Douglas B. Abrams

I. INTRODUCTION

In talking with trial lawyers, jury psychologists and jurors, it is painfully clear that the result of the trial is determined at the time of jury selection. During the remainder of the trial, the party which has already won the trial attempts not to lose the trial. Nevertheless, for the most part the legal system works well -- even in the face of harsh criticism by some members of the public. Yet, when a lawyer has been stung by one of those instances of a true miscarriages of justice, the scars remain for a long time. are not common with our jury system.

Proper preparation and conduct of voir dire is essential to obtaining reasonable results before the jury. Furthermore, effective voir dire is not restricted to massive cases. Knowledgeable selection of jurors may be more important in the average case where the case may not try itself.

This paper will concentrate on two aspects of jury selection. First, the paper will discuss the law regarding jury selection. Second, the paper will discuss some practical considerations regarding jury selection. At the end of this paper, some sample voir dire questions are included. This paper is a revision of an earlier paper on Voir Dire by Mr. Charles Blanchard and myself. I have not cited the previous paper.

II. THE LAW OF CONDUCTING VOIR DIRE

In State Court, the attorney is given the right to conduct Voir Dire. See North Carolina General Statute section 915 (1981). Attacks on this right have increased within the last several years. Despite these attacks, the North Carolina courts have continued to recognize that the right for attorneys to conduct Voir Dire includes the right to ask meaningful questions of individual members of the jury panel. See State v. Hedgepeth 66 N.C. App. 390, 310 S.E.2d 920 (1984)(Judge Becton writing for the Court).

The North Carolina Supreme Court has indicated that the trial judge may properly prohibit an attorney from attempting to speculate on the type of verdict which they would render under a hypothetical set of facts. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980). This prohibition, however, does not prohibit an attorney from asking whether the potential juror would be able to follow the Court's instruction. State v. Hedgepeth, 66 N.C. App. 390, 310 S.E. 2d at 922. Methods for questioning in this regard will be discussed later in this paper.

Jurors tend to be very skeptical about the system of justice. Rightly, they tend to resent attorneys who attempt to stake them out without giving them adequate information to decide a point. Questions do not change a jurors world view or mores. The focus of jury selection is not to persuade the jury to accept a different world view, but to allow the juror to see that within the framework of their own moral code, the result the lawyer seeks is proper. An important way to accomplish this result is to discuss the case fairly with the potential juror and with the jury panel. In the end, the lawyer will receive a genuine commitment from the juror that the juror will follow the judge's instructions on the law; and will rule for the Plaintiff if the facts as he or she finds them and the law as instructed by the judge lead to that result.

In State Court, the parties have a right to eight preemptory challenges in a civil case; however, where there are multiple parties, the Trial Judge has the right to apportion the preemptory challenges or increase them up to six per defendant or class of defendant. North Carolina General Statute Section 920.

In many Federal District Courts in North Carolina the jurors are questioned only by the trial judge. In those instances, it is essential that the lawyer prepare in advance and file in a timely fashion a list of proposed voir dire questions to be submitted by the Court. Under Federal Law, the parties are given three preemptory challenges; although the Court has the discretion to give additional challenges with multiple parties. See 28 U.S.C. section 1870.

III. PRACTICAL CONSIDERATIONS CONCERNING JURY SELECTION

Some seasoned trial attorneys have concluded that there are only myths and no science to jury selection. On the other hand, it is increasingly clear that the perspective that potential jurors bring with them strongly affects their interpretation of the evidence. In the end, the likelihood of obtaining a jury willing and capable of following testimony and rendering a reasonable result under the law is probably not decreased by a well prepared voir dire. This section of the paper includes some random thoughts on jury selection and the selection.

A. THE PSYCHOLOGY OF JURY SELECTION

After the selection of the jury, every lawyer looks into the eyes of the jury panel and realizes one person will be the foreman or forewoman. Within any place where more than one person gathers, group dynamics occurs. Many persons have succeeded by understanding that many times appearing to know what you are talking about may be more important than actually knowing it. Thus, one of the first steps in jury selection is locating those persons who will be likely to lead the jury in its consideration. If these persons are unqualified by reason of predisposition or personal emotion to lead the jury in a rational way, they must be removed. If a case is so weak that rational persons following the law could not render a favorable verdict to the Plaintiff, the case should never be tried. Therefore, searching in voir dire for twelve jurors who would render a verdict for the Plaintiff based solely on the Plaintiff's injuries is futile.

