Hitting the High Points – The ‘Philosophy’ of Voir Dire

June 21, 2007

By Darren O’Leary Aitken, Esq.

Noted trial lawyer, Tom Girardi, opines that in the modern era cases are not tried due to conflicting facts, but due to conflicting philosophies. In other words, most cases go to trial because the opposing lawyers and their clients see the same set of facts differently. Some of these conflicts are disguised as issues of science, others as issues of law. Ultimately, however, what is driving the parties to trial is a basic philosophical disagreement as to how the jury will react to the stipulated facts. As others have noted, consumers have had greater success combating the insurance philosophy of “frivolous lawsuit” after presenting the competing philosophy of “frivolous defense.”

The question we are faced with then becomes how can we effectively communicate our philosophy of the case? First, we must find an audience who is willing to listen. In the current climate, consumer lawyers face a serious dilemma in locating such an audience. More and more inroads are being made to limit our role in voir dire, while at the same time more and more special interest resources are devoted to manipulating the public against the civil justice system. The trial lawyer’s ability to select a fair and impartial jury is increasingly limited even though the need for full and robust jury selection has never been greater. In an era of misguided and manipulative “tort reform” and false allegations of a “litigation crisis,” proper voir dire becomes even more important in the everyday trial. Indeed, jury selection may be the only effective counter the plaintiff’s lawyer has to the “spin doctoring” engineered by the insurance industry and their allies in the media.

In California, the right of counsel to conduct voir dire in a civil matter is established by Code of Civil Procedure section 222.5. “[C]ounsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause.” To that end, “the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case.” (C.C.P. section 222.5) While the length of voir dire examination is not set, “[s]pecific unreasonable or arbitrary time limits shall not be imposed.” (Id.) Unfortunately, as we all know, the law in California is often given judicial “lip service.” Tellingly, California Rule of Court 228, while establishing the right to voir dire in civil trials, expressly indicates party voir dire “shall be within reasonable limits prescribed by the trial judge in the judge’s sound discretion,” but the rule omits Section 222.5’s mandate that counsel be allowed “liberal and probing” examination of the prospective jurors.

In other areas, the right to voir dire is even less well-established. In criminal cases, there are no voir dire rights and the examination is limited to challenges for cause. No right to voir dire exists in federal civil trials, although the trial judge may permit counsel to examine prospective jurors directly. Depending on the trial judge involved, this discretion is rarely granted or exercised. Thus voir dire could truly be described as a “system under siege,” whose validity is often questioned and future is doubtful.

The trial counsel must make the best use of the limited time he or she is given. To maximize the time available, our office concentrates on the following:

Identifying the “philosophical” core of the case; Tailoring our examination to identify those prospective jurors who are amenable to the lawyer’s “philosophy” of the case; Finding jurors who are willing to follow the law and facts which support that philosophy.

The following case was chosen to illustrate this approach for two reasons: First, the underlying facts were controversial, thus making the philosophical views of the jurors particularly crucial. Second, due to the severity of the injuries, combined with the controversial nature of the facts, the trial judge allowed the attorneys greater time to conduct jury selection. As a result, counsel could articulate their “philosophical approach” to the trial.

The facts were as follows: The plaintiff, a 20 year-old male college student and the defendant, a female, also age 20, were both occupants in plaintiff’s Chevy Blazer. Prior to the collision, they had been drinking beer they had shoplifted from a liquor store. Blood tests indicated both were legally intoxicated when the accident occurred.. The defendant ran a red light and Blazer was hit broadside by a car traveling through the intersection on a green light. Plaintiff was partially ejected from the passenger side window, and his head and shoulders became pinned between the ground and Blazer when it rolled over onto its passenger side.

