Voir Dire by Karen Koehler by The Stritmatter Firm

Real Justice for Real People

VOIR DIRE

Volume 1 | Issue 8 December 2010 STRITMATTER KESSLER WHELAN COLUCCIO

TABLE OF CONTENTS ABOUT THE COVER ART............................................................................ 4 ABOUT THE ARTIST.................................................................................... 4 ABOUT STRITMATTER KESSLER WHELAN COLUCCIO................................................................................... 6 ABOUT KAREN KOEHLER........................................................................... 7

VOIR DIRE.................................................................................................. 9 PROLOGUE................................................................................................... 9 Trial Diary............................................................................................. 9 Trial Day Two..................................................................................... 14 THE ORIGINS OF VOIR DIRE..................................................................... 19 THE CONSTITUTIONAL RIGHT TO AN UNBIASED JURY...................... 21 ENTER “JURY BIAS”................................................................................. 24 Trial Diary........................................................................................... 24 VOIR DIRE MISTRIAL – THE STORY OF A JURY THAT WAS TOO BIASED............................................................................................... 32 LEGAL RULES GOVERNING THE EXERCISE OF CHALLENGES............ 38 LEGAL RULES OF PEREMPTORY CHALLENGES.................................... 39 LEGAL RULES OF CHALLENGES FOR CAUSE........................................ 45 ADJUSTING THE ATTORNEY MINDSET IN APPROACHING VOIR DIRE................................................................................................... 48 Trial Diary........................................................................................... 50 TIPS TO ESTABLISH A HUMAN CONNECTION...................................... 56 LISTEN… WITH HEART, MIND, BODY AND SOUL................................. 58 GIVE EVERYONE AN OPPORTUNITY TO SPEAK.................................... 60

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WAYS TO KEEP TRACK............................................................................. 62 EXERCISING PEREMPTORY CHALLENGES............................................ 64 EXERCISING CHALLENGES FOR CAUSE................................................ 66 CLARIFICATION IS PROPER, REHABILITATION IS NOT.......................... 70 JURY QUESTIONNAIRES.......................................................................... 75 Trial Diary........................................................................................... 75 COURTROOM INTERNET SEARCHES OF JURORS................................ 80 WE MUST DO OUR BEST THEN MOVE ON............................................ 82 Trial Diary........................................................................................... 83

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ABOUT THE COVER ART “Thirty” is part of Jose Ramirez’s series that documents the invisible – the workers and people who are seldom acknowledged for their contributions. In the end, their work is what helps make our world a better place. ABOUT THE ARTIST Jose Ramirez is an artist, teacher and the father of three girls, Tonantzin, Luna, and Sol. He received a BFA (1990) and an MFA (1993) in art from UC Berkeley. In 2001, he received the Brody Award/Getty Visual Arts Fellowship. Jose has illustrated seven children’s books, including Quinito’s Neighborhood, Frog and Friends Save Humanity, Zapata para los Niños, Papito Dios, and Quinito Day and Night. Among his commissions, he has worked for several nonprofit organizations, hospitals, cities, film and television companies and cultural centers across the country. In addition, he has lectured and exhibited his work in museums, universities, galleries and cultural centers in New York, Washington DC, San Francisco, San Diego, Texas, Japan, and Mexico. For more info please visit ramirezart.com. You may contact him at joseram@aol.com or 323.377.4967.

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“Jurors see Karen as a person – a human being who cares about the people she is representing. The tips in this booklet can help a trial lawyer improve his/her technique in jury selection.” — Mary Alice McLarty, Esq. Dallas, Texas Vice-President of the American Association for Justice “One of the most comprehensive and intelligent discussions of the issues facing all plaintiff lawyers in voir dire.” — Rick Friedman Friedman Rubin, Washington and Alaska Author of Rules of the Road and Polarizing the Case “Voir dire is arguably the most important part of any trial and yet the most difficult for a trial lawyer to master. Karen Koehler has beautifully written this guide to voir dire that perfectly combines the law, the art and the science of jury selection. This is a must read for any trial lawyer interested in winning!” — David Wenner Snyder & Wenner P.C., Phoenix, Arizona Co-developer of the Jury Bias Model™

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ABOUT STRITMATTER KESSLER WHELAN COLUCCIO Stritmatter Kessler Whelan Coluccio (SKWC) is a premier Pacific Northwest law firm devoted to representing plaintiffs in personal injury and wrongful death claims. Experienced in trial, SKWC attorneys welcome tough, complex cases. Our verdicts and settlements include product liability, nursing home, government liability, medical negligence, highway design, premise and construction site, class action, vehicle crashworthiness, major vehicle collision, maritime and aircraft crash cases. The attorneys at SKWC are committed to making a difference in the lives of our clients, in helping to ensure justice for the injured, and in contributing to the legal community through leadership and education.

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Photo by Meryl Schenker Photography

ABOUT KAREN KOEHLER

Nicknamed “The Velvet Hammer” by some of her adversaries, Karen is known for her creativity, tenacity and trial skills. Mother of Cristina, Alysha and Noelle, she has a particular place in her heart for representing families who have lost loved ones due to intentional or negligent acts. Among those cases is Kime v. City of Seattle, a wrongful death settlement for Kristopher Kime’s family that found the city responsible for enhancing the danger of the 2001 Seattle Mardi Gras riot. Laws have changed because of the stories of clients whom she has represented. In Ethel Adams v. Farmers Insurance Co., a psychotic man hit a car that crossed the center line and crashed into Ethel. Farmers said it “was not an accident” and denied coverage. As a result of case publicity, the Office of Insurance Commissioner drafted “Ethel’s law” that prevents insurance companies from ever again claiming that an “accident” was not an “accident” in uninsured motorist cases. STRITMATTER KESSLER WHELAN COLUCCIO

Karen is a prolific speaker and writer, an author of nationally published legal treatises and an adjunct professor at the University of Washington School of Law. Her publications include: Litigating Major Automobile Injury and Death Cases, Thomson West (c) 2007; Litigating Minor Injury Soft Tissue Cases, Thomson West (c) 2001; Handling Motor Vehicle Accident Cases Volume 4 – case files, Thomson West (c) 2004; Voir Dire to Verdict, 5th Edition Chapter Author Washington State Bar Association; The Jury Trial; Washington Motor Vehicle Accident Litigation Deskbook (c) 2009 Washington State Bar Association. She has written and co-produced two DVDs. Preparing for Deposition and the upcoming Preparing for the Defense Medical Exam. Both distributed by Trial Guides. Karen received the Trial Lawyer of the Year Award in 2005 from the Washington State Association for Justice. She served as its president in 2007-08. She has also held leadership positions in the American Association for Justice and is a member of the America Board of Trial Advocates. Karen is listed in The Best Lawyers in America and regularly listed as a top 100 Super Lawyer and a top 40 personal injury lawyer by Washington Law & Politics Magazine. Karen’s newest cause, is the creation of the Spinal Cord Injury Association of Washington (SCIAW). This non-profit organization is a chapter of the Christopher Reeve Foundation. For more information, please visit www.SCIAW.org. Learn about the different facets of Karen at her personal website, KarenKoehler.com. Visit Karen’s blogs. Karen blogs about everything under the sun at KarenKoehlerBlog.com. At SpinalCordInjuryLawBlog.com, Karen blogs about all things related to spinal cord injuries. You can also follow her on Twitter @ K3VelvetHammer. 8

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VOIR DIRE By KAREN KOEHLER1 PROLOGUE Trial Diary2

There are a lot of lawyers in the courtroom. I’m seated at the apex of the right angle of counsel tables. To my immediate right is the doctor defendant, then defense counsel T.W., their jury consultant G.H., and farthest from me is defense counsel R.R. To my left is our side. T.W. has nails that extend an inch beyond her fingers and are filed almost to a point. They are painted blood red. I am fascinated by them. They remind me of the wicked old Chinese emperors who probably enslaved my forbearers. They click quietly as she gracefully fiddles with her pen and flips through pages. I am impressed with her adeptness. I look down at mine. One is chipped from gardening yesterday. They are all cut to different lengths by my 99 cent drug store nail clipper. I don’t think I’ve filed my nails in – well, that is too much information for sure. But you get the picture. I am definitely way behind T.W. Did I mention that her hair is beautifully groomed, died henna red as well. Yep you guessed it. Mine is tied back with a pony tail holder from the same drug store. Several years ago the SKWC law firm created a voir dire brief. We file it along with our trial brief in cases where we have voir dire concerns. The brief was primarily written by Ray Kahler and Garth Jones though many of us have contributed to it over the years. Portions of that brief are used in this booklet.

Excerpt from my trial diary of a medical malpractice case in October 2010.

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Now lest you think I am a total slouch, R.R. comments on my lovely new high heel pumps and the color of my legs (okay sounds weird but I run outside and it has been sunny lately). She is wearing what look like tap shoes with stockings. I hate stockings. Yes, this is how we get ready to do battle – we engage in feminine small talk while we sharpen our blades. In his typical highly efficient manner, Judge G has already signed an order on the motions in limine and declined to give our agreed-to jury questionnaire. The judges are reluctant to give these anymore. We cannot stipulate to confidentiality on behalf of the jurors due to public disclosure laws. They must be filed with the court. The bailiff hands us carbon copies of the jury information forms. Forty-five jurors3 walk in before I have even written down all of their basic information. Judge G asks the hardship question. Three quarters of the jurors raise their hands. I’ve never seen so many. Financial hardship, health, travel, work or home commitments. He excuses 16 who have financial hardship and travel plans. We take a break and the bailiff announces that they are pulling 15 more jurors from the pool. They arrive and this time only three ask for hardship of which one is granted. So we have our panel. I’m watching their jury consultant. He is pleasant looking, smiles a lot and is dressed in a suit. He looks pretty much like a lawyer though he’s a Ph.D. He doesn’t have a computer or iPad or anything high tech. He has paper charts spread over Technically “venire” is the panel of prospective jurors. For purposes of this article, the terms juror, jury, prospective juror, and venire will be used interchangeably.

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the table and sticky notes that he writes on and places in the various squares. At first he spends more time playing with his stickies than he does watching the jurors. We are given a first round of 40 minutes and my law partner Kevin goes first. He jumps right into jury bias/medical malpractice issues. It is not pretty. For those of us who think that we must be doing great because we’ve managed to beat off tort reform, here are two words for you. Wake Up. Most of the jurors believe in tort reform. Two jurors are removed for cause. R.R. goes next and it is clear what her marching orders are from the jury consultant. She is engaged and tuned in to the jurors. She has good presence and direct eye contact. She has a very high voice which is a bit disorienting. It is not pleasing to the ear, but she projects clearly and loudly. After awhile you get used to it because she is so skilled. But it is not her strongest feature. R.R. smiles all the time. There is almost never a time when I see her without a smile on her face, even when Kevin is doing voir dire. Anyway, back to her marching orders – do nothing. This is a tough jury. The last thing she wants to do is talk about anything that will alert us to more jurors who should be removed for cause due to bias. For forty minutes, she asks innocuous questions like who has been in a lawsuit, people’s experiences with pediatricians or doctors. And occasionally she will use a juror to score a point – like getting a medical technician to agree that medical tests are not 100% accurate. I get essentially nothing from her 40 STRITMATTER KESSLER WHELAN COLUCCIO

minutes other than the message that they are happy with this jury. We have a short break. Kevin comes up and asks me what I’m going to do. I say I’m not telling. He thinks I’m being coy. In truth, I never know what I’m going to say until I say it. I never know exactly how I’m going to do something until I do it. I start off by telling the jurors that I am only there for voir dire because I’m supposed to be starting another trial. I ask them if they are okay with both G.H. and I being in trial on a limited basis. I can feel G.H. and the defense lawyers suck in their breath. I don’t expose him for being a consultant. And they breathe. The jurors and I then launch into a discussion about money, morality, a doctor’s reputation, and burden of proof. You know the feeling you have when you are throwing ingredients together in a pot, stirring it and it actually is looking just like it should. I am bad at following recipes and like to just throw things in and stir. Sometimes the results are not good, gooey waffles come to mind. My poor kids. Other times, I’m actually amazed – it is just as I’ve dreamed. Well, that is what is happening. I can feel the defense lawyers and G.H. behind me absolutely still and riveted. They want to object so badly but I haven’t done anything wrong. Virtually half of the jurors are with me in that pot and we are percolating towards “that” moment. A few of them hop out because they aren’t as deeply committed. But the rest of us – a complete dozen in fact – are still in that pot and we are bubbling. What have we agreed to: Where large money damages are being 12

