SELECTING OUT JUROR BIAS
Raymond Paul Johnson
2121 Rosecrans Avenue, Suite 3400
South Bay Los Angeles
Manhattan Beach, CA 90245
Western Trial Lawyers
June 11-15, 2007
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
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.
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
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
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
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
III. RACIAL, ECONOMIC AND OTHER BIASES
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.
Racist statements have been described by California courts as “the
most destructive misconduct.” Tapia v. Barker (1984) 160
Cal.App.3d 761, 766.
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
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.”
It may not be recognized by its title, but its effect can be
devastating. It emanates from certain religious or environmental
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
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.
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.
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.
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
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.