” Focus groups have indicated that jurors are reluctant to find liability in a product liability case, for example, based on the rollover propensity of a sports utility vehicle, if the plaintiff failed to use his or her seatbelt. Turn this around in voir dire. Get the jury to agree that corporations also must be held “accountable” – especially for product defects.

A related theme, that you need be ready for, is that people abuse the civil justice system by seeking large awards for trivial claims. Defense lawyers sometimes argue that plaintiffs are just looking for someone to sue. One counter-strategy is to use jury questionnaires that allow “tort reformers” to be eliminated without unduly contaminating the rest of the jury pool.

This approach alone however underestimates the present degree of contamination. There is just no such thing today as an uninfected panel. Even after the adamant tort reformers have been identified and excused, anti-plaintiff attitudes will remain in the jury box. The best approach is to discuss these attitudes up front, during voir dire, when you and the prospective jurors can interact.

But accept the fact that you will not change every juror’s mind completely about the “litigation crisis.” No matter how articulate, you will never convince every juror for example that there is nothing wrong with the “McDonald’s hot coffee” verdict. That media hype resonates still, after many decades. You could try to point out the permanent, severe injuries in that case, and McDonald’s alleged history of ignoring customer complaints. But the best approach probably is to convince jurors that your case is different, encouraging them to commit themselves to apply the law fairly to the facts in your particular case, and not be swayed by outside matters.

During voir dire, try to get the jury panel to vent any anger about lawsuits they feel are frivolous. Do not argue with them. It is important to get the view on the table to make your points that not all lawsuits are frivolous, nor all injuries trivial. In this way, you can condition the jury pool to tackle the problem of providing fairness for your specific clients in your particular case, regardless of their pre-existing attitudes.

III. RACIAL, ECONOMIC AND OTHER BIASES

A. Racism

It is sad to say that racial bias still exists in twenty-first century America, but it does. As trial lawyers, we cannot ignore that. Take it on during voir dire. The right to unbiased and unprejudiced jurors is an “inseparable and inalienable” part of the right to trial by jury. People v. Hughes (1961) 57 Cal.2d 89, 95.

This constitutional guarantee is the right to twelve (12) impartial jurors. Smith v. Covell (1980) 100 Cal.App.3d 947, 955. The California Supreme Court has emphasized that: “[C]ivil litigants, like criminal defendants, have a constitutionally protected right to complete consideration of their case by an impartial panel of jurors.” Hasson v. Ford Motor Company (1982) 30 Cal.3d 388, 416. Of course, racial bias toward a party is both juror misconduct and grounds for reversal. See e.g. Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110.^[2] Racist statements have been described by California courts as “the most destructive misconduct.” Tapia v. Barker (1984) 160 Cal.App.3d 761, 766.^[3]

But the idea is not to wait until “appeal” to address racial bias. Bring it up in voir dire. Watch the eyes and body language of the prospective jurors. If you sense racial bias, eliminate it at the beginning with challenges for cause, or need be your peremptory challenges.

B. Economic Class Bias

Penniless, poor, lower middle class, upper middle class, rich, filthy right – class bias is real, and unfortunately often linked to racism. Focus groups have shown however that sometimes members of the same racial minority group harbor the deepest class biases, and are quicker to articulate it in the jury room than others. It emanates from a feeling: “I made it, through work and sweat, why shouldn’t he (or she).” And often it can result in defense verdicts, or unfairly small plaintiff verdicts.

With prevailing conservative attitudes, this feeling often replaces the sentiment: “But for the grace of God, there go I.” The result is that trial lawyers should, whenever appropriate, address “economic class biases” during voir dire. And the easiest way to do that is head on.

C. Prejudices Against Foreign Languages and Accents

Again this can be linked in many cases to racial biases. But current controversies over immigration rights, border lock downs and the like make it essential that you address this issue in voir dire if your client or a key witness must testify through an interpreter.

In most cases, if your witness can do without a translator that is probably the best course. If a translator is required however use your time during voir dire to ferret out any strong biases about non-English speaking witnesses. It will be time well spent.

D. Just-World Beliefs

Another concept to keep in mind during jury selection is the theory of “Just-World Beliefs.”^[4] It may not be recognized by its title, but its effect can be devastating. It emanates from certain religious or environmental backgrounds.

In essence, this theory ignores the idea that bad things can happen to good people, and holds generally that people deserve what happens to them. If you sense this lack of empathy in the jury panel, it may be appropriate to explain this theory, and inquire into feelings about it.

For example, if your client has problems with jury appeal, or is not represented in the demographics of the jury pool, some jury members may already harbor a general bias against him or her. Combine this bias with a person who feels deeply that your client “probably had it coming” and you are left with a disaster in the making. To avoid it, discuss the concept of “Just-World Beliefs” with a prospective juror, and bring out his or her “feelings” about it. Of course, if you can, deselect any potential jurors who seem to abide by this theory.

Don’t think you’re bulletproof. Tort reform attitudes, racism, class bias and other forms of prejudice can exist in any jury pool. As such, assume its there and work to reveal it during voir dire. The “Good News” is that people in general side with attempts to unveil racial and class prejudices. The other “Good News” is that it is always possible to distinguish your client’s case from “lawsuit abuse” and other related myths that exist today. Effective voir dire always has been, and remains the best way to ensure your client receives a fair and impartial trial by jury.

^[1] For a more-detailed discussion of voir dire, see R.P. Johnson and M. Eidson, Defective Product: Evidence to Verdict, Juris Publishing Company, N.Y. (2003 Supplement) at Chapter 7.

^[2] In Weathers v. Kaiser Foundation Hospitals, supra, the trial court granted a new trial because a juror emphasized during deliberations that plaintiff was a “black woman” and that “where he came from they don’t even let a black woman in the courtroom.” In affirming grant of a new trial, the California Supreme Court stated that “when concealment of racial bias by a juror exists, the impropriety of a single juror may be sufficient to destroy the integrity of the verdict.” Weathers v. Kaiser Foundation Hospitals, supra at 111.

^[3] In Tapia v. Barker, supra, juror declarations established that a juror made comments about plaintiff’s Mexican heritage, and questioned his citizenship: “[I]t does make a difference... [plaintiff] must be getting something, either disability, welfare or unemployment.” The Appellate Court emphasized “the misconduct which occurred in this case not only erodes confidence in the legal system, it violates the constitutional guarantee of a fair trial.” Tapia v. Barker, supra at 766.

^[4] For a more-detailed discussion on “Just-World Beliefs,” see Melvin J. Lerner, The Belief in Just World-A Fundamental Delusion (Plenum Press)”; and Adrian Furnham and Barrie Gunter, Just World Beliefs and Attitudes Towards the Poor, British Journal of Social Psychology (1984) 265-69.

SELECTING OUT JUROR BIAS