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sought and a doctor’s reputation is on the line, they all share a strong moral conviction that the burden of proof should be beyond a reasonable doubt or certain – not more probable than not. We are about to overflow. We have confirmed this position with utter clarity. I say the magic words – request that these jurors be removed for cause. T.W. jumps up and makes a long speaking objection that maybe the jurors are “mistaken” about their positions and how this could be. The judge stops her. I’m thinking he’s going to tell her she can now ask questions. But he doesn’t just stop her. He stops everything. I’m actually not tracking with him as he tells us that we are going to take a break now. He tells the jury that there is a verdict that has now come in from the jury who has been deliberating after a three week trial. He tells them we will resume tomorrow and excuses them. I hope my mouth isn’t agape as I remember to put on my mask of utter pleasantness. T.W. is probably clicking her nails in utter delight. Judge G makes a kind comment that we can pick up tomorrow and I can continue along this line of questioning. I don’t even know what he is saying because I am so disoriented. Whaaaaa? I move for cause with twelve jurors in the pot and the court calls a recess? The verdict comes in. It is an almost $30 million dollar verdict in a highway design quadriplegic injury case. I understand that the verdict had to be dealt with. But whaaaaaaaaaa. So T.W. leaves the court with her jury consultant and they will

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spend all night figuring out how to reverse the effects of my witch’s brew. Trial Day Two

I get to the courthouse and begin my walk up the stairs to the ninth floor. Half way there I notice something. I’m moving fast. In fact, I’m striding up those stairs. If my legs were longer I’d be taking them two at a time. Apparently there is a lot of adrenaline flowing. I’m more irritated than I let on. The full cast of characters has returned. Before the jury comes in I make a little speech, reorienting everyone to what happened yesterday. The judge catches my eye – he does not need reorienting. I make my record. I also comment that T.W.’s objection/speech after I moved for cause was completely inappropriate. Which it was. Judge G lets me have my say, doesn’t comment, and brings in the jury. I begin reorienting the jury. Number two can’t hear. His headset isn’t working. He fiddles with it. I start and stop two times. Then we go to a commercial break while the bailiff runs out to get another unit. This is what happens for the five interminable minutes (a thousand and one a thousand and two a thousand and three…) while she is gone. Nothing. Not a single word is spoken. We are in suspended animation. Judge G does some work from the bench. I am seated in a chair directly below him with no one to whisper to. It is awkward. But when you think about it – if Judge G was to tell a story or joke or anything, #2 would be left out in the cold. So instead, we all are left out there shivering with him. 14

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The bailiff delivers a working headset and I begin. We go back to yesterday and the position of the unflinching dozen that they will not be able to follow the court’s directions. Anyone change their minds since yesterday – not a single one of them. I give them every opportunity. And then move for cause again. T.W. takes the stage. She’s quite at home on it. She has a nice theatrical voice and is far more animated than R.R. She gets right up to the edge of being over the top. She moves around well, has an extremely expressive face and uses her hands and fingernails to communicate. Except she is a little restrained in the beginning because she is holding a script in front of her. Yes, it is a script most assuredly created by G.H. last night. She begins by singling out #59. Yesterday he disclosed he was a juror in a medical malpractice case tried by R.R. 14 months earlier. I know the case ended in a defense verdict. They have him in a chokehold. Either: a) he ignored the law and applied a beyond reasonable doubt standard to that case; or b) he was wrong yesterday to say that he couldn’t follow the law in this case. She is kind and smiling and pointed and leading and cajoling. She disparages the discussion of 49/51 percent or any percent relating to burden of proof. And tries to talk about a reasonable person and being open to other peoples’ discussions in the jury room. She tries to give him an easy out. But she has to use the phrase “more probable than not” as compared to “beyond a reasonable doubt.” And no matter how she does that dance, I can see the jury nodding at me. I was not playing games with them yesterday. STRITMATTER KESSLER WHELAN COLUCCIO

R.R. objected to my use of these words and forced me to speak in hypothetical but here they are using the same words. It takes about five minutes for her to get #59 to flip. She goes to juror number two – the one who is the most outspoken in the box on tort reform. He also said that doctors recently saved his life and he was beholden to them. She apologizes for picking on him but says she feels this is better than “lumping them all together” (like I did -- bad me). She uses the same questions, the same techniques but they don’t work quite as well. She has to lead a little too much. He weakly flips. But she is now 2-0. T.W. senses that she is getting in the groove. She is becoming more flamboyant to the point where she reminds me of someone. Hmmm. Who could that be. Why Bette Midler of course! She flitters on to number one. She listens and follows up well, weaving in her same line of questioning and techniques. #1 is gentle spirited and so soft spoken that almost no one can hear her. She doesn’t flip. T.W. doesn’t recognize that her routine has its limits. It begins to seem like she’s brow beating number one. Her red talons/nails are flashing as she moves closer towards her prey. I find myself again being mesmerized by them, but manage to shake myself away from their spell. “Your Honor” I begin to say but before I can finish, Judge G tells her: “Move to the next juror.” T.W. talks to each of the remaining twelve one by one though she shortens up her spiel and cuts a bit more to the chase.

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When it is time to talk to the jurors in the back rows, she marches right back there getting up close and personal like the good show woman she is. Here’s what she hears: • I would try to follow the instructions, but can’t promise you that I will. • I need to stick to my moral conscience. • The line is too thin between beyond a reasonable doubt and more probable than not. • More probable than not is not a strong enough standard in a case like this. • I would disregard the court’s instruction. She knows her momentum is slipping away. She mimics a juror waltzing into a deliberation room and saying – hi y’all I’m going to ignore the law. You wouldn’t do that right? She chortles. She gets a few laughs. She is entertaining. But I don’t feel that she’s connecting in a warm way with the jurors. Half an hour passes before she finishes. Judge G asks if the defense will agree to the cause challenge for any of the twelve. The three of them consort and T.W. announces that four of the jurors should be excused. They are hoping that will end the carnage. Without any explanation. Without asking the jurors any of the awful questions some judges do (i.e., you would follow the law wouldn’t you if I told you to), Judge G dismisses five more. Nine of the twelve. We sit quietly while they collect their belongings and leave our room.

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I still have about five minutes left of my thirty minute round that started yesterday. What to do. Well, I’m not going to change the subject because nine people just left the courtroom and we can’t just switch gears without acknowledging that. So I guess we’ll dwell in the moment a little more. I retake the stage from Bette…I mean T.W. There had been some discussion by counsel that I may have “picked” on some of you, that you were unfairly targeted. Do any of you feel that way – that you didn’t have a say? They shake their heads no at me. They are fine. I move into the subject – talking about the need to have the scale even before we begin so one side isn’t unfairly disadvantaged. A juror tells me she actually feels she may be biased in favor of the child. I embrace this, knowing she will be booted off by the defense. I have to make the point to establish once and for all the credibility of the plaintiff. Regardless if you are too much for the child or for the doctor and cannot put aside the bias, you shouldn’t sit on this case. T.W. spends her half hour the same way that R.R. did her round. Innocuous questions about eye sight, photographs, computers and other disjointed topics meant to send hidden messages. She continues to be overly animated. I sense the jurors have become more guarded. I don’t think they liked how she manipulated the twelve jurors who were challenged for cause. They shaked and shimmied with her and some of them flipped. But they all could see that she was performing a magic trick. *** 18

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THE ORIGINS OF VOIR DIRE Prior to the thirteenth century, accusatorial trial practices existed throughout Europe, such as trial by ordeal or trial by battle. Over time, inquisitorial practices and the use of juries became more widespread, although certain practices we now take for granted -- such as not punishing jurors for returning a verdict of not guilty -did not develop in England until the late seventeenth century. Across the Atlantic, the proper function of a jury became a topic of heated debate between Federalists and Anti-Federalists in 1787. The draft Constitution presented to the thirteen states provided for a right to trial by jury in criminal matters, but allowed for that trial to take place anywhere in the state where the crime occurred. The Anti-Federalists opposed this viewpoint, arguing that only a local jury (drawn from the “vicinage”) could properly dispense justice. Members of the vicinage were thought to be those in the best position to already have an opinion as to the accused’s character, some knowledge of what had occurred, and a greater stake in the outcome of the case. Naturally, the Federalist counterpoint was that a just verdict was one delivered by a disinterested group, free of prior knowledge or bias. The Federalist position prevailed; thus, the concept of trial by an impartial jury displaced the traditional practice of juries of the vicinage.4

Major Ann B. Ching, Who Questions the Questioners? Reforming the Voir Dire Process in Courts-Martial, 204 Military Law Review 182, (2010). Citations omitted.

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For centuries, jurors were primarily white male citizens who owned property. In eighteenth-century England, writes a student of the period, ‘probably 75 percent of the population was rigorously excluded from common juries. They were virtually only seen in court as defendants.’ “Special juries” -- made up of persons of an even higher class than usual, or of experts in a commercial or professional field – were sometimes used to the exclusion of ordinary citizens. The promise of the Civil War amendments to the Constitution that racial minorities would have full rights of citizenship, including the right to serve on juries – went unkept for a century. Women also were ineligible for jury duty, in most states, until about 1940. The “key man” system – under which the court clerk or marshal would limit jury summonses to those considered reliable – persisted in the federal courts until 1968, when Congress, in the Jury Selection and Service Act, required for the first time that jurors be ‘selected at random from a fair cross-section of the community.’ A 1975 Supreme Court decision5 adopted that standard as a constitutional requirement for state court juries.”6

“

Whoever undertakes to set himself up as a judge in the field of Truth and Knowledge is shipwrecked by the laughter of the gods. — Albert Einstein

”

Taylor v. Louisiana, 419 U.S. 522 (1975).

Hon. William L. Dwyer, In the Hands of the People (2002).

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Enter the concept known as “voir dire.” Scholarly sources quibble about the root of the terminology. In Latin, “voir” derives from “videre” which means “to see.” It may be similar to the Latin word “verdict.” “Voire” (with the “e”) also is an old French word that means “truth.” There is a newer version of “voir” that means “to see.” “Dire” in French means “to speak.”7 The newer French version loosely translates into “tell what you see.” And since “eyes don’t lie,” the expression means “speak the truth.” This mystery is worthy of its own law review article. For our purposes, we will adopt the definition of Black’s Law Dictionary (9th Edition), which says: voir dire (vwahr deer also vor deer or vor dIr), n. [Law French “to speak the truth”] (17c) THE CONSTITUTIONAL RIGHT TO AN UNBIASED JURY Our federal and state constitutions provide that the right of trial by jury shall “be preserved” and “remain inviolate.”8 This right requires “an unbiased and unprejudiced jury.”9 The trial is not constitutional if a juror is biased or prejudiced and remains on the jury.10 “It is a fundamental tenet of our Cassell’s French English Dict. (1982). See State v. Smith, 182 Ariz. 113, 115, 893 P.2d 764 (1995) (means “literally “to see to speak”).

U.S. CONST. amend. VII; WASH. CONST. art. I, § 21.

State v. Davis, 141 Wn.2d 798, 824, 10 P.3d 977 (2000); see also State v. Parnell, 77 Wn.2d 503, 507, 463 P.2d 134 (1969) (“The right to trial by jury assumes the right to an unbiased and unprejudiced jury. Accordingly, if one or more members of the jury panel are biased or prejudiced, the constitutional right to trial by jury is denied.”); McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S. Ct. 845, 78 L.Ed.2d 663 (1984) (“One touchstone of a fair trial is an impartial trier of fact -- ‘a jury capable and willing to decide the case solely on the evidence before it.’”) (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L.Ed.2d 78 (1982)).

Allison v. Dept. of Labor and Ind., 66 Wn.2d 263, 265-66, 401 P.2d 982 (1965).

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judicial system that inherent in a jury trial is a right to an unbiased jury.”11 “The very essence of due process would be denied if one or more members of a jury panel were allowed to remain as jurors while harboring a bias or prejudice toward one of the parties.”12 The voir dire process is crucial because it is the only means by which counsel and the Court can ensure that these constitutional principles are satisfied. Federal statutes set forth the minimum requirements for jury selection in federal cases: 28 U.S. Code 121 § 1861 (declaration of policy) 28 U.S. Code 121 § 1862 (discrimination prohibited) 28 U.S. Code 121 § 1866 (selection and summoning of jury panels). In particular subsection “c” sets forth grounds for exemption, disqualification, excuse and exclusion. 28 U.S. Code 121 § 1870 (challenges). Three peremptory challenges allowed. Multiple parties are considered as a single party for the purpose of making challenges. Court may allow additional peremptory challenges and permit them to be exercised separately or jointly. In addition the states have enacted laws that set forth the minimum requirements for jury selection in state cases, for example:

Cheney v. Grunewald, 55 Wn. App. 807, 810, 780 P.2d 1332 (Wash.App.,1989).

