Monday, June 23, 2014

Are There Tried and True Principles For Jury Selection ~by Legal Pub

Everyone wants to know the secret to jury selection.  Some so called experts in the field are willing to offer their guidance in exchange for payment.  Many old time trial attorneys are hesitant to ever share  their "tricks."  So are their principles to successfully selecting a jury?  A distillation of the experience of those willing to share their opinions in the Legal Pub Arena follow.  These trial lawyer suggestions may be of help to some unfamiliar with the social psychological principles associated with jury selection.

Principle One:  Jury selection is not about selecting the right members of the jury.  It is about eliminating the jurors who give you the impression that they can not be fair to your client either due to conscious or subconscious reasons. This principle takes precedent over all other principles.

Principle Two: If principle one is the guiding light, how do you accomplish this task given a limit on peremptory strikes?  The best way to get juries to respond honestly is to attempt to establish a rapport which includes a relationship whereby the juror will not be embarrassed or punished by revealing their true feelings.
Thank a juror for any honest response whether it tends to show favor or disfavor to your client's position. If you are able to do this, jurors will be more open about revealing information about their belief system.

Principle Three:  Educate the jury.  But be honest!  Don't misstate the law. Do not misrepresent the facts you expect to be involved in the case.  For example, if the case involves a gruesome injury, it is appropriate to ask potential jury members if they would be offended by graphic photos. However, such an inquiry would not be appropriate in a minor whiplash case.

Principle Four:  Be your self.  Jurors normally have a predisposition not to like lawyers.  Be yourself, not Clarence Darrow.  It is more likely that a juror may relate to you if you do not pretend to be someone that you are not.  If you are normally laid back, don't attempt an aggressive style in the courtroom or it may backfire.  The last thing an attorney should want is one or more jurors thinking that an attorney is fake.  Building rapport begins with jury selection and continues throughout the trial.

Principle Five:  Ask questions; do not lecture.  Most people prefer to converse with someone instead of being lectured.  Ask your question and then legitimately listen to the response.  Follow up with questions to help clarify the response.  Do not argue with the potential juror. Treat voir dire like a casual conversation; not a cross-examination  Opinions and biases will unlikely change.  It is better to understand the potential juror's opinions than to try to change what is unlikely to be changed.

Principle Six:  Get in touch with a potential jurors feelings.  How one feels about an essential issue in a lawsuit is more important than global questions.  Facts in a jurors life may be important, but your case is more likely to hinge upon a juror's feelings associated with those facts. If a potential juror has unpleasant or frightening ideas, it is preferable that you discover them during Voir Dire than it is to have them concealed until jury deliberation. Sometimes it is appropriate for a lawyer to share his own prejudices.  Since attorneys want jurors to share their own personal experiences and opinions that will make them predisposed to find against your client, this technique may help reveal jurors that might not be appropriate for this particular case. A juror needs to know that his or her bias does not make them a bad person or unable to be fair. An attorney needs to let a potential juror know that an excused juror in this case may be the perfect juror for the next.

Principle Seven:  Let the potential jurors do the talking.  Some lawyers like to hear themselves talk.  Others talk because they