Tips for Successful Jury Selection
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The nursing home and assisted living neglect lawyers at the Law Offices of Ben Yeroushalmi have litigated countless elder abuse cases in Los Angeles and its surrounding areas for over 10 years and have received the best results for victims and their families. We have gained extensive experience in the area of successful jury selection. Contact our team of attorneys for additional information online or at (310) 623-1926.
Jury selection can be a daunting process, even for experienced trial attorneys. However, most difficulties originate from an essential misunderstanding of what the goals of jury selection really are. California Code of Civil Procedure § 225(b) governs the procedure for challenging prospective jurors for cause, and reads:
"A challenge to a prospective juror by either:
- A challenge for cause, for one of the following reasons:
- General disqualification--that the juror is disqualified from serving in the action on trial.
- Implied bias--as, when the existence of the facts as ascertained, in judgment of law disqualifies the juror.
- Actual bias--the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.
- A peremptory challenge to a prospective juror."
Unlike peremptory challenges, each side is generally entitled to an unlimited number of "for cause" challenges.
Both defense and plaintiff's attorneys, and even the court, are misled into believing that jury selection is meant to unfairly "precondition" potential jurors, and thus judges are less than inclined to waste valuable court time to allow flexibility during the voir dire process.
Contrary to the archaic beliefs of antiquated trial techniques, jury selection is not meant to "precondition" potential jurors, but rather, to effectively identify which individuals are harmful to your case and remove them for cause. In a way, effective and successful jury selection is more about jury "de-selection." Therefore, it is very important to let the court know that you are against "preconditioning" and that your primary purpose is to gather information regarding the biases of potential jurors, nothing else.
- Educate Potential Jurors on Bias
Sections 228 and 229 of the Code of Civil Procedure state the requirements for general disqualification and implied bias. Attorneys and representatives are encouraged to read these sections. However, this article is dedicated to explaining how to remove jurors for cause under actual bias.
The key phrase from § 225(b) to challenging a potential juror under actual bias is to "prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." A prospective juror possesses actual bias and should be excused when his or her stated impressions would result in one party having to effectively start trial with a strike against them and require that party to produce "evidence to remove [the prospective juror's] bias..." (People v. Vitelle (1923) 61 Cal.App.695, 700.) A litigant suffers prejudice when, over his protest, the court impanels a juror whose state of mind requires the challenging party to introduce evidence in excess of a preponderance to such extent as will overcome antecedent prejudices of the juror. (Liebman v. Curtis (1955) 138 Cal.App.2d 222, 226.)
All people harbor beliefs and attitudes about various facets of life. These beliefs and attitudes are called biases. Yet, people are often not aware of their biases, or are unwilling to readily admit to them. Regardless, these biases influence people's decisions, even in a courtroom trial, whether it is intentional or not.
Getting jurors to admit disqualifying bias is extremely difficult. Most persons regard themselves as "fair" and "impartial" and want to be accepted on the panel. Even if a potential juror is aware of his or her biases, it is rare that they will willingly and enthusiastically admit to them during the jury selection process. It is therefore significant that counsel carefully draw out these biases without making people too defensive.
It is important to avoid asking whether the juror would be "impartial," "biased," "prejudiced," or "go with the evidence." Rather, the attorney should ask whether the members have "preconceived notions," "life experiences," or "strongly-held beliefs" about certain issues. Explain to the potential jurors that everyone comes from different backgrounds, have different life experiences, and have different values and beliefs, and that all of this is okay. Having these beliefs is not a negative trait; it is what makes us human and unique. However, also explain that because of everyone's distinct life experiences, certain individuals may not be the right jurors for this case specifically.
It may be helpful to use personal anecdotes to explain this to the panel. Tell them that, for example, you have a strongly-held belief about onions. You do not like the taste of onions, you never liked onions, and even if you ate your favorite meal, if it had onions on it, you would not like it. Vary your analogies based on the disposition of the jury and the venue.
Eventually, you want certain individuals on the panel admit one of two things: either (1) the plaintiff will be starting out with a strike against them even without hearing any evidence, or (2) the plaintiff ends up with a strike against them when conflicting evidence emerges that meets the individual's expectations.
- Identify Potential Jurors at Risk for Bias
Jury "de-selection" is accomplished by addressing questions to the jurors in a defense-oriented fashion. For example, instead of asking whether anyone has any feelings/beliefs/experiences about plaintiff's suits in general, a lawyer should ask whether anyone has any feelings/beliefs/experiences about the high number of frivolous lawsuits in today's society. People are more likely to admit to these experiences if they believe that the attorney also shares those experiences.
During pre-trial preparation, an attorney should prepare a list of possible biases of concern. Common categories of bias include beliefs against personal injury cases, beliefs against the burden of proof, beliefs against awarding money for pain and suffering, beliefs about the specific injury that occurred, beliefs about exaggerated injuries, beliefs about asking for a large monetary award, and beliefs about placing a loved one in a care facility. You should carefully develop a list of issues that are specific to your case.