Allison, 66 Wn.2d at 265-266.

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Rev. Code Wash. 2.36.110 (duty of judge to excuse biased, indifferent or inattentive jurors); Rev. Code Wash. 4.44.130 (kind and number of challenges); Rev. Code Wash. 4.44.150 (definition of challenges for cause); Rev. Code Wash. 4.44.160 (general challenges for cause: failure to meet statutory juror qualifications; physical or mental defects); Rev. Code Wash. 4.44.170 (particular challenges for cause: actual and implied bias; health/physical problems); Rev. Code Wash. 4.44.180 (Definition of implied bias). Note that an employee of any party is subject to challenge for cause. This is an especially important provision when a defendant is a large employer or governmental entity that is likely to have employees in the jury pool. Trial courts have broad discretion in shaping the limits and extent of voir dire.13 It “serves the dual purpose of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.”14 The ultimate test is whether the court permitted the parties to “ferret out bias and partiality.”15

Murray v. Mossman, 52 Wn.2d 885, 887, 329 P.2d 1089 (1958); Lopez-Stayer ex rel. Stayer v. Pitts, 122 Wn. App. 45, 50-51, 93 P.3d 904 (2004).

Mu’Min v. Virginia, 500 U.S. 415 at 431, 111 S.Ct. 1899 (1991).

Lopez-Stayer ex rel. Stayer v. Pitts, 122 Wn. App. 45, 50-51, 93 P.3d 904 (2004).

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ENTER “JURY BIAS”16 Trial Diary17

The best voir dire of the day is done by Judge McD. After asking a few preliminary questions, he reads the neutral statement which starts off like this: “On June 7, 2004, airline pilot Captain DM struck his head while attempting to board a Holiday Inn airport shuttle bus.” At which point juror number 14, a 72 year old retired Boeing engineer hollers (yes hollers) out something along the lines of how disgusted he is that people won’t take personal responsibility for their own actions and have to blame someone else – the man should have watched where he was going! At which point juror number 1, a kind looking 48 year old respiratory therapist, exclaims “I agree – that is ridiculous!” At which point, the judge proclaims (yes proclaims), “Stop right there!” I glance at the defense lawyer G – he is as still as a piece of rock. Probably clapping inside with delight. I keep my face absolutely expressionless. I’m wondering if this is going to turn into a full scale jury revolt before the case has even begun. Judge McD has everyone’s attention. And the courtroom is completely silent. Up to now he has been jovial, warm and kind. He sternly tells the jury that he will not tolerate them Attorneys and trial consultants Greg Cusimano and David Wenner developed the American Association for Justice National College of Advocacy’s Overcoming Juror Bias program. Their seminal body of work involves a much greater in depth look at the issues than is provided in this booklet. See, www.jurybias.com.

Excerpt from my trial diary in a negligent hotel bus doorway case in August 2009.

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making decisions about the case before they have heard any evidence and he then tells numbers 14 and 1 they are excused. Other than their bodies rustling through the courtroom and out the door there is no other sound. Mind you, voir dire was not actually occurring when the outbursts occurred. So Judge McD doesn’t ask follow up questions of the jurors regarding what just happened. Instead he tells them of his disappointment with jurors who make snap judgments without giving the participants a fair shake. He then goes on to read the general voir dire questions which include such gems from the defense as “have you ever bumped your head by accident.” This, of course as you can imagine, creates a bit of levity since everyone has. My first question on voir dire is to ask who felt uncomfortable during the juror outbursts. I’ve decided to tackle it head on. Deal with it. If they are going to revolt so be it. Every juror raises their hand. They are all unsettled. I ask why and here is the first the response: “I was upset that he (the juror) would make up his mind just like that without hearing any evidence.” Others nod their heads in agreement. One juror goes so far as to say she is “glad” he is gone as he doesn’t deserve to sit on the jury. I ask if anyone else agrees with number 14’s position and no one raises their hand. By the end of the day (voir dire lasts all afternoon) we’ve chosen our jurors. Several are removed because of “McDonalds” but all in all they appear to be a fair group. And I’m pretty sure of one thing: regardless of their opinions, all of them will do their best to show they are not like jurors numbers 14 and 1. *** STRITMATTER KESSLER WHELAN COLUCCIO

Courtrooms across the country are experiencing the ever increasing phenomena of jurors who are skeptical and angry before a case has even begun. For decades, the American justice system has been under attack by special interest groups with “tort reform” as a political agenda.18 Cases are distorted and false claims of “skyrocketing jury awards” are made to convince the public that the justice system has run amok and is in need of an overhaul.19

“

Ending racial discrimination in jury selection can be accomplished only be eliminating peremptory challenges entirely. — Thurgood Marshall

”

The “McDonald’s hot coffee case”20 is the poster child for those trumpeting “out of control” jury verdicts.21 McDonald’s had received over 700 complaints regarding burns relating to coffee but continued to keep its coffee 45 to 65 degrees hotter than other restaurants.22 The plaintiff, Ms. Liebeck, was awarded $160,000 in compensatory damages for third degree burns over her private region that required eight days of hospitalization and skin grafting.23 The jury assessed $2.7 See generally Robert S. Peck, Tort Reform’s Threat to an Independent Judiciary, 33 Rutgers L.J. 835 (2002).

Id. at 835.

Liebeck v. McDonald’s Rests., P.T.S., Inc., No. CV 93-02419, 1995 WL 360309, at *1 (D.N.M. Aug. 18, 1994).

See William Glaberson, The $2.9 Million Cup of Coffee: When the Verdict Is Just a Fantasy, N.Y. Times, June 6, 1999, S4, at 1; Saundra Torry, Tort and Retort: The Battle over Reform Heats Up, Wash. Post, Mar. 6, 1995, at F7.

Id.

Peck, supra, at 835 n.3.

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million dollars in punitive damages against McDonald’s, representing two days of profits of its coffee sales.24 The trial judge later reduced the punitive damages to $480,000 (treble the award). There are dozens of other American lawsuits which have been reported in the media as hilarious examples of frivolous claims: the Texas woman who won $780,000 from a store owner on a claim that she broke her ankle tripping over a rampaging child (her own); the Los Angeles man who was awarded $74,000 for injuries suffered at the hands of a driver while he was stealing the car’s hubcaps; the Philadelphia woman awarded $113,000 for injuries sustained in a restaurant when she slipped on a spilled soft drink which she had thrown at her boyfriend during an argument. These stories have one thing in common: they never happened, except in the imagination of those who fabricated them. As Stanford Law Professor Deborah Rhode puts it, the media-hyped stories of frivolous lawsuits tend to be ‘long on folklore and short on facts.’”25 The media compound the attacks by reporting only the most extreme jury awards.26 A study of 3,300 articles in five newspapers over the span of twenty years found:27

Id.

Stuart M. Speiser, The Founding Lawyers and America’s Quest for Justice (2010).

Valerie P. Hans and Stephanie Albertson, Empirical Research and Civil Jury Reform, 78 NOTRE DAME L. REV. 1497, 1512 (2003).

William Haltom and Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis, pp.159-181 (University of Chicago Press 2004).

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• Plaintiffs’ victories are over-reported. News coverage reinforces the idea that plaintiffs are not only suing businesses with greater frequency, but also with greater success. • Awards are exaggerated. The verdicts selected for publication are far out of line with real-world amounts. • Tort reform advocates predominate in commentary and quotations in news articles. • Newspapers search out frivolous filings and wild charges. These anomalies dominate the news, along with huge class actions and mass torts. • Media coverage tends to downplay the human aspects of pain and suffering of people harmed by unsafe products or medical malpractice. Significantly more attention is given to the competing claims and money at stake than the actual experiences of the injured people. To this unbalanced reporting, add the proclamations of influential politicians. Former-President Bush used tort reform speaking points. He frequently declared that “[y]ou can’t be pro-small business and pro-trial attorney at the same time.”28 He warned that excessive jury awards were putting

See FDCH Political Transcripts July 20, 2004 Tuesday (President Bush Delivers Remarks at a Campaign Rally, St. Charles, Missouri, as released by the White House); see also FDCH Political Transcripts July 16, 2004 Friday (President Bush Delivers Remarks at a Campaign Rally, Beckley, West Virginia, as released by the White House); FDCH Political Transcripts July 14, 2004 Wednesday (President Bush Delivers Remarks at a Campaign Rally, Waukesha, Wisconsin, as released by the White House).

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good doctors out of business,29 despite the declining civil jury trial rate in both federal and state courts.30 This rhetoric is very clever. Message one, juries are out of control. Message two, the civil justice system is a “legal lottery.” These phrases are likely the result of focus group research showing this message is persuasive. Message three, plaintiffs claim to be victims. Using the term, “victims,” is often a code word for “welfare recipients.” Use of the phrase, “entitlement mentality,” is no coincidence and links plaintiffs to welfare. These propagandists understand that public assistance often evokes a visceral emotional response. The link to welfare also elicits images of welfare recipients who are personally responsible for their predicament and therefore are undeserving of help. It is the equivalent of wielding an image of a person driving a flashy Cadillac to pick up their welfare check. In other words, plaintiffs, like welfare recipients, are asking for a free ride at the public’s expense or worse, ripping the public off. Message four, plaintiffs do not take personal responsibility thereby violating a powerful cultural norm. Message five, the only ones benefiting from the system are “lawyers who file” the cases -- plaintiffs’ lawyers. Message six, the public is the loser in the system.31

Hans and Albertson, supra, at 1497 (2003) (citing Richard W. Stevenson, President Asks Congress for Measures Against Frivolous Suits, N.Y. Times, January 17, 2003, at A20).

See Hans and Albertson, supra, at 1503-04.

Greg Cusimano and David Wenner, supra., www.jurybias.com

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It is no wonder that many jurors have a hostile attitude toward plaintiffs.32 An interview of civil jurors regarding their decision-making process revealed, “on the whole, jurors voiced suspicions about the plaintiffs in their cases, examined their claims critically, and looked for ways that plaintiffs contributed to or might have fabricated their own injuries.”33 In a study of social perception, researchers concluded that people often persevere in their initial attitudes, even in the face of contradictory evidence.34 “Research suggests that jurors acting on emotions will likely fail to carefully consider evidence during deliberations.”35 Information consistent with a preferred conclusion is commonly examined less critically than information that is inconsistent with the conclusion.36 As a result, less information is needed for William Haltom and Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis, 297 (University of Chicago Press 2004) (“Abundant scholarly studies since the late 1970s have confirmed that juries have generally been less proplaintiff, more pro-defendant, and over-all more thoughtful and reasonable than pop tort reformers have alleged. That said, studies have also increasingly shown clear evidence that the reigning common sense about the lawsuit crisis has seized the imagination of jurors.”).

Hans and Albertson, supra, at 1507.

Ross, Lepper, & Hubbard, Perseverance in Self-Perception and Social Perception: Biased Attributional Processes in the Debriefing Paradigm, Journal of Personality and Social Psychology, Vol. 32 (1975); see also Lord, Ross & Lepper, Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence, Journal of Personality and Social Psychology, Vol. 63 (1982) (finding that people who enter a new situation with a prior attitude often interpret new information so as to strengthen that attitude, even if that information is contradictory).

Sandra Moriarty and Robert Trager, Selling Influence: Using Advertising to Prejudice the Jury Pool, 83 Neb. L. Rev. 685, 686 (2005).

Ditto & Lopez, Motivated Skepticism: Use of Differential Decision Criteria for Preferred and Nonpreferred Conclusion, Journal of Personality and Social Psychology, Vol. 37 (1979).

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a biased juror to reach their predetermined preferred conclusion.37 Mock trial experiments have confirmed that some jurors will hold plaintiffs partially accountable even when they are completely blameless as a legal matter.38 Such attitudes mirrored public opinion survey results that revealed concern that jury awards are “out of control.”39 A 2001 poll by two political scientists found that “the myth of the litigation explosion continues to be widely held and appears to be permanently entrenched.”40 Jurors see themselves as safeguards against frivolous lawsuits.41 Jury research has shown “that the single biggest indicator of jury decisions is what jurors understand and believe about the alleged lawsuit crisis.”42 When conducting voir dire, the courts have been slow to react to the tremendous negative shift in the public’s perception

“

The city of truth cannot be built on the swampy ground of skepticism… — Albert Schweitzer

”

Id.

Stephen Meinhold and David Neubauer, Exploring Attitudes about the Litigation Explosion, Justice System Journal 22, 112 (2001).