When all the science and myths are distilled down, the best Plaintiff's jury are twelve decent and reasonable people committed to following the law. Jury selection is a misnomer, I tend to see the process as jury elimination. That is the exclusion of people whose personalities make them inflexible and unable to work toward logical and reasoned group decisions. The Plaintiff's attorney should be seeking twelve persons who by experience and understanding can appreciate why the facts and law mandate a Plaintiff's verdict. This knowledge often comes from the experience of living rather than education. Some people can become so distanced from humanity through their own formal education that they lack the ability to reach decisions through compassionate wisdom. The Plaintiff's attorney should first analyze his or her own client to assess the Plaintiff's type of person and character. The juror profile in a case should be geared to AVOIDING jurors whose socioeconomic and cultural background would make the jurors unable to identify with the situation of the Plaintiff. In assessing whether the potential juror would feel he or she is similar or dissimilar to the Plaintiff, the Plaintiff's attorney should compare (1) the background of both; (2) the occupations and educations of both; (3) the cultural predispositions of both. This initial consideration of similarity versus dissimilarity is essential. The predispositions of jurors seldom are altered by the most persuasive attorney. Cultural mores are not changed by a trial, but a perspective can be adjusted. Also, there is an strange human tendency for persons too similar in background to a Plaintiff to distance themselves emotionally and psychologically from the Plaintiff to the point that the juror simply cannot render a logical decision. This human tendency explains some adherent results and after the trial it turns out that one jury has become emotionally vested in Adefeating,@ the Plaintiffs case.

An additional psychological concern is to ensure that diametric opposites of forceful personalities are not seated together. self image comprises an important part of any person's personality. Some persons envision themselves as natural leaders. Placing hostile personalities on a jury could lead to disaster for the Plaintiff's attorney. Even a victory in that situation could be entirely pyrrhic. A dynamic group psychology exists with any juror and the Plaintiff's attorney must be cognizant of the interaction among the jurors.

B. FOCUSING THE VOIR DIRE

Jurors during Voir Dire immediately begin forming opinions and predispositions toward the Parties and their attorneys. Jurors, in effect, are looking toward a person who they will trust to help lead them toward a rational result. The Plaintiff's attorney during Voir Dire can and should demonstrate his or her concern that the members of the Jury be treated with dignity and with respect. Similarly, the Plaintiff's Attorney should exhibit organization in the method of examination. Questioning the Jury Panel should not be like a high school pop quiz, with correct answers being rewarded and poor ones being the subject of criticism. The lawyer can focus his or her examination of the Jury by explaining the steps he or she will follow. Furthermore, the most effective voir dires involve conversation with other human beings as opposed to the pretentious speech making reverted to by some lawyers.

An essential part of jury selection is to give the jury a short but fair summary of the case. This summary should not be in the least argumentative in tone or presentation. Criticism from the Judge at this point will diminish credibility.

For example, one November 21, 1996, John Adams was killed when a concrete mixer flipped over onto his car while it was making a right hand turn. The concrete mixer was owned by ACME Construction and was driven by Ralph Thomas. I represent Mrs. Thomas and her children. We are seeking damages against the Defendant Thomas and ACME construction company.

Next the attorney should explain the procedure he or she will follow. I suggest that two types of questions be asked: (1) questions to the entire jury panel, and (2) questions to individual jurors. Jurors should be asked to respond affirmatively by raising their hands. The lawyer begin with either the front row or the back row because six people tend to develop less fear of responding than twelve. This procedure personalizes the questions. A form list of questions is attached to the Appendix of this Paper.

C. PREVENTING ALIENATION OF THE JURY

Jurors, and particularly first time jurors, face an extremely tense situation when Voir Dire questioning begins. In this environment, certain people exhibit aggressive and hostile behavior. Because the Plaintiff's lawyer generally has the first opportunity to question the jury panel, alienating the jury remains a genuine risk. In order to reduce this risk, Plaintiff's counsel should studiously avoid giving the slightest impression of conducting a "meat market " and scattered examination. The jurors must be treated as fellow members of the community. The questions tendered to them must exhibit a desire to know them as human beings and not a desire to fetch the twelve most favorable persons of the group. The jury will feel itself attempting to be exploited, and it will react negatively. Any negative feelings toward the lawyer generally find their way to the Plaintiff. Similarly, choosing language that connotes a condescending attitude by the lawyer can lead to disaster. If a lawyer exerts too much force trying to stake out a particular juror, that juror, as well as his or her companions on the jury panel may resist any further attempts by the lawyer to persuade them as to facts. On the other hand, most people have a self image in which they perceive themselves as truthful and worthy of trust. They take pride in their honesty and integrity. Therefore, when individual questions are asked, each potential juror, other than jurors whom Plaintiff's counsel has already determined should be removed, should be asked specific questions regarding liability and damages. We suggest a line of questioning as follows:

