One thing I have been trying to do with our blogs is to give our readers an opportunity to hear from other lawyers. Today, I have another guest post from Anthony Castelli, a personal injury lawyer in Cincinnati, Ohio. You can learn more about Tony’s practice here.
Tony is writing about a topic that is both near and far from my heart: jury selection. I say near to my heart because it is so incredibly important. Sadly, we probably have the most most restrictive voir dire in the country. That may change soon. But I doubt it.
Tony also has some interesting commentary about trying to use the suggestions of other lawyers and trial consultations, most notably David Ball whose work we have written about a great deal.
With that introduction…
I have selected many juries in personal injury cases, primarily in Hamilton County, Ohio where my practice is based. As I understand is the case in Maryland, Ohio also has an unlimited number of challenges for cause. One example of a challenge for cause would be a juror is related to one of the parties. Another example is the juror admits they cannot be fair to your client. It’s not easy to elicit that from a juror, but if you can get the Judge to dismiss a potential juror for cause, that saves you from using a peremptory challenge. A peremptory challenge is a challenge that needs no reason behind it. You do not even express the reason to the Court. In Ohio you get three challenges for cause. You do not have to use any of them if you do not want to.
The Purpose of Jury Selection
My purpose in selecting a jury is to get the most favorable jury for my client. I have found there are some essential issues that I have to develop with each juror so I can make an informed guess as to whether they will be receptive to my client and have a willingness to award a significant some of money. Every personal injury trial has that issue. How much is the injury worth.
Open ended Questions
The best way to do explore money with a juror is to ask open ended questions so you can get to know how jurors feel about awarding money damages. The question simply is, “How to you feel about awarding money damages for pain and suffering and the loss of the ability to do those things that gave your life value.” I then add, “Some people think you should offer up your suffering and that is how my grandmother felt. You should not seek money for pain and suffering. How do you feel about that Mr. Juror?
Tort Reform and the McDonald’s case
Everybody thinks there are too many lawyers and too many lawsuits. Lawyers are aware that insurance companies have poisoned the pool. The McDonald’s case, known as the hot coffee case. Most people think it’s crazy to sue for spilling coffee on yourself. Framed that way, it is crazy. Some lawyers try to explain the case by putting it in context. But I use it as an example of a frivolous lawsuit. And immediately look the jury dead in the eye and tell them my client’s case is not one of those cases.
Sympathy for the Defendant and the Inability to Mention Insurance
If you are lucky some jurors will tell you that they cannot award a substantial verdict unless they know the defendant has insurance to pay it. Like Maryland, you can not bring up insurance in Ohio other than to ask, “Has anyone ever worked for a casualty insurance company?” I broach the subject by asking, “Does anyone need evidence of the source of the payment before they can award a large verdict?” I’ve had jurors tell me they could not award a large amount unless they knew how it was going to be paid. That’s where you give the judge the opportunity to tell them that should not be a consideration, and no evidence will be submitted on that issue.
Telling the Jury the Amount You are Seeking in Damages
I think you need to tell the jury the amount you are asking for. And then follow up with, “If the evidence is such that it is a fair number would you hesitate to make an award just because of the size of the number.” I think you need to know who balks. In one wrongful death case I tried, one of the jurors said that the amount was not enough. Needless to say the defendant got rid of that juror.
A Defense Dirty Trick
Cagey veteran defense counsel will tell the jury this case is only between Mr. Plaintiff and Mr.Defendant. No one else is involved. They are telling the jury in so many words that there is no insurance. This is totally improper and should be met with an objection. You should ask the judge to give a cautionary instruction that it is not a correct statement. In Ohio, this can be reversible error.
Remember always be yourself. I retried a mistrial . In between the first and second trial I read David Ball’s book on jury selection. I tried to use his ideas in the second trial during jury selection. Afterwards the bailiff came up to me and asked what was wrong. At he first trial I was comfortable and had a great rapport with the jury. In the second jury selection I was stiff and stilted and unsure of myself. So develop your own style.