Id.

William Haltom and Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis, 298 (University of Chicago Press 2004).

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of the judicial process. Voir dire is heavily limited. Some jurisdictions do not allow any attorney voir dire. Judges’ questions are often superficial and unhelpful. General questioning by a court often produces silence or general answers. On the other hand, counsel may elicit an individual response and dig more deeply. This very case demonstrates the point. Here the court asked if anyone in the box had been the victim of a crime such as burglary. No hands were raised. Yet on individual questioning by counsel one of those in the box stated that she had been robbed (by which she meant burglarized).43 One touchstone of a fair trial is an impartial trier of fact -a jury capable and willing to decide the case solely on the evidence before it.44 In this era of jury bias, unless the right to jury trial is stricken from the constitution, the courts must allow appropriate and extensive voir dire by counsel. VOIR DIRE MISTRIAL – THE STORY OF A JURY THAT WAS TOO BIASED45 Something strange happened on the way to empanelling a jury the other day. So many prospective jurors were excused for cause that the judge had to declare a mistrial. This was not a notorious criminal trial, a highly publicized matter, People v. Hernandez, 94 Cal.App.3d 715, 720, 156 Cal.Rptr. 572 (1979) citations omitted.

See Smith v. Kent, 11 Wn. App. 439, 523 P.2d 446 (1974).

My article “Voir Dire Mistrial” published in WSTLA Trial News 2007.

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or a medical malpractice case. It involved straight forward personal injuries from an admitted liability car crash. Here’s how it unfolded. My co-counsel, Shellie McGaughey, is an insurance defense attorney and my best friend, whose client this time happens to be a plaintiff. We split voir dire and she proceeds with the first round. She focuses on the narrow issue they will be asked to decide and talks about knee injuries. She is engaging and charming. The jurors are smiling as they answer her questions. Next up is the defendant’s attorney. Her voir dire is designed to enhance jury bias. She tells the jury their job will be to “award” money to the plaintiff. “This case is about how much money you are going to give to the plaintiff.” Many express surprise and thank her for telling them what they will be doing. She asks if they think they are supposed to leave their “humanity, personalities, ‘who they are’, their common sense checked at the door when they become jurors.” They shake their heads no. Of course they are who they are. She tells them it is a civil case and involves awarding special and general damages. “Who knows what those are?” No one does. “Well, special damages are for things you can calculate like medical bills. General damages, well, the best known example of that is the McDonald’s case.” Now, the McDonald’s case happened over a decade ago and was a punitive damage verdict that was later reduced. But the facts are not important to the defense. “McDonalds” is used to trigger a visceral reaction.

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It’s time for the second round of voir dire and I am given fifteen minutes. I think -- it’s not enough. But I am proven wrong -- all that is needed is five. I stand before the jury and we begin. “Unlike the other attorneys, I am going to do the struck method. This is also called the Oprah or Phil Donahue method – I’d like you all to join in, don’t wait for me to single you out. We’d really like to hear from all of you. We left off with the defense attorney talking about general damages and how your job would be to determine compensation. I’d like to continue that discussion. “How many of you have been on a civil as opposed to a criminal trial (answer – none, all criminal). What was the burden of proof (answer -- beyond a reasonable doubt). Does anyone know what the burden is in a civil case (answer -- preponderance). Does anyone know what that means (no answer). More likely than not. “This is an admitted liability case. But if it were not, then you would be asked to decide whether the defendant more likely than not hit the plaintiff’s car forcing it off the road (collective answer – okay). Instead this is a case about damages. You will be asked to decide what amount of money is fair to

“ 34

But of a good leader, who talks little, When his work is done, his aim fulfilled, They will say, ‘We did this ourselves.’

”

— Lao-Tse

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compensate plaintiff for his injuries (heads nod). Now are any of you starting to feel uncomfortable that this will be your job (heads nod, but I continue)? Now add this fact: not only will you decide damages like medical bills, but also you will decide what amount should be paid to compensate him for pain and permanent disability (pause). And add this fact: in making your decision you will not be told of the defendant’s financial condition (collective fidgeting). Now, is anyone so uncomfortable that they will not be able to fairly decide what amount of damages will fairly compensate the plaintiff?” At this point about half of the jurors raise their numbers. I focus on juror number four in the box. She is in her twenties, soft spoken and clearly looks flushed and distressed. “I cannot enter a judgment against the defendant – I have no idea if it would force him into poverty. I do not believe that there should be money paid for ‘pain and suffering.’” Due to in limine orders I can’t reassure her that the defendant has ample insurance coverage and that his counsel is hired by that company to handle the defense. Instead, we talk about her deeply held beliefs which she states are so strong that she would not be able to follow the court’s instructions. I ask if she is certain of this, she says yes and I challenge her for cause. She is excused. Turning to the jury panel I say “well – that was scary!” They nervously chuckle. “I’m not trying to be mean or make this intimidating, but there are lots of courtrooms and sometimes there are cases where we should probably not sit and others where we would better serve. Maybe a civil case is not right STRITMATTER KESSLER WHELAN COLUCCIO

for you but a criminal case would be. Now, how many of you feel strongly like juror number four, that you would not be able to carry out the court’s instructions.” All of the numbers stay up. “Um, do any of you feel weakly?” No numbers go down. At that point, I say: “You’re Honor, I move to exclude all of these fifteen jurors for cause.” And sit down. As I watch the Judge, I sense her initial denial. She begins to individually question each juror in a professional, courteous way. I believe she thinks: “surely, I can get this matter back on track. These jurors really aren’t biased.” But as the minutes tick by and as the jurors are excused one after the other, the judge’s denial is replaced with incredulity and shock. “If I give you instructions which the law requires you to carry out, will you do so?” They answer “no, no, no.” She is upset and at one point in response to the loud angry protestations of one juror that his biases are so strong he would never be fair, she says: “I asked you specifically this question yesterday – could you be impartial and fair and you said yes.” The jurors tell the judge why they won’t be fair: • This kind of a trial – a car accident – any kind of civil case – is a waste of all of our time. • I’m angry – I don’t believe in the system. • Tort reform is my number two priority in life. • I will side with defendant.

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• I will not follow the court’s instructions. • I don’t believe in this type of case. • I won’t nail someone for pain and suffering damages. • I won’t award anything if I do not know the ability of the defendant to pay it. • I would not want to cause the defendant’s poverty. • Civil cases should be arbitrated or mediated, they have no place in a courtroom. • I have lived with scoliosis and pain all my life – I would not put dollars on pain and suffering (Judge: you could but you won’t – I won’t). • I’m a contractor and have been sued before – I am sick of frivolous lawsuits. • I stand on the principle that these types of lawsuits are frivolous and I am completely biased against them. One after one the jurors decline to be rehabilitated. They look the judge straight in the eyes and tell her they will not obey her and they will not carry out the law. Four of the fifteen are left on because they end up saying that though they are biased, they will “try” to follow the court’s instructions. I jot down their numbers because I still have two-thirds of my time for voir dire left. But that won’t be necessary. Twenty minutes have passed. The judge is done with her questioning. A total of twelve jurors have been excused for cause. There are not enough jurors left to allow for STRITMATTER KESSLER WHELAN COLUCCIO

peremptories – even if voir dire were to end right then. A mistrial is declared. The courtroom feels hollow. We retreat to the judge’s chambers and look at each other and we all feel the same way. We are judge, plaintiff attorney, defendant attorney, and have committed our lives to the practice of the law. We are dedicated to upholding the integrity of the judicial system. We honor and respect the law. What we witnessed was a juror mutiny. LEGAL RULES GOVERNING THE EXERCISE OF CHALLENGES The jury selection process is often referred to as the “jury de-selection process.” “The court, in the realization that the purpose of the voir dire is to afford the parties a trial by a qualified, unbiased, and impartial jury, should at all times be on guard in its questioning in order to assist counsel in the exercise of his or her peremptory challenges and challenges for cause to eliminate those persons with an interest or bias.”46 Techniques and decisions regarding juror voir dire are subjective and based upon the attorney’s trial strategy.47 Trial counsel “is in the best position to determine whether any potential juror should be questioned and to what extent.”48 See Labbee v. Roadway Express, Inc., 469 F.2d 169 (8th Cir. 1972).

State v. Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d 932 (1998).

State v. Murphy, 91 Ohio St.3d 516, 539, 747 N.E.2d 765 (2001).

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When a trial court limits a litigant’s use of proper questions, the trial court prevents the party from making an intelligent decision regarding the use of peremptory challenges.49 Although the judge has a duty to restrict the examination of the prospective jurors within reasonable bounds to expedite trial, the fixing of an arbitrary time limit for voir dire in advance of trial is dangerous and could lead to reversal on appeal.50 To preserve error from the denial of the opportunity to conduct voir dire, the complaining party has the burden of making a record to show the specific manner in which they intended to pursue the inquiry.51 LEGAL RULES OF PEREMPTORY CHALLENGES Traditionally, a peremptory challenge is one “exercised without a reason stated, without inquiry and without being subject to the court’s control.”52 The peremptory

“

Learn to laugh; it is a discipline to be mastered. Let go of the everlasting burden of always needing to sound profound. — Richard J. Foster

”

Shipley v. State, 790 S.W.2d 604, 609 (1990).

People v. Hernandez, 94 Cal. App.3d 715, 156 Cal. Rptr.572 (1979); State v. Haskins, 188 Conn. 432, 447, 450 A.2d 828 (1982).

Urista v. Bed, Bath & Beyond, Inc., 245 S.W.3d 591 (2007).

Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965).

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challenge allows litigants to strike potential jurors “without interference, and without accountability to the court....”53 If an attorney simply does not like the look in the eyes of a potential juror, a judge cannot stand in the way of a peremptory challenge. Jurors may be excused based on “hunches,” and even arbitrary exclusion is permissible, so long as the reasons are not based on impermissible group bias.54 Unless there is a conflict of interest, plaintiffs collectively are entitled to three peremptory challenges and defendants collectively are entitled to three peremptory challenges: Each party shall be entitled to three peremptory challenges. When there is more than one party on either side, the parties need not join in challenge for cause; but, they shall join in a peremptory challenge before it can be made. If the court finds that there is a conflict of interest between parties on the same side, the court may allow each conflicting party up to three peremptory challenges.55 Even when defendants are antagonistic to one another, they are entitled to only three peremptory challenges collectively.

Greene v. United States, 486 F. Supp. 199, 200 (W.D.Mo. 1980).

People v. Hamilton, 45 Cal.4th 863, 900-901 (2009).

Rev. Code Wash. 4.44.130 (emphasis added); see also State v. Pettilla, 116 Wash. 589, 91-92, 200 P. 332 (1921) (“The overwhelming weight of authority . . . requires codefendants to join in the peremptory challenges, and we are satisfied that this is the correct and better rule.”); Colfax National Bank v. Davis Implement Co., 50 Wash. 92, 93, 96 P. 823 (1908) (“Either party may challenge the jurors, but when there are several parties on either side, they shall join in the challenge before it can be made.”).

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In Crandall v. Puget Sound Traction Light & Power Co.,56 a single plaintiff brought suit against multiple defendants alleging concurrent negligence. The court allowed the defendants, collectively, three peremptory challenges. The defendants were unable to agree on how to use the third peremptory challenge, and claimed a right to additional peremptory challenges. They argued that because “the interests of the defendants in the result of the trial are, in substance, antagonistic to each other” the defendants “should be regarded as separate parties for the purpose of exercising peremptory challenge.”57 The Crandall court, noted that the right to peremptory challenges “is wholly a creature of statute,” and held “it was not error to deny the right of a separate peremptory challenge to the defendants.”58 The United States Supreme Court first addressed racial discrimination within the jury selection process in Strauder v. West Virginia.59 The Court reversed the conviction of a black defendant tried in a West Virginia court under a state law mandating jury venires composed only of white males. It held that statutory exclusion of blacks from the jury venire violated the Equal Protection Clause of the Fourteenth Amendment.60 After Strauder, some prosecutors used peremptory challenges to exclude minorities from juries.

77 Wash. 37, 137 P. 319 (1913).

Id. at 39-40.

Id. at 40.

100 U.S. 303, 25 L.Ed. 664 (1880).

Strauder at 309.