Ladies and Gentlemen, after all the evidence is received and the lawyers have a final chance to discuss their view of the case, this Court will explain to you the law of North Carolina. The judge, and only the judge, will be the source of the law you must follow in this case. However, I must ask you, Mr. Juror, whether if after the Judge explains the applicable law, and you find by the degree of proof which the Judge will tell you, that my Client, Mrs. Hooper, is entitled to recover damages against the Defendants, is there any reason why you would hesitate to follow the Judge's instructions and the weight of the evidence and accordingly render a verdict on behalf of the Plaintiffs?

Similarly, with regard to damages, it is essential that each juror understand that he or she cannot grasp for a number out of the air, but must weigh damages element by element. This procedure is equally important in soft tissue injury cases as in massive personal injury cases. Accordingly, we suggest a line of questioning to each juror as follows:

Ladies and Gentlemen, as I mentioned to you before, the Judge and only the Judge will be the source of the law that applies in this case. I believe the Judge will instruct you in this case that there are different elements of damages under the law of this State. Those damages generally are of two types. First, damages already sustained, such as medical bills, lost wages, pain and suffering up until today, loss of use up until today; and Second, future damages. These damages, I believe the Judge will tell you include, medical bills, past and future, pain and suffering, past and future, lost wages, past and future, and lost enjoyment of life, past and future. My question to you is, Mr. or Ms. Juror, if you are chosen as a Juror and you find under the law as the Judge explains it, and the greater weight of the facts, as you apply the facts to the law, that my clients are entitled to a verdict in their favor, would you be able to view the damages, element by element and award compensation for each element, rather than merely pulling a number out of the air. Even if the number were significant as you added up the separate elements, would you still consider the damages element by element under the law of North Carolina. Even if the number you arrived at was a large number, such as One Million Dollars, would you hesitate to award all the separate element of damages proved to you by my clients.

In this situation, the lawyer must be careful not to imply to the juror that he or she should award money merely because the Plaintiff is hurt. However, the Plaintiff is entitled to have jurors seated who will follow the law and to award all the proven damages. In some cases, jurors may have a tendency to grasp at a cumulative number without considering the basis for the award. If

Plaintiff's counsel cannot explain the basis for the verdict, certainly the jury cannot be expected to render an adequate verdict.

D. DEALING WITH THE ISSUE OF SYMPATHY

The Defendant's counsel will also inexorable allude to "sympathy," in jury selection. The purpose is to dull the jury's sensitivity as to human suffering. A common tendency by jurors, as a result of such inquiries, may be to overcompensate and to penalize the Plaintiff. Accordingly, the Plaintiff's attorney should address the sympathy question. Often, the Plaintiff's attorney will want to address the Jury Panel substantially as follows:

Do each of you understand that our client is not here seeking sympathy. Sympathy is a form a charity, and my client is not here for charity. Our client is a person of pride and charity would be demeaning to her. She is here to obtain the full measure of justice which the law allows and contemplates. We do not want one penny of an award for sympathy. We believe any further reference to sympathy will come from the Defendant's counsel; and the purpose could only be to attempt to have each of you bend over backwards so far that you overreact against my client. Therefore, do each of you understand you are to render your verdict, not out of sympathy for my client, or even any sympathy you might have for the Defendants; but instead you are required to render an award based upon the facts as you find them, and the law as the Judge instructs you.

Similarly, the Plaintiff's attorney might consider further inquiry by asking,

Do all of you understand that the law contemplates jurors will not abandon their compassion in the courtroom; but rather will apply reasoned compassion consistent with the law and the facts?

Some jurors have a tendency to misunderstand instructions regarding sympathy to require them to be hardhearted. The Plaintiff's attorney should not permit the misapprehension to occur.

