In this post I begin my report on my first jury trial. The case is a MIST case. MIST is an acronym coined by the insurance industry standing for “minor impact soft tissue.” Insurance companies know these cases are hard to sell to juries because many people do not believe a person can be injured if there is no visible damage to the cars involved in the collision.
John Henry suggests I read Trial by Human, by Nick Rowley. I read Nick’s book. Nick Rowley is one of the best trial lawyers in the United States and his book is a must read. For jury selection I use a combination of Nick Rowley and Gerry Spence (“show yours to get them to show theirs”) tailored to my style.
Introduction. “I am nervous and scared, but this is an important part of the trial because this is the time we get to talk together. This is my chance to find out which 13 of you are up for the job of being on this jury. It’s a job that will take at least four days, and its a job that is important to Judy Brown because this is her only chance to present her case. Now I bet many of you also feel nervous and scared because a lawyer is asking you questions, but I must do this to learn how you feel about important issues. I will be brutally honest with you. I ask you to be brutally honest with me-even if you feel I will not like what you have to say. I want to hear your feelings now rather than when the trial is over and you come up to me and say why did you pick me for this jury given my feelings about your case.”
Showing Warts. “Let me tell you a big concern I have about our case-in our case Judy Brown claims personal injuries from being rear ended by defendant. You will see the bumpers of the two cars, and you will see no damage to either bumper. What do you feel about a person seeking money after a rear end collision with no visible bumper damage.”
(This opens jury selection with me disclosing the biggest problem in my case. I listen to the jurors react. There is no wrong answer, I never disagree with a juror. This is because I need to hear negative feelings. Some express doubt on being injured without visible bumper damage. But a juror says a person can be injured without visible damage to the bumpers. I agree saying: “This case is about a person not a person’s bumper).”
Next I tell the jurors: “My client asked me for a recommendation for a doctor and I suggested the doctor she treated with. What do you feel about this?” (The discussion defuses another wart in our case).
Topic Areas. I introduce the question of lawsuits to get money for an injury and ask what they feel about this. Following on this topic I move into money for medical bills (which all agree is not a problem). I then introduce money for pain and suffering: “What do you feel about money for pain and suffering?” (Here some jurors have a problem. No wrong answer but this leads to discussion on general damages in a personal injury lawsuit). I follow with: “What are important things in life?” (This leads jurors to discuss the importance of health, job satisfaction, activities, and interaction with family and friends. This evolves to jurors recognizing the loss of or diminution of the ability to work, do activities, and engage in relationships is significant. Next I introduce: “How important is it to be accountable for our actions?” “Does it matter if we do not mean to negligently harm a person?” “Does a money verdict have an impact beyond the particular case?”
Challenges. (When a juror is discussing her feeling on a topic I focus on the juror. My eye contact is with the juror. I continue with the juror by listening and with follow up. My goal is to get the jurors to talk 80 to 90% of my jury selection time ). When a juror takes a position that is undesirable for our case, I ask the juror: “Should I fear having you on our jury.” (Some say yes and going deeper results in one of the jurors agreeing to a challenge for cause which the judge grants. After, I thank the juror for her honesty).
By disclosing my case weaknesses I beat defense to the punch, and show the jury I am honest. Through our discussion we learn feelings that allow us to best exercise preemptory challenges. On preemptory challenges, we only challenge jurors who will destroy us.