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The Supreme Court addressed the discriminatory use of peremptory challenges by prosecutors in Swain v. Alabama.61 It held the Equal Protection Clause of the Fourteenth Amendment applied to the prosecutor’s use of peremptory challenges in criminal cases. However, the court adopted a standard of proof requiring that defendants demonstrate a systematic use of peremptory challenges for discriminatory purposes. In the years following Swain, many complained this standard made it virtually impossible to prove governmental peremptory challenges were improperly motivated to exclude racial minorities. In Batson v. Kentucky,62 the Supreme Court held an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person’s race. If the defendant makes a prima facie showing of discriminatory strikes, the burden shifts to the state to offer racially-neutral explanations for the challenged members. If the race-neutral explanation is tendered, the trial court must decide whether the defendant has proven purposeful discrimination. The race-neutral explanation

“

The conscious mind may be compared to a fountain playing in the sun and falling back into the great subterranean pool of the subconscious from which it rises. — Sigmund Freud

”

500 U.S. 614, 111 S. Ct. 2077 (1991).

476 U.S. 79, 106 S. Ct. 1712 (1986).

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need not be persuasive or even plausible.63 It will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The ultimate burden of persuasion as to racial motivation always rests with the opponent of the peremptory challenge.64 Batson was extended to civil cases in Edmondson v. Leesville Concrete Company, Inc.65 There an African American construction worker was injured on a job site accident. Defendant used two of its three peremptory challenges to remove other African Americans from the prospective jury. Plaintiff’s request that defendant be required to articulate a race neutral explanation for striking of the jurors was denied by the trial judge but overturned by the Supreme Court. The principles of Batson may be extended to other distinct groups, including gender.66 Except for Fourteenth Amendment considerations, attorneys may exercise peremptory challenges without court interference. But reasoned challenges require adequate opportunity to explore the opinions and values of the panel. Questioning during voir dire may reveal perceptions of potential jurors that may serve as the basis for the exercise of a peremptory challenge.67 Rice v. Collins, 546 U.S. 333, 126 S. Ct. 969, 973-974, 163 L.Ed.2d 824 (2006), quoting Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L.Ed.2d 834 (1995).

State v. Tyler, 723 So.2d 939, 942 (La. 1998), cert. denied, 526 U.S. 1073, 119 S. Ct. 1472, 143 L.Ed.2d 556 (1999).

500 U.S. 614, 111 S.Ct. 2077 (1991).

See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct 1419 (1994).

Rev. Code Wash. 4.44.140 (“A peremptory challenge is an objection to a juror for which no reason need be given, but upon which the court shall exclude the juror.”).

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[T]he fairness of a trial may depend on the right of counsel to ask voir dire questions designed to discover attitudes and biases, both conscious and subconscious, even though they “would not have supported a challenge for cause.” . . . Juror attitudes revealed during voir dire may indicate dimly perceived, yet deeply rooted, psychological biases or prejudices that may not rise to the level of a for-cause challenge but nevertheless support a peremptory challenge.68 In Barrett, the trial judge did not include voir dire questions about the prospective jurors’ attitudes towards tort reform. The appellate court remanded the case for a new trial because this omission “prevented appellant from detecting possible bias and from intelligently exercising his peremptory challenges.”69 One issue that may need to be clarified with the judge before voir dire is whether the plaintiff can reserve a peremptory challenge under the following circumstances: Both sides have each exercised two peremptory challenges. It is now the plaintiff’s turn to exercise a third. The plaintiff, however, is satisfied with the panel and does not wish to exercise a peremptory because the next juror in line is hostile. The defendant then exercises its third peremptory challenge and Barrett v. Peterson, 868 P.2d 96, 98 (Utah App. 1993) (quoting State v. Worthen, 765 P.2d 839, 845 (Utah 1988)); see also State v. Tharp, 42 Wn.2d 494, 499-500, 256 P.2d 482, 486 (1953) (“The purpose of the inquiry is to enable the parties to learn the state of mind of the prospective jurors, so that they can know whether or not any of them may be subject to a challenge for cause, and determine the advisability of interposing their peremptory challenges.”).

Id. at 104.

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the hostile juror moves into the jury box. The plaintiff may then exercise a third peremptory challenge on that particular juror. In Portch v. Sommerville,70 the plaintiffs accepted the jury panel without exercising any peremptory challenges. But after the defendants exercised their final peremptory challenge, plaintiffs sought to excuse the newly added juror. The trial court ruled the plaintiffs had waived their right to exercise peremptory challenges. The Court of Appeals disagreed, finding the “court’s refusal to allow the [plaintiffs] to exercise any peremptory challenge was based on reasoning that is not supported by Rev. Code. Wash. 4.44.130 or .210. Accordingly, the decision was an abuse of discretion.”71 Any waiver of peremptory challenges applies only to the jurors empanelled at the time of the waiver, and not to jury members empanelled subsequent to the waiver. LEGAL RULES OF CHALLENGES FOR CAUSE Jurors should be excused for cause if their particular beliefs will “prevent or substantially impair the performance of their duties as a juror in accordance with the instructions and oath.”72 Bias, in its usual meaning, is an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear the juror’s state of mind leads to 113 Wn. App. 807, 55 P.3d 661 (2002).

Id. at 811; see also State v. Schmidt, 141 Wash. 660, 664, 252 P. 118 (1927) (“[A]fter the panel is filled and passed for cause, a party waiving the right to a peremptory challenge waives it only as to the jurors then in the jury box.”).

Wainwright v. Witt, 469 U.S. 412, 105.

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the natural inference they will not act with impartiality.73 Cause exists even when a juror declares they are able to remain impartial, if facts revealed from the juror’s responses as a whole reasonably imply bias, prejudice or the inability to render a judgment according to the law.74 For example, bias is implied when a juror is employed by a party. This is frequently seen when the party is the government. Rev. Code Wash. 4.44.180(2) provides that potential jurors are disqualified for implied bias if they are “in the employment for wages” of a party to the case. Martini v. State, 121 Wn. App. 150, 163-168, 89 P.2d 250 (2004).75 Spouses of people employed by a party are also disqualified from serving as jurors.76 In reality, few people are entirely impartial and a court is not required to remove a prospective juror for cause if the juror convincingly affirms his ability to lay aside any misgivings and fairly weigh the evidence.77 An initial “leaning” is not disqualifying if it represents skepticism rather than an unshakeable conviction.78 The prospective juror is presumed qualified and competent, and the burden of proof is on the party advancing the challenge to prove otherwise by a preponderance of evidence.79 Hyundai Motor Co v. Vasquez, 189 S.W.3d 743, 751 ( 2006).

State v. Ball, 824 So.2d 1089, 1102 (2002).

The Martini decision was the result of the efforts of SKWC partners Keith Kessler, Brad Moore, Garth Jones, and Ray Kahler.

Ottis v. Stevenson-Carson Sch. Dist., 61 Wn. App. 747, 758-759, 812 P.2d 133 (1991).

State v. Robinson, 341 Mont. 300, 177 P.3d 488 (2008).

Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 91, 94 (2005).

Ottis v. Stevenson-Carson School Dist., 61 Wn. App. 747, 754, 812 P.2d 133 (1991).

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But a court abuses its discretion if it fails to grant the challenge when a juror’s statements during voir dire raise serious doubts about the juror’s ability to be fair and impartial.80 “Coaxed recantations” in response to leading questions by counsel “fail to demonstrate” the impartiality required of jurors.81 Due process requires a fair trial, and the right to challenge a potential juror for cause is an integral part of a fair trial.82 In Dalton v. State,83 a new trial was granted where a juror failed to disclose whether he had any “ethical, moral or philosophical view that would cause him discomfort in entering a money judgment on behalf of plaintiff.” The court held it was an abuse of discretion to disregard the juror’s bias and nondisclosure of such bias: On its face, the statement that the plaintiff in the action is an opportunist trying to profit from her child’s death exhibits an actual bias on his part against Ms. Dalton and her cause of action. If Mr. Polumsky had revealed his bias during voir dire, the plaintiffs could have challenged his selection as a juror for cause.84

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All truth is a species of revelation.

— Samuel Taylor Coleridge

State v. Golie, 332 Mont. 69, 134 P.3d 95 (2006).

State v. Braunreiter, 344 Mont. 59, 185 P.3d 1024 (2008).

People v. Rhodus, 870 P.2d 470 (Colo. 1994).

115 Wn. App. 703, 63 P.3d 847 (2003).

Id. at 715.

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Not only does extensive voir dire aid in discovering juror bias, but it also minimizes the use of stereotyping and profiling.85 Though stereotypes are often gross generalities,86 attorneys still rely on them when not given adequate time to collect more detailed information about potential jurors. Expansive voir dire allows attorneys to determine whether jurors are biased without resorting to such antiquated notions.87 What this all ends up meaning, is: 1) peremptory challenges should be granted for any or no reason whatsoever so long as the Fourteenth Amendment isn’t being attacked; and 2) cause challenges should be granted when bias is demonstrated on a multifactorial and individualized basis. ADJUSTING THE ATTORNEY MINDSET IN APPROACHING VOIR DIRE88 The jurors are the ones who are supposed to “speak the truth” in voir dire. This is not a time for attorneys to dazzle the jury with brilliant manipulative dialogue.

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Of what use is eloquence? He who engages in fluency of words to control men often finds himself hated by them. — Confucius

”

Valerie P. Hans and Alayna Jehle, Avoid Bald Men and People with Green Socks? Other Ways to Improve the Voir Dire Process in Jury Selection, 78 Chi.-Kent L. Rev. 1179, 1191 (2003).

Neil Feigenson, Legal Blame: How Jurors Think and Talk About Accidents 42 (2000) (“[D]espite popular impressions to the contrary, research shows that individual juror demographic characteristics (such as race, gender, and socioeconomic status) are generally weak predictors of juror judgments.”).

Id. (citing Barbara Allen Babcock, Jury Service and Community Representation, in Verdict: Assessing the Civil Jury System 460, 463 (Robert E. Litan ed., 1993)).

Jury Consultant David Ball provides great insight and practical advice on voir dire in David Ball on Damages, The Essential Updated Second Edition, NITA (c) 2001, 2005. Chapter five is a must read for any plaintiff attorney.

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Voir dire is interactive. It is the “hello, nice to meet you, are you the right person to sit in judgment” part of the case. Yet, for many attorneys voir dire is torture. There is a reason it is not adequately taught if at all in law school. We need to think like a lawyer but communicate like a good neighbor to a large group of people we know almost nothing about. The approach needed is wholly different from any other type of legal proceeding. Here, we compare the intended audiences to highlight the different strategies required. MOTION PRACTICE

VOIR DIRE

Judge will have read briefs

Jury has no idea what the case is about

Judge understands legalese

Jury doesn’t understand legalese

Attorney presents and argues the facts and law

Attorney is to avoid specific facts and not argue the law

Judge entitled to hear and given Jurors not entitled to hear all all relevant information relevant information Attorney utilizes logical analytical argument

Attorney not allowed to argue

Judge believes strongly in the inherent integrity of legal process

Jury is uncertain, skeptical and at times cynical of the legal process.

Judge is adequately paid and wants to be there

Jury inadequately paid and usually doesn’t want to be there

It is no wonder so many of us dread voir dire. Compounding our distress, judges generally do not allow adequate time for voir dire.

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Trial Diary89

Judge D gives us one block of 20 minutes per side to do voir dire. Even M (the defense lawyer) has to ask again â&#x20AC;&#x201C; do you mean 20 minutes one time total? Uh Yeah. But M doesnâ&#x20AC;&#x2122;t need to worry. The two dozen jurors present as a nice looking panel except for a few people who I know will be problems. Judge D asks quite a bit of questions which is nice. But by the time he is done, I know nothing else about the jurors other than they seem like nice citizens. I start off by asking a soft vague question about whether anyone has any concerns at this point. The judge has given the introduction and read the neutral statement. And with no prompting the jurors begin raising their hands and talking about tort reform, ambulance chasing parents, their concerns as to why the 16 year old plaintiff is at school and not at court, and the other disparaging comments that we are all growing used to hearing. 20 minutes seems like 5. I flush out the jurors. But with so little time, I can go no further in the process. Last week in the med mal case, Kevin flushed them out for 40 minutes and I then was able to finish the job. Here, they are out there, fluttering around and I just sit there smiling at everyone, looking serene and happy because Oh. How lovely. We are doing voir dire. How wonderful. Gaaaah.

Excerpt from my trial diary of a car collision case in October 2010.