E. ACKNOWLEDGING POTENTIAL WEAKNESSES

Failure to disclose potential weaknesses in the Plaintiff's case can lead to disaster. The only truly irredeemable evidence is that evidence the jury learns from the Defendant's counsel first. This procedure is called work shopping. If the evidence once revealed is so catastrophic that a favorable verdict is impossible, the case should not be tried. For example, if a damaging statement appears in a medical record, which perhaps contains information in the history that is damaging, an approach is to question the jurors individually as to their own experience where a physician misunderstood their statement. The attorney might inquire of a potential juror, "In this case, within the history by Dr. Garfield there is a statement which my client knows to be inaccurate. My question to you is whether you have had any experience yourself, with a family member of a close friend, where in the emergency room situation a nurse or doctor misunderstood what you were trying to tell them? Would you be able to listen to the evidence of the witnesses and to determine for yourself whether there was a miscommunication between my client and Dr. Garfield?"

This line might be continued by asking the juror, "Do you believe that merely because something is written in a medical report that it has to be true; and that the only explanation is that my client is now altering her story?"

In a situation where two independent witnesses disagree on an essential fact, the Plaintiff's attorney should inform the jury of this disagreement; and ask whether the potential juror has ever had experience where he or she witnessed an event and recalled something different from another witness. That juror should then be asked about their experience in having to choose between two stories, such as in the parental role, or in another supervisory role.

Accurate disclosure is essential. Furthermore, handled properly, and with luck, disclosure can assist in building the credibility both of the client and the attorney.

APPENDIX

1. Sample Voir Dire Questions in Federal Diversity Case Involving Injuries from a Riding Lawn Mower

The Plaintiffs, respectfully request that the Court inquire of the jury with regard to the additional questions shown below:

1. Has any member of the jury, his or her family, ever owned or used a riding mower?

(a) If so, please describe by whom it was manufactured and the period of time it was used.

(b) If so, please describe whether you or your family member had ever fallen off the mower or been injured by the use of the riding mower.

2. Has any member of the jury, his or her family, ever been a defendant in a lawsuit or had a claim for damages brought against them.

(a) If so, please describe the nature of the claim and whether or not it was resolved without a complete trial.

3. Has any member of the jury, his or her family, ever performed mechanical work on a riding lawn mower?

(a) If so, please describe the nature of that mechanical work.

(b) please describe the riding mower which was worked upon.

4. Have you, your family member ever worked for a company whose business regularly involves the investigation of lawsuits?

(a) If so, please describe the nature of that business.

5. If under the law, as the Court instructs you, and under the facts, as you find them by the preponderance of the evidence, you concluded that the claimants in this case, Tommy Casper and his mother, Abby Casper, were entitled to recover damages from one or more of the Defendants, is there any reason why you would be unwilling or unable to so find for the Claimants?

6. In these case, there are three corporate defendants, Sears, Roebuck & Company, the Murray Ohio Manufacturing Company and Tecumseh Products Company. Is there any reason why you would be unable to give the individual claimants in this case, Tommy Casper and Abby Casper, a fair trial in this case, merely because there are three corporations which are defendants in this case?

Respectfully submitted this is the ____ day of March, 1997

TWIGGS, ABRAMS, STRICKLAND & TREHY, P.A.

BY:

Douglas B. Abrams
Attorneys for Plaintiff
150 Fayetteville Street Mall
P.O. Drawer 30
Raleigh, North Carolina 27602

Telephone: 919/8284357
Email: DougA70320@aol.com

2. Sample Questions in Federal Diversity Case Involving Injuries During Aircraft Flight Instruction

1. Have any of you, a family member or close friend ever ridden on a hang glider or an ultra light aircraft?

(a) If so, please tell us about the circumstances of such a ride.

2. Have you, a family member or close friend ever taken hang glider or ultralight aircraft flight instructions?

(a) If so, please tell us about the circumstances of such a lesson.

3. Are you, family member or close friend a pilot or a person who has taken flight instruction?

(a) If so, please tell us about the circumstances of that.

4. Would you personally have hesitation about taking hang glider or ultralight aircraft instructions?

(a) If so, please describe your feelings about it.

5. Have you ever read anything about accidents involving hang gliders or ultralight aircraft?

(a) What were your feelings about them?

6. Have you, close friend or relative ever worked for a company whose business involves the regular investigation of lawsuits.

(a) If so, please describe your experience in that regard.

7. Have you, close friend or relative ever participation in action sports including water skiing, snow skiing.

(a) If so, please describe your experience in that regard.