Neither defendant nor plaintiff recalled the details of the accident. When first questioned by the police, defendant denied any knowledge of who was driving, although she later claimed plaintiff was the driver when she was threatened with arrest. Defendant also claimed they were on their way back from a failed cocaine purchase when the accident occurred, although neither plaintiff nor defendant possessed cocaine nor did had it in their systems. The evidence indicated plaintiff had not been wearing his seat belt at the time of the collision. This point was conceded at trial. Plaintiff partially severed his spinal cord at C4-5, rendering him a quadriplegic. He had no recollection of these events.

The hotly contested factual issue in the trial was the identity of the driver. According to California law, if the badly injured plaintiff was a passenger in his own vehicle at the time the driver ran the red light, plaintiff would still be entitled to a substantial recovery despite his significant comparative negligence. The deeper philosophical issue concerned the legal concept of comparative negligence would be accepted by any jury. During trial preparation, this factual scenario was presented to an informal focus group comprised of our friends, relatives and colleagues. Although the main evidentiary point concerned the identity of the driver, it became clear there was a real philosophical reluctance in many people to award the plaintiff damages no matter who was driving.

Looking at it from the plaintiff’s best case scenario, he was injured due to an acquaintance’s negligent driving after he negligently entrusted the vehicle to her and after both engaged in underage drinking while consuming stolen beer. The defendant testified that, at the plaintiff’s insistence, they wanted to purchase cocaine that evening. The plaintiff’s crippling injuries were a result in part of his failure to use a seatbelt. Indeed, the plaintiff actively participated in every negligent act leading up to the accident, short of physically driving the vehicle through the red light. After hearing these facts, many of the informal focus group (including several plaintiff’s lawyers) stated they would not award plaintiff damages no matter who was the driver.

From a purely legal point of view, if the jury concluded the evidence preponderated on behalf of the paralyzed plaintiff, he would be entitled to a substantial award, despite his own substantial culpability. Plaintiff’s case hinged on a factual issue – who was driving – and the other issues at play, alcohol, drugs, seatbelts, were all secondary to, if not extraneous to, what should be the jury’s main focus. Armed with common sense and the knowledge gained from our focus groups, we knew that we had to find jurors who would philosophically apply comparative negligence to such emotional facts. That was the essence of the “philosophy” litigated.

Jury selection was aided by the use of written phrases that touched upon the controversial issues of the case. On a board placed before the jury, in addition to the background information ordinarily sought, the trial judge placed what he perceived to be certain key factors within the parameters of the facts of the case. These factors included: LAWSUITS, DUI (“driving under the influence”), AUTO ACCIDENT, UNDERAGE DRINKING, COCAINE. Ultimately, the trial judge allowed us to create a corollary column listing: “YOUTH,” “ONE NIGHT,” “COLLEGE KIDS,” “LOSS OF MEMORY,” and “SHARED RESPONSIBILITY.”

Now what do these key phrases tell us about this case? In conducting jury selection, we did not forget the conclusions reach by our informal “focus group”, who told us certain individuals would not buy comparative negligence, even if justified, and would refuse to find in plaintiff’s favor. We believed we had to help the jury understand that much of the perceived bad conduct was singular and limited, and in fact, many of them (or their spouses or children) had engaged in such conduct when they were young. We asked the jury whether they had done anything they had regretted between the years of eighteen to twenty-one, and whether they had ever engaged in the consumption of alcohol as minors. We had to persuade them to understand, and to some degree, forgive a singular evening of indiscretion although not condoning it.

What was the judge saying with the capitalized key factors he placed before the potential jurors? LAWSUITS obviously gave him the opportunity to discuss how people felt about lawsuits and litigation and awarding of damages in today’s environment. DUI and AUTO ACCIDENT reached organizations, such as Mothers Against Drunk Drivers, and the public outcry against drinking and driving. UNDERAGE DRINKING reemphasized the illicit activity that night. COCAINE touched on the issue of drugs, which placed the parties at the specific location of the accident.