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It is a horrible feeling to know that we are starting off on a case with half of the jurors committed to tort reform. Am I such a miracle worker that I can get them to “speak their hearts” and do everything else needed to get them to basically invite themselves off the jury in one round. No No No. I am not. Wish I was. And I sit down, feeling like a failure because I know some of them should have been bounced off. But that lasts only a millisecond because trial is no time to have a pity party. M is up. M starts off really nice. He’s got a nice presence, nice speaking voice: How many of you had popcorn with the voir dire movie. What did you learn this is all about – justice. Voir dire – sounds formal means speak from the heart. We’re going to be doing the Oprah method. Dang, I’m impressed but not for long. Because this is what he then does. He goes thru the panel one by one old school style and wastes time for no other purpose than to waste time. First, he asks if they have a bumper sticker. No lie. This was done in like the 1980s when we thought it was cool. I glance at Judge D – he is the consummate judge. No expression sours his face. But I imagine he’s thinking – this is Why I Only Let Them Have 20 Minutes. Jurors 1 through 29 each have to go through this exercise. Most of them have their alma mater decals nothing else. Many don’t have bumper stickers so M then asks them what would they have if they were to have one. Not a single juror guesses. They are trying to figure out why he’s asking them such a dumb irrelevant question. I’ll tell you why – to minimize and trivialize this case. And to waste time. STRITMATTER KESSLER WHELAN COLUCCIO

Second, he says: imagine instead of $10 you walk out of here with $1,000 for jury service for discretionary income that isn’t from your pay check; what would you do with that extra money. This time he jumps around targeting various jurors. The jurors answer good naturedly – pay off my mortgage, my credit card, go shopping. But again, they are thinking – what kind of lawyer mumbo jumbo is this. I’ll tell you what – the insinuation is this is a lawsuit lottery and the money given will be free money for the plaintiff to blow. I catch myself watching the second hand as it is ticking in slow motion around the courtroom clock. Tick tock tick tock blah blah. Fifteen of his minutes have passed. He gets to his first germane question. It is a followup to mine regarding the amount of force relationship to type of injury. The judge tells him he has one minute left and he ends with: Can you put aside your sympathies if you meet a talented impressive young person. Does this mean he’s going to be nice after all? We pick the jury and break for lunch. *** Perhaps less than one minute per juror would work if we lived in a happier, more transparent time. But I think not. With these disadvantages piled around us, we have no room to misstep during voir dire. We have to be spot on, make every second count, and hope for the best. We cannot afford our bad habits.

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First, we talk too much. “Thank you for coming… we know how little you get paid for your service… it is your civic duty… isn’t the weather great…” These statements waste time. They are patronizing. We look like we are procrastinating. Add to this our love of speeches. Drawn out stories about our children, friends or great aunt Sally. Lectures about the Constitution or some other artificial construct through which we hope to send a subliminal message. The more we talk, the more we don’t hear. The less we hear, the less we learn about the jurors. When I meet someone for the first time, there won’t be a contest as to who will talk the most. After our lunch, you will leave the restaurant with half your meal in a box. My plate will have long since been taken away in all of its spic and span glory. And not because I rushed to gobble it up. You see, I am much more interested in learning about you than in talking about myself. I will ask you question after question. Many of the questions will just be simple expressions, like – really… oh my!... geez… no… why… when. Those little sounds from me will encourage you to continue. I will be interested and engaged because I really do care to hear what you have to say. It will fascinate me. And all the while as you are talking, not only will I be listening and learning about you, I will be eating. This (except for the eating part) is how the dynamic should work in voir dire. Second, we don’t know how to act. We are in suits. They are dressed casually. We stand. They sit. The lawyer in us wants to grill each juror. To flip them inside out, to make sure they

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aren’t biased and will be fair. They know we want to do this to them so they erect a wall. They find power in their numbers. The great divide must be breached and it is up to us. We have to go over to the other side. We have to do it extremely quickly. People form impressions within one-tenth of a second.90 We need to be every day people kind of lawyers. This means that we have to lighten up. Instead of scowling, we need to smile. Instead of trying to impress everyone with our vast knowledge, we need to show humility. Our language needs to be from the current decade. We need to be real. And we need to focus all of our energy on connecting. Third, we are hoarders. We love data, details, and outlines. We collect, organize, analyze and scrutinize every single little bit of information we can find. Since time is not on our side, the more junk we collect, the greater the likelihood that we will never be able to see the jurors clearly. “What bumper sticker is on your car… what television shows do you watch… what magazines do you read…” These questions are generally a waste of time. Quality not quantity is absolutely the best policy in voir dire. Fourth, we are scared. We tip toe around the edges of a delicate subject. We don’t want to contaminate the jury by raising a negative issue. But this wholly defeats the purpose of voir dire. If there are concerns, voice them. If there are worries, share them. Better to find out who cannot be fair now, rather than later.

Janine Willis and Alexander Todorov, First Impressions – Making up your mind after a 100-Ms exposure to a face, 17 Psychological Science 592 (2006).

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Fifth, we want to be right. We are impassioned advocates taking up the gauntlet on behalf of our deserving clients. We are the way the truth and the light. And when a juror doesn’t agree with us, that does not sit well. We may begin to argue with them. We may exhibit negative, even aggressive body language. We may want to educate them. Take the McDonalds case that almost always comes up during a tort trial. “Stella was not driving when she pulled the lid off the coffee... Her grandson was driving and had pulled over so she could add cream and sugar... Liquids at 180-190 degrees can cause third degree burns in two to seven seconds... Those types of burns require skin grafting, debridement and whirlpool treatments… She had $20,000 in medical bills… California has punitive damages and we don’t.” What do we gain from being “right” in voir dire – nothing. Once you one-up a juror, watch the body language. The crossed arms across torsos. The recoil as you approach. The walls close. And you are right back where you started, on the other side of a big divide. We must stay focused. We cannot afford ineffective voir dire. We must quickly learn the core values of the jurors. Otherwise, challenges cannot be intelligently exercised. Biased jurors left on a panel will doom a case.91

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We are more alike, my friends, than we are unalike. — Maya Angelou

I take no position on the use of jury consultants during voir dire. There are pros and cons. Generally only larger cases can justify the expense. For an interesting article written by a non-lawyer on the subject, see Matthew Hutson, Unnatural Selection, Psychology Today (2007).

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TIPS TO ESTABLISH A HUMAN CONNECTION Here are some thoughts on how to immediately and effectively connect with a jury: • Stand and face the panel • Own the courtroom floor, don’t stand still, don’t pace frantically either • Maintain proper interpersonal distance, don’t stand too far away, don’t get too close • Don’t think of it as rocket science, think of it as chit chat… organized, focused chit chat • Pay attention to body language – yours and theirs • Uncross your arms • Don’t stick your hands in your pocket • Don’t hold your hands behind your back • Don’t read questions • Make sure all the jurors can hear you • Give to get • Don’t write down answers (there’s not enough time) • Speak up • Lean in slightly towards the juror you’re speaking with • Invite the jurors to speak as a group if the court allows • Don’t use a podium unless the court requires it • Make eye contact with everyone, somehow, and don’t look like an FBI agent while you’re doing so • Be animated, friendly, engaging, interested, open, genuine • Use open ended questions

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• Don’t advocate • If you feel phony guess what… • Encourage the formation of groups • Listen to the answers and deal with them • Mirror • Don’t paraphrase answers • Stop talking so much – the jurors are the ones we’re interested in hearing from • Give tidbits of information about the case, but don’t make an opening statement – the jurors will see right through you and the judge won’t be too happy either • Proactively transition between jurors instead of reactively jumping around • Be polite and respectful to everyone always • Don’t call a juror by their first name, instead use Mr, Ms, or Juror number • Ask the judge how the jurors should be addressed • Relax your face muscles and let them speak too • If the jurors are answering “yes” and “no” then wake up and smell the coffee – you’re doing it wrong • Don’t point • Do gesture palm side up • Keep track of the responses somehow and highlight problem or question mark jurors after each round • Do not spend more than half your time on liability • Unless you have a special knack for keeping track, have someone help you

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• Make sure you have heard from all the jurors • Listen to your intuition • If you trust their intuition, listen to your assistant • Be extremely courteous and deferential to the trial judge • Be civil and courteous to the other lawyer • Don’t roll your eyes • Don’t have your client assist you • Don’t spend all of your time on the very last row of jurors unless there is a chance they will make the box • Don’t look scared even if you are, but it’s fine to admit to being nervous • Embrace the cliché -- honey works better than vinegar • Embrace a touch of levity whenever appropriate and natural • Don’t allow negativity to permeate and overwhelm the proceeding • Even when striking jurors, aspire to the positive LISTEN… WITH HEART, MIND, BODY AND SOUL The defense lawyer is following up on the general question of people who have had loved ones injured in accidents. Several jurors have their hands raised. The gentleman on the left side of the front row in the box is next. I’ve been watching him a bit intently because he looks slightly upset. He says that one of his children was killed in a car crash years ago. I feel myself grow cold and still. You can feel the group catch their breath. The defense lawyer thanks him and moves onto the next

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witness. I’m thinking – are you kidding me. The juror’s eyes are downcast and he looks pasty and slightly sweaty. Another ten minutes pass. The first thing I do during my round is to express my sorrow and ask the juror if this is the kind of case he can bear to sit through. He cannot. The judge quickly excuses him.92 We are not naturally good listeners. We want to fix, solve and convince. Our minds go quickly down rows of linear paths. This point leads to this point leads to this point. We think of listening as being a passive act. But communication requires more than one person. Engagement has to occur. If we don’t listen, we are only talking to ourselves. Standing alone in the midst of a large panel of prospective jurors can be intimidating. We want to look competent. Like we are doing it correctly. We want to be fluid and so as the jurors provide answers we may be intellectually preparing for the next question. According to pop statistics, we talk at the rate of 120 to 150 words a minute but think as fast as 400 to 800 words a minute. This creates a likelihood that we will not be closely listening and engaging with the venire. Multitasking is a skill. But one that only works if more than two things can actually be performed at the same time. Take the spouse or child who has waited all day for your attention. You walk in the door, issue a greeting and the loved one launches into a story of major importance. You are listening with one ear, putting down your things, pulling off your coat, hanging it, and shutting the closet door. “Hmm, Memories from a truck versus car crash trial in 2004.

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hmm,” you respond and the story is over. Amazingly, you are now being accused of not hearing “a single word that I’ve said!” You protest -- “no, I was listening.” But this has happened before. You are challenged to “repeat what I just said.” The hurt looks from your loved ones make you feel guilty. Even if you repeat the words correctly, you didn’t act like you cared. It is no wonder that jurors feel hurt, embarrassed, resentful when we do not pay attention. When asking a juror to share intimate details in front of a room of strangers, we had better show interest in the answers. When we listen, we need to show the other person we are listening. Be absolutely still. Focus only on the speaker. Get that mind to stop wandering. Look interested. Repeat important points. Mirror. Respond appropriately. GIVE EVERYONE AN OPPORTUNITY TO SPEAK On one hand of the spectrum are “the talkers.” They will usually self identify within the first few minutes. Question – up goes their hand. Next question – up goes their hand. If we don’t proactively turn their volume down, this small minority will drown out the remaining jurors. Our ability to fairly manage the discussion will be noticed. Letting Ted the Talker overly dominate voir dire will cause the remaining jurors to be irritated not only with him but with us. At the other end of the spectrum are the quiet ones. They may be shy. They may be “stealth jurors hoping to get on the jury to corrupt it. Or maybe they’re just savvy. 60

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After my former law partner Pat LePley and I tried a case to verdict in 2000, the presiding juror met me for lunch. I wanted to get further insight into the deliberations. He apparently wanted to ask me out on a date. After getting past that little bit of awkwardness, I convinced him to write an article for the WSTLA Trial News publication. I thought members would be interested in what he had to say. He was a librarian for a local college and here is a brief excerpt from his story: For the second time in three years I had been called to serve jury duty and without having any valid excuses not to, once again found myself in downtown Seattle, in Room C-701 of the King County Courthouse After checking in with the clerkâ&#x20AC;&#x2122;s office and filling out the biographical form, I sat down and started reading a book, as those around me read, napped, stared at the walls, or had animated conversations on their cellular phones that disturbed those of us who were reading, napping, or staring. The wait was as I remembered it, interrupted only by a video explaining our responsibilities as jurors, and then Judge Yâ&#x20AC;&#x2122;s presentation on what we should expect as jurors. Eventually a voice called my name. I lined up with the others called and we followed our bailiff in double file to the courtroom, looking very much like ducklings following their mother. When we got to the courtroom we sat down in the order of our numbers, as shown on the cards we were given. And then it was time for the voir dire process. STRITMATTER KESSLER WHELAN COLUCCIO

Voir dire as I understand it is the process by which attorneys attempt to select a jury most favorable to their case. In fact, I’ve read where some attorneys believe a case is won or lost during jury selection. My approach in voir dire is to speak the truth when asked, but not to volunteer anything. I’ve noticed some prospective jurors use the voir dire process to volunteer their life stories. As for me, since I’m a pretty boring person, I try not to inflict my boredom on others. So I sat quietly as the judge and attorneys asked their questions, responding by raising the card with my number when appropriate and not saying anything extra. As it turns out, my minimalist approach to voir dire ended up in my being the last person seated on the jury (note about voir dire: the more you talk as a prospective juror, the less likely you will be chosen). That’s right. We never heard him speak during voir dire and he ended up being the presiding juror. WAYS TO KEEP TRACK The bailiffs provide lists of the jurors’ names and grids. One approach is to use the grids for the twelve jurors in the box and then the rest who are sitting on the benches need to be tracked on a separate page. Write key information in the box/grid or use sticky notes. The sticky notes work better because when jurors are moved around after challenges, the notes can be easily moved too.