8. Are any of you familiar with big time fliers, including having ever read any advertisements about big time fliers.

(a) If so, please tell us about that.

9. Has any member of the jury, his or her family, ever owned or used a hang glider or an ultralight aircraft?

(a) If so, please describe by whom it was manufactured and the period of time it was used.

10. Please describe whether you, family member or close friend have

Ever been hurt in the use of a product?

(a) If so, please tell us about that.

11. Have you, family member or close friend ever been a defendant in a lawsuit or had a claim for damages brought against you or them.

(a) If so, please tell us about that.

12. Have you, family member or close friend ever performed mechanical work on a car, airplane or other machine?

(a) If so, please tell us about that.

13. If under the law, as the court instructs you, and under the facts, as you find them by the preponderance of the evidence, you concluded that the plaintiff in this case, Richard Grant was entitled to recover damages from the defendants, is there any reason why you would be hesitant or unwilling to so find for the plaintiff?

14. In this case, there is one corporation that is a defendant, big time fliers; is there any reason why you would be unable to give the individual plaintiff, Richard Grant, a fair trial in this case, merely because a North Carolina corporation, big time fliers is a defendant in this case?

15. Have you ever read anything in a newspaper about the wreck which occurred on August 13, 1981, in which Richard Grant was injured at Edenton Airport in the crash of an ultra light aircraft during flight instruction by big time fliers?

(a) If so, would anything that you have read influence your decision in this case in any way.

16. Have you ever been a juror before.

(a) If so, please describe the kind of case and whether that case reached a verdict.

17. Have you, family member or close friend ever used the law firm of Womble Carlyle, Sandridge and Rice?

18. Do you know any of the lawyers in that law firm?

19. Has any family member of yours ever suffered serious injuries?

20. Have you ever had chronic pain?

21. Have you ever had to care for a family member or friend who had serious injuries or disabling pain?

Respectfully submitted this is the ____ day of March, 1997

TWIGGS, ABRAMS, STRICKLAND & TREHY, P.A.

BY:

Douglas B. Abrams
Attorneys for Plaintiff
150 Fayetteville Street Mall
P.O. Drawer 30
Raleigh, North Carolina 27602

Telephone: 919/8284357
Email: DougA70320@aol.com

3. Sample Questions for Jury Selection in Back Injury Case

A. Questions to Panel {front first, then back}

1. Do you know the Plaintiff, Kathy Henderson?

2. Have ever used the Law Firm of Twiggs, Abrams, Strickland & Trehy, P.A.?

3. Have you ever used the Defendant's Law Firm?

4. Have you, family member, or close friend ever worked for a trucking company?

5. Have you, family member or close friend ever heard of an incident in which Kathy Henderson was injured on Highway 64, outside of Raleigh, when a tractor trailer was passing on a bridge?

6. Have you ever been on Highway 64, near the Haw River Bridge.

7. Have you ever driven on that road when people were passing?

8. Have you, family member of close friend, ever worked for a company whose business regularly involves the investigation of lawsuits?

9. Have you ever been a juror before?

10. Have you ever been a witness before?

11. Have you, family member, or close friend ever been in a car wreck before (and if so, was anybody hurt in the wreck)?

12. Have you, close friend or relative ever made a claim for personal injuries?

13. Have you, close friend or relative ever had a claim for personal injuries made against them?

14. Have you, close friend or relative ever had arthritis or a ruptured disk?

15. Do each of you understand that sympathy is not what you are called to this Court to determine; and further do you understand that my client is a person of pride and as such is not here to have a favorable verdict rendered in her behalf based on sympathy. Rather, do each of you understand that you are called here to find facts and to apply the law to the facts; and render a true verdict on the law as the Judge tells you and the facts as you, the jury find them? If you still have any question about that, please raise your hand and we can talk about it further.

16. Do any of you know the following witnesses: Dr. Jones of Raleigh, Officer Peter Richards of the Highway Patrol, etc.

17. Have you, family member or close friend ever worked around heavy equipment, including tractor trailers?

B. Questions to Individuals

1. Please tell us about your occupation and the occupation of your spouse {mother and father to a younger person}

2. Please tell us about your educational and training background.

3. Where did you and your spouse grow up?

4. Have you or your spouse ever had any training in the law or in law enforcement?

Respectfully submitted this is the ____ day of March, 1997

TWIGGS, A