While these terms focused on the weakest aspects of our case, it allowed us to neutralize these weaknesses to some degree by discussing them first and in a straightforward manner, thereby depriving the defense of any “shock value.” We quickly agreed with the jurors that drug use and underage drinking were illegal and wrong, and neither we nor our client condoned them. This discussion allowed the jury to agree they would look beyond the unsavory facts and concentrate on other important issues — particularly who was driving the car. By the time trial began, the drug and alcohol issues had been so thoroughly discussed in voir dire that the shock value had dissipated and the jury was less interested in the defense’s efforts to highlight, subtly or otherwise, these facts during the trial.

Our “counter-headlines” enabled us to discuss many of the same issues, but on our terms. YOUTH allowed us to explore youthful indiscretions, which may be singular in occurrence. We deliberately avoided the use of the word “immaturity,” because that term connotes “fault” and is not merely reflective of age. ONE NIGHT re-emphasized the theme of a singular act on a singular evening. COLLEGE KIDS had the same effect, as well as emphasizing that the plaintiff who could have been the child of any of the highly educated potential jurors from upscale Orange County communities. LOSS OF MEMORY let the jury know at the outset we were at a disadvantage because our client had no memory of the hours before the incident and could not defend himself against defendant’s version. SHARED RESPONSIBILITY, however, was the underlying “philosophy” of our presentation. “Shared responsibility” is the other side of the “comparative negligence” coin. Our ability to define and advance this concept was probably the single most important factor in the trial. Comparative negligence means that you were at fault but someone else may also be at fault. In today’s society, people have been conditioned to demand “responsibility.” SHARED RESPONSIBILITY capsulized the concept that both parties bore a percentage share of blame for plaintiff’s injuries, and therefore, liability for damages should be assessed accordingly.

Through the use of this phrase, plaintiff acknowledged he was willing and able (and indeed, anxious) to accept his percentage of blame for the evening’s activities. From the beginning, we emphasized plaintiff was not running away from responsibility. Plaintiff testified he was at fault and he accepted full responsibility for his conduct. By accepting the obvious (i.e., his fault), plaintiff gained credibility with the jury compared with defendant’s position refusal to accept any blame. What did we learn before exercising our first peremptory challenge after this free, open and lively discussion? The information we gained was absolutely essential to giving our client any chance of receiving a verdict. We learned:

• Some of the jurors did not drink at all for religious and other reasons.
• Some thought the driving under the influence laws were too lenient.
• Others had other family members or friends who had been involved in alcohol.
• Almost all jurors acknowledged some past drinking.
• Almost all who drank had engaged in some form of alcohol consumption before they were of the legal age to do so.
• Almost all had to admit youthful indiscretions.

Everyone agreed cocaine use is bad. By discussing it at length during jury selection, it became a “non-issue” in contrast to the real focus of the trial – who was driving? The jury selection process allowed us to identify those prospective jurors who seemed willing to keep an “open mind” on the main issue and not let the unsavory aspects of the case dictate their decision.

As voir dire progressed, it was obvious we needed parents on the jury: parents who had raised children of their own, parents who remembered when they were children and young adults. We wanted a smart jury, and one that was primarily female jury. Of course, we wanted to stay away from certain types of jurors, such as engineers, who often fit the role of good parents, but tend to demand a higher burden of proof than the law requires and impose a higher burden that could be met in this case.

After a lengthy and hotly contested trial, the jury determined the plaintiff was in fact the passenger and allocated responsibility equally between the two parties. This finding enabled the young man to recover 50% of all his special and general damages.

To borrow a popular term, what is the “message” of this article? It is a very simple lesson. Though times change, technology expands, people remain fundamentally fair. They remain human. Despite onslaughts of advertising, the extraneous outside influences that push special interest agendas, or that push procedure over substance to promote ill-conceived notions of efficiency, jurors will continue to produce just and fair results. But only if trial counsel, counsel on both sides with a fair referee (a judge) are allowed to “engage” the prospective jurors. Any case that should be won can be won, even in these times, but only under a system that appreciates “individual” justice has judges who appreciate the importance of the system, and realize that justice begins and all too often ends with jury selection.

Contact Aitken * Aitken * Cohn today to learn more.