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Another approach is to forego the grids and use a chart. This is what I do, because I can’t read my own handwriting and prefer to use a computer. The chart can be in either Excel or Word. Depending on the case, I create columns for issues that I want to focus on. “X’s” mark the boxes that apply to each juror. Information is added as voir dire progresses. Color coding is used to highlight jurors that need to be challenged. Here is a sample grid from a vehicle versus child pedestrian trial:

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Make whatever system you use very simple. If the case is large enough to justify the expense, consider using a reputable jury consultant. If you do so, bring a motion in limine to prevent the other side from commenting on that fact. Tell the jury right away that so and so will be assisting with voir dire but will not be attending the rest of the trial. If the case isn’t large enough, consider having a colleague assist. Many plaintiff attorneys look for voir dire opportunities. “Doing it” is the best way to get better at voir dire. Bring a paralegal or assistant who has good intuitive people skills. New on the computer horizon, expect to see more specialized software programs. iJuror, an iPad app is currently selling for $14.99. While the notion is intriguing, there are substantial limitations in the conceptualization and execution of available programs. EXERCISING PEREMPTORY CHALLENGES A young attorney told me this story. The questioning phase had ended. The judge took peremptory challenges at side bar. The attorney consulted with her assistant. Both sides then advised the court which jurors were to be excused. The judge made note of the numbers and counsel took their seats. The judge began reading off the numbers and in growing horror the attorney realized that she had mixed up the seating chart. She watched helplessly as the jurors she wanted to stay left the room. Remaining were those she thought were stricken.

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Before trial begins the court will advise counsel of the number of peremptory challenges available to each side. If there are alternate jurors the judge will allow an additional peremptory challenge either directly to the specific alternate, or to the jury as a whole. Some judges conduct the peremptories at side bar. Others require the parties to state the peremptories to the full panel. Some judges will allow you to strike any juror whether inside or out of the box. Others require the strikes to be only inside the box. Some judges fill the box as the peremptories are made. Other judges leave the seats empty. Some judges designate the alternate. Others wait until the end of trial. It would be nice if there was uniformity amongst the judges. But since there is not, make careful note of each judgeâ&#x20AC;&#x2122;s procedures to avoid confusion. Peremptory challenges should be made respectfully, without apology and with as much kindness as possible. Court:

Counsel, do you wish to exercise a peremptory challenge?

Counsel: Thank you your Honor, members of the panel. Plaintiff will thank and excuse Juror number X or NAME, at this time. Thank you. Court:

Juror number X or NAME, thank you for participating in these proceedings. You are now excused. Please report back to the jury room. Thank you.

Each juror should be methodically and intuitively evaluated within the few seconds the court allows between strikes.

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Tactical decisions should be made as to which of the succeeding jurors will be seated should challenges be made or not. Jurors who express strong negative viewpoints on the following issues or display the following characteristics should be considered for exclusion: • Significant discomfort with the core issues to be decided • Lack of compassion • Disrespectful • Unable to meet the eye • Discordant body language • Hostile Making decisions purely based upon stereotypes and generalities should be avoided. These seeming short cuts to jury selection are often too shallow and foster the wrong result. However, even as I write this, I admit to including a few stereotypes and generalities into the equation I use when selecting a jury. The key is not to use them as absolutes. EXERCISING CHALLENGES FOR CAUSE The best way to procure a challenge for cause is to assist the prospective juror in stating their unshakable bias in such affirmative terms that they essentially invite themselves off of the jury. I really appreciate your position. Thank you for being so honest in sharing your beliefs with us. I’m asking you now to listen to your heart. The plaintiff is seeking 66

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money damages. If the court instructs you that it is your duty to enter a verdict to compensate plaintiff for pain and suffering, will you put aside your strong personal beliefs and do what the judge says… It is important not to isolate or alienate a worrisome juror. Instead their expression of ideology should be embraced and used as an opportunity to discover other jurors who share similar beliefs. This simple fishing metaphor can be used as a formula for deselecting jurors for cause. Step 1. Tossing out the Bait. Who thinks: • Our civil justice system is broken • People should take responsibility for themselves after an accident • People shouldn’t sue for accidents • It is unfair to enter a money judgment against a person who caused an accident • Only people who intentionally cause an accident should be sued • Injured people have a victim mentality • The defendant is the real victim for being sued

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No generalization is wholly true, not even this one.

— Oliver Wendell Holmes Jr.

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• The burden of proof should be beyond a reasonable doubt in a civil case • Paying for medical bills and wage loss is okay, but we cannot put a price on pain and suffering • People should not receive money rewards for injuries Step 2. Generating more nibbles. • Thank you • I respect your opinion • Who agrees with Juror X Step 3. Getting on the hook • Why do you feel that way • How does it make you feel when you hear about • Who agrees with that statement • Who disagrees Step 4. Securing the hook • How strongly do you feel about this • Do you stand up for your personal beliefs • If the judge says one thing, but you believe justice can only be done if you vote your conscience, will you do what the judge says, or will you do what you believe to be right

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Step 5. Landing the fish • In this case you will be asked to decide the issue of ____. • Given your deeply held beliefs, am I correct that you would not be a juror who could sit on this jury and apply the law told to you by the judge, if that law goes against your personal principles? • Your Honor, the plaintiff challenges Juror X, for cause. Most judges will allow challenges to the jurors “on the spot.” As soon as the bias comes to the fore, the “clock stops ticking” and we may engage in a cause challenge. This is the optimal protocol. The matter is fresh and we are all in the moment. Some judges will only allow challenges for cause after the voir dire rounds have concluded. By this time the moment will have passed, the matter will be stale, and the opportunity will be lost. Other judges have us give “signals,” for example, secret code-like phrases or the raising of an eyebrow. They will ask a few questions if they think a cause challenge is warranted. All of these judicial roadblocks are frustrating and result in biased jurors remaining on a panel. A party “should not be forced to exercise a peremptory challenge to exclude a prospective juror when it clearly appears that the prospective juror is disqualified for cause.”93

Stoddard v. Nelson, 99 Idaho 293, 581 P.2d 339 (1978).

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CLARIFICATION IS PROPER, REHABILITATION IS NOT In the middle front row of the jurors seated in the spectator benches “outside of the box,” sits a portly older man with spectacles.94 He looks rather jolly. Like a beardless Santa slightly balding with brown hair. So far I’ve classified him in the “okay” group. He raises his card to indicate that he had a loved one who was injured. He fits a general profile of someone who is probably compassionate. We are on the topic of how people feel about lawsuits. “Too many frivolous lawsuits.” Thank you who else agrees. “Out of control.” Thank you who else agrees. “Money won’t fix the problem.” Thank you who else agrees? And into this welcoming open discussion, enters the juror. He says: “My mother’s doctor committed malpractice. By the time we found out what he had done it was too late. My mother died. She died knowing it was the doctor’s fault. But she did not sue him. If she had, it would have put him out of business. She did not want to do that.” I tell him how sorry I am to hear this and wait for a moment. Then I ask whether he shares his mother’s attitude about suing. I already know the answer because of the way he so proudly told his story. But still, I need to give him a chance. And he says: “Let’s put it this way, the apple doesn’t fall far from the tree.” I ask a few more questions and he declares that people need to get on with their lives and stop blaming others for accidents.

From my trial memory of a truck versus car crash in 2004.

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Unfortunately the judge who is otherwise quite excellent, does not allow challenges on the spot. I cannot challenge the juror in the moment. Instead, I have to wait for about half an hour until the very end of voir dire. I then say, your honor I challenge the juror for cause. The judge, cloaked in his black robe, is up on a platform sitting behind an enormous wooden bench flanked by his solemn staff. The American and state flags are on poles to his left. The state seal is mounted over his head. He leans forward looking down at the juror over the top of his reading glasses and says, “At the end of the trial I will tell you the law that is to be applied. Will you be able to follow my instructions and be fair and unbiased in this case.” The juror says yes and the challenge is denied. I now need to burn a peremptory challenge on a clearly biased juror. *** Unless the juror appears confused or is ambiguous in answering questions that lead to a cause challenge, further inquiry is inappropriate. The Supreme Court has given clear directions to trial courts in this regard: Voir dire gives the parties an opportunity to develop information that might disclose a potential juror’s specific bias in a suit of the type at trial. In conducting the voir dire examination, the trial court must evaluate whether a juror can lay aside preconceived impressions or opinions and render a verdict based solely upon the evidence presented in court, the instructions given by the judge, and the requirements of the juror’s oath. This frequently involves asking follow-up questions

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designed to probe jurors’ initial responses in order to clarify or interpret those responses. In making such an evaluation, however, a trial court cannot accept without question a simple promise by the juror to be fair and impartial if it follows several previous statements of obvious bias by the juror because… notwithstanding that the juror may be sincere in expressing a desire to be fair and impartial, the psychological impact of requiring such a declaration before the juror’s peers and a judge could render the promise unreliable.95 There are various reasons why trial judges rehabilitate even those jurors who express actual bias, including, for example: 1) the judge is vested in believing citizens respect and honor the law and will follow it – to acknowledge otherwise undermines the high principles the court stands for; 2) worry that there are not enough jurors in the pool; and 3) bad habit. When asked by the court, a suggestive question produces an even more unreliable response. A juror’s desire to “say the right thing” or to please the authoritative figure of the judge, if encouraged, creates doubt about the candor of the juror’s responses. A trial judge who actively engages in rehabilitating a prospective juror undermines confidence in the voir dire examination to assure the selection of fair and impartial jurors. The proper role for a trial judge is to remain detached from the issue of the juror’s impartiality. The trial judge Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

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should rule on the propriety of counsel’s questions and ask questions or instruct only where necessary to clarify and not for the purposes of rehabilitation. If a trial judge adheres to this role, an appellate court may not set aside the trial judge’s determination of a juror’s impartiality if the juror’s responses, even though conflicting, support that determination.96, 97 Failure of a judge to disqualify a juror who has expressed an actual bias may constitute reversible error. In State v. Witherspoon,98 a potential juror expressed actual bias against African-Americans.99 The trial court attempted to rehabilitate the biased juror, and the juror agreed to presume the defendant was innocent.100 The appeals court reversed and remanded for abuse of discretion. It held rehabilitation “does not go far enough to mitigate a categorical statement by a juror that he is prejudiced against African Americans because of what he has seen and read.”101 Most judges allow the other side to ask additional questions once a challenge for cause is made. Again this is improper unless the questions are for clarification purposes and nonleading.

McGill v. Commonwealth, 10 Va. App. 237, 242-43, 391 S.E.2d 597, 600 (1990) (citations and footnote omitted).

See also State v. Harris, 156 N.J. 122, 716 A.2d 458 (1998) (reversible error where trial judge asked extended, leading question).

82 Wn. App. 634, 919 P.2d 99 (1996).

Id. at 637-38.

100

Id. at 638.

101

Id.; see also United States v. Wood, 299 U.S. 123, 133, 57 S. Ct. 177, 81 L.Ed. 78 (1936).

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Using or permitting the use of leading questions, those which suggest a desired answer, in the voir dire of a prospective juror may taint the reliability of the juror’s responses. Merely giving “expected answers to leading questions” does not rehabilitate a prospective juror.102 Proof of a prospective juror’s impartiality “should come from him and not be based on his mere assent to persuasive suggestions.”103 Attorneys are placed in an untenable position when a judge permits or engages in rehabilitation of a juror. At best, we can request a sidebar and make a record. If sidebar is not allowed, we risk alienating the judge and potentially the jury before trial has even started. It may help to create a pocket brief from the cases cited in this section. Submit it to the court before voir dire begins.

“

…[T]he right of trial by jury shall be preserved…

102

Martin v. Commonwealth, 221 Va. 436, 444, 271 S.E.2d 123, 129 (1980).