When questioning potential jurors about their biases, start with the most "threatening" areas of bias first, which are usually preconceived beliefs about the type of case you are bringing. These include plaintiff's cases in general, the specific type of case you are bringing (e.g., elder neglect), and cases involving certain entities and individuals (e.g., medical facilities and doctors). Ask each potential juror directly whether he or she has beliefs about these areas, and how strongly they hold those beliefs on a scale from 1 to 10. Keep track of all potential jurors who you have identified as having feelings or beliefs that will harm your case so you can follow up with "for cause" questions later in voir dire.
Remember to always thank the potential jurors for their honesty. In addition to simple courtesy, this will also encourage other members to express their own beliefs.
- Establish Cause for Removing Problem Individuals
California case law provides guidance on which beliefs can be deemed to be actual biases.
- Hostility to claim, or "Party Starts at Disadvantage": Examples include bias against personal injury suits in general (Quill v. Southern Pacific Co. (1903) 140 Cal. 268, 270), and a belief that a plaintiff needs to show more than the relevant burden of proof to prevail (Fitts v. Southern Pac. Co. (1906) 149 C 310, 313; see also Leibman v. Curtis (1955) 138 CA2d 222, 226).
- Long-held belief against a party's substantial rights: An example is a long-held religious belief regarding divorce and remarriage (Smith v. Smith (1935) 7 Cal.App.2d 271, 273-274). This same concept applies to any jurors who have particular beliefs regarding personal injury that are contrary to the law.
- Belief or preconception not easily set aside: Examples include potential jurors with specific backgrounds who have a pre-conceived idea about the medical issues involved in a case. (See Liebman v. Curtis (1955) 138 Cal.App.2d 222, 226, where a worker's compensation examiner had considerable experience with the type of back injury at issue in the case.)
- Strong belief or prejudice against class of persons to which party belongs: Examples include beliefs against the ethnic, political, or economic groups of the parties (Lawlor v. Linforth (1887) 72 C 205, 206), racial prejudice (People v. Mello (2002) 97 Cal.App.4th 511, 516), and biases against certain social groups (See, e.g., People v. Chapman (1993) 15 Cal.App.4th 136, 141).
- Religious beliefs: Certain religious views can be grounds for excusal for cause (People v. Rountree (2013) 56 C4th 823, 845-848, where a potential juror believed that "the Bible tells us not to judge;" see also Smith v. Smith (1935) 7 CA2d 271, 273-274). However, attorneys should be aware of Cal. Const. Art. 1, § 4 and CCP § 204(a), stating except where potential bias can be shown, voir dire questions regarding religious beliefs are generally not permitted.
Follow up with those potential jurors that you have identified which may be a bad fit for your case to remove for cause. Ask: "In light of your beliefs and life experiences, would it be fair to say that a plaintiff in this case would be starting out with a strike against them, in spite of your best efforts to put those feelings aside?" or "Considering your preconceived notions, would a plaintiff in this case end up with a strike against them even if you hear conflicting evidence?"
Using phrases such as "in all honesty" or "in all fairness" will emphasize the importance of not only the specific case, but also the significance of honesty of admitting the personal effect that a potential juror's distrust or beliefs of your case may have on the trial.
Once a potential juror has admitted that they have actual bias, that individual cannot be "rehabilitated" by simply stating, "Although I have these beliefs, I can be fair and I will follow the law." (See Quill v. Southern Pacific Co. (1903) 140 Cal. 268; see also People v. Riggins (1910) 159 Cal. 113; see also People v. Balderas (1985) 41 Cal.3d 144, 183; see also People v. Williams (1981) 29 Cal.3d 392, 410; see also Lombardi v. California Street Cable Ry. Co. (1899) 124 C 311.) Potential jurors are properly excluded for cause where they admit bias but then promise to be impartial or to decide the case according to the evidence presented. However, the trial judge always has final discretion and may reject challenges for cause in any case. (People v. Thornton (2007) 41 C4th 391, 414; see also People v. Kipp (1998) 18 C4th 349, 366; see also Graybill v. De Young (1905) 146 C 421, 422-424.)
Lastly, it is also helpful to follow up with other members of the panel to draw out biases after a potential juror has admitted that the plaintiff will have a "strike against them." Ask: "How many of the rest of you feel like Mr./Ms. ______ to any degree?"
- Preparing for the Defense Counsel's voir dire and Peremptory Challenges
After the conclusion of plaintiff's counsel's jury selection, the defense counsel has the opportunity to conduct their own voir dire. It is extremely important to anticipate defense counsel's goals and motives in order to take preventative measures.
Defense counsel's goal is to remove jurors that are beneficial to your case for cause. Anticipate which of the members of the panel these will be and use the case law and tips cited above to make sure that they are not improperly removed.
Normally, after defense counsel is finished with their voir dire, the judge will allow both parties the use of their peremptory challenges. The rules governing this process is outlined in California Code of Civil Procedure § 231. Each side is entitled to six peremptory challenges, unless the judge allows more challenges. Use peremptory challenges on potential jurors you have identified as harmful to your case but you were not able to remove "for cause."
For additional information regarding successful jury selection strategy, get in touch with an experienced attorney. The nursing home and assisted living neglect lawyers of the Law Offices of Ben Yeroushalmi in Los Angeles are dedicated to elder abuse and neglect cases and can be contacted online or at (310) 623-1926.