103

Breeden v. Commonwealth, 217 Va. 297, 300, 227 S.E.2d 734, 736 (1976).

”

— U.S. Constitution: 7th Amendment

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JURY QUESTIONNAIRES Trial Diary104

The questionnaires are super. They are too long, but I am interested in a select few and from there create a spreadsheet that is reduced to a single page that allows for fairly easy tracking of 42 jurors. This morning I glance over at Jeanne’s table, and they have computer printouts – 1 for each juror. And so they ineffectually flail pages around all day long. Here are my notes following summary of the questionnaires. 1. 14/42 believe that spouses should not recover for wrongful death. Must talk about this. 2. #XX was an asbestos abatement project manager – even if we strike her we should use her to educate the jury on why is needed to be abated 3. 17/42 believe most lawsuits are frivolous. Must talk about this 4. Almost everyone who’s heard of asbestos has gotten their info from attorney commercials. Must deal with ambulance chaser stigma 5. Only 7/42 have ever served on a jury. Need to discuss BOP 6. People who have been exposed will be vested in wanting to deny the reality of their exposure and risk 104

Excerpt from my trial diary in an asbestos wrongful death case. October 2009.

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7. No need to spend time talking about corporate profit motive – that is an issue that is our strength. Defense may talk about it. Recently one of my friends had a trial where a questionnaire was used and she felt her voir dire was sub par. That the oomph had been taken out. Kevin and I go into our mission with that advice fresh on our minds. We are able to get 4 jurors excused for cause but it should be 5. It frankly should be more, but the judge – though allowing us to pursue the jurors on the spot, will not let us say the words “challenge for cause” until the very end of the process. This is the first time I’ve experienced this version of challenging jurors. At several sidebars midway through the process it is agreed that X, X, and X are going to be excused but the defense argues they should remain in because otherwise other jurors “will exaggerate their positions to get out of a case.” How ludicrous. On the heels of the judge agreeing to leave them all in, Jeanne begins her final round of voir dire by spending the longest time using one of the challenged jurors to talk up her side of the case. *** Written juror questionnaires can be helpful particularly in complex cases. Both parties have an interest in learning as much as possible about jurors before voir dire. Parties may use evidence obtained from the answers to excuse a juror for cause.105 Questionnaires may be useful in obtaining a great deal of information about prospective jurors, including 105

See id.; Miles v. F. E. R. M. Enterprises, Inc., 29 Wn. App. 61, 64-65, 627 P.2d 564 (1981) (plaintiffs permitted to use juror questionnaire answers in for cause challenge).

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sources of possible bias, with only a small investment of the trial court’s time.106 If agreement can be reached to a proposed form, the trial judge will generally be inclined to allow the questionnaire. Various pragmatic issues will arise. The jurors need to have time to fill out the documents, and the attorneys need time to review them. In certain jurisdictions the answered forms need to be filed with the court without expectation of privacy due to public disclosure rules. This can greatly impact both the court’s willingness to allow a form and jurors’ willingness to be frank when answering them. Due to court funding issues, counsel may be asked to duplicate the questionnaires for the jurors. The prospect of garnering advance juror information may tempt the propounding of excessive questions. We need to be careful what we ask for. The information gleaned will need to be synthesized. Unless we have the answers back several days before the actual trial, we will not be able to properly digest and process large numbers of responses. In general, questionnaires should be one to two pages in length. Here is a sample form.

“ 105

You cannot make yourself feel something you do not feel, but you can make yourself do right in spite of your feelings. — Pearl S. Buck

”

See Robert B. Sykes & Francis J. Carney, Attorney Voir Dire and Jury Questionnaire: Time for a Change, Utah B.J., 60, 63 (1997).

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JURY QUESTIONNAIRE CAUSE NO. __________ Juror No. __________ 1. Name: __________Age:_______Gender:_______ 2. Job status (Circle 1): Employed Retired Homemaker Student Disabled Unemployed Laid off 3. Current job title and employer: 4. Last job titles and employers: 5. If you or anyone close to you ever worked for Defendant X, please describe: 6. Current job title of your spouse or domestic partner, if any: 7. If you are a supervisor at your job, how many people report to you: 8. If you have ever worked in the following fields check those that apply: ___ Government ___ Insurance ___ Business ___ Law ___ Law Enforcement ___ Accounting ___ Engineering ___ Claims ___ Medicine 9. What level of education have you completed: 10. If you have ever been sued or have sued someone else, please describe: 11. If you or someone close to you has been in a serious motor vehicle crash, please describe: 12. If someone close to you died as the result of a serious injury, please describe: 13. If there is a limit to the amount of money you could assess in a civil case, please describe:

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14. If you belong to any organizations that are trying to fix or change the law, please describe: 15. On a scale of 1 to 10 (1 meaning you strongly disagree and 10 meaning you strongly agree), please rank your feelings about these statements: a. There are too many frivolous lawsuits b. Most lawsuits are frivolous c. Our civil justice system does not work d. Lawyers have damaged our civil justice system e. Jurors do not make the correct decisions f. The law should not allow recovery for pain and suffering g. A plaintiff should be limited to recovering money only for medical bills and wage loss h. A defendant should not have to pay for an accident i. Companies are mainly interested in profit, not safety I,_______________________________________________(Name), declare under penalty of perjury under the laws of the state of Washington that I am over the age of 18 and the above answers are true and correct. I understand that my answers have been given under oath. Dated this the _____ day of April, 2006 ________________________________________ (signature)

There are exceptions to keeping questionnaires short. Particularly if there is enough time given to review the answers. It is always a good idea to get feedback from a jury consultant or an attorney who tries a lot of cases in the field.

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COURTROOM INTERNET SEARCHES OF JURORS Much has been written in the press about the impropriety of jurors using the internet to look up information on the case, the parties, the lawyers, or the subject matter. Most courts now give jury instructions expressly banning social networking or any other internet activity relating to a trial. On the other hand, little has been written about attorneys and consultants researching jurors from the courtroom. In a New Jersey medical malpractice case, the plaintiff attorney brought a laptop and wireless connector to the courtroom.107 THE COURT: Are you Googling these [potential jurors]? [PLAINTIFF’S COUNSEL]: Your Honor, there’s no code law that says I’m not allowed to do that. I -- any courtroom THE COURT: Is that what you’re doing? [PLAINTIFF’S COUNSEL]: I’m getting information on jurors -- we’ve done it all the time, everyone does it. It’s not unusual. It’s not. There’s no rule, no case or any suggestion in any case that says -.... THE COURT: No, no, here is the rule. The rule is it’s my courtroom and I control it. 107

Carino v. Muenzen, M.D. Not Reported in A.2d, 2010 WL 3448071 (N.J.Super.A.D.) Unpublished decision New Jersey Appellate Division docket no. A-5491-08T1.

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[PLAINTIFF’S COUNSEL]: I understand. THE COURT: I believe in a fair and even playing field. I believe that everyone should have an equal opportunity. Now, with that said there was no advance indication that you would be using it. The only reason you’re doing that is because we happen to have a [Wi-Fi] connection in this courtroom at this point which allows you to have wireless internet access. [PLAINTIFF’S COUNSEL]: Correct, Judge. THE COURT: And that is fine provided there was a notice. There is no notice. Therefore, you have an inherent advantage regarding the jury selection process, which I don’t particularly feel is appropriate. So, therefore, my ruling is close the laptop for the jury selection process. You want to -- I can’t control what goes on outside of this courtroom, but I can control what goes on inside the courtroom. The court ruled the judge’s decision was unreasonable, but not prejudicial under the circumstances where counsel could have done the research at night as selection lasted two days: Despite the deference we normally show a judge’s discretion in controlling the courtroom, we are constrained in this case to conclude that the judge acted unreasonably in preventing use of the internet by Joseph’s counsel. There was no suggestion that counsel’s use of the computer was in any way disruptive. That he

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had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining “a level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it.108 WE MUST DO OUR BEST THEN MOVE ON We like to be in control. But the judge rules the courtroom. The jury pool is chosen from a random sample of citizens. And the defense lawyer wants to be in control too. Sure, we can exert our own personal charms and powers of persuasion during the process. But ultimately, we don’t call the shots or make the rules. It is important for us to be “in the moment” at all times. We cannot be fretting about something that happened five minutes ago. Nor can we be worrying about what may happen if such and such occurs. We need to be focused and dealing with what is happening as it is happening. And then, we need to close that page and move on.

“ 108

Follow your instincts. That’s where true wisdom manifests itself. — Oprah Winfrey

”

Carino, supra.

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Trial Diary108

My law partner Paul Whelan invites me to help with voir dire. So on a beautiful Monday morning I arrive promptly at the Snohomish County Courthouse. But we can’t go in. The building has been cleared for a fire alarm and we have to wait for all the county employees and jurors to gather and reenter. An hour later, we make it inside, then up to presiding and straight back out the door and down to Judge C’s court. This is a construction site carbon monoxide poisoning case with co-counsel RP Sr. & Jr. BF is the defense attorney. The Judge calls us into chambers and here is his voir dire protocol: three peremptories plus one as there will be two alternates (he gets the rule book down and turns right to the page that says you get one peremptory for every one or two alternates). He allows challenges on the spot and gives us our choice of how to deal with alternates – we decide to pick two numbers ahead of time and the jury won’t be told. He allows 45 minutes per side to be divided however we want and tells us he’ll allow us 10 extra minutes if we need it. I take the lead in discussing voir dire issues (you’ll see why this is important later on in this story). There are plenty of jurors available and 40 are pulled for our panel. The clerk gives us the juror information sheets 20 minutes before she brings them in. What luxury (really)! The jury comes in and preliminary voir dire begins with the judge. I write down that Judge C seems “earnest and accommodating”. 109

Excerpt from my trial diary of a carbon monoxide poisoning work site case in May 2007.

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If a juror has a problem related to hardship as this will be a two possibly three week trial, they are excused. He has a nice easy manner born of long practice. We go on break and resume our places. Before the jury re-enters, the Judge leans over the bench and says to me – Ms. Koehler, are you an attorney? Now, I have been asked if I’m a court reporter before (many times). I’ve been asked if I’m a client or a witness. But never by a judge in open court during a jury trial. And so, I am not completely absolutely shocked. But I do have an expressive face and I’m not sure that I perfectly control it when I say to the judge – Yes Your Honor, I am. And so instead of one hundred percent concentrating on the jury, I’m thinking – what the heck. When I was younger, I really did look young. But I’m older now so that’s not a reason. I wasn’t dressed casually – I was in a skirt suit. I even tied my hair back. So not looking professional wasn’t a reason. I was the attorney most vocal in the discussion about voir dire, so lack of experience wasn’t the reason. All of these thoughts move through my mind in a quick swirl and then I shove them aside, with one objective thought remaining – the judge sees me differently than Paul and RP Sr. and RP Jr. and BF. Paul and BF begin the first round of voir dire. There’s a lot of talk about carbon monoxide and monitoring and ventilation and scissor lifts. Paul removes one juror for cause (who actually was one of our firm’s former clients!) because her husband is a supplier for about half a dozen of the witnesses. BF’s voir dire is exactly as I remembered it from the last time I tried a case with him. He talks and the jury shakes their collective head up

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or down. I realize 75% of the jury hasn’t spoken at all. Much of the discussion has been with the men on technical issues. So it’s my turn and I bounce up and get the jury to start talking about bias and burden of proof and money damages. BF objects when the jury says it is uncomfortable with money as damages and how do you value that. The judge kind of sustains it and tells me to move on. I work on the money damages part a bit more, this time talking about how our society places money value on many things. BF objects again. The judge tells me my time’s up. I think back to our in chambers meeting when the judge seemed to be so magnanimous about offering additional time if we ran out. I look at the judge and say - your Honor I would ask permission for ten more minutes of voir dire. He gives me five. So I go back to the one juror who we now know as Mr. Tort Reformer. His position is that McDonalds started this “trend” and all the civil suits that have followed it are stigmatized by it, even though some might be okay suits. But many aren’t. I get him to agree to his bias. I ask to excuse him for cause. The judge then argues with him for the next three or four minutes, convincing him that though he is biased, he can put that aside because he doesn’t know the evidence yet. Motion to excuse for cause denied. We then exercise all four of our peremptories. BF doesn’t exercise any. The jury is picked. ***

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STRITMATTER KESSLER WHELAN COLUCCIO www.stritmatter.com Hoquiam Office 413 8th Street Hoquiam, WA 98550 Tel: (800) 540-7364 Fax: (360) 532-8032 Seattle Office 200 Second Avenue West Seattle, WA 98119 Tel: (206) 448-1777 Fax: (206) 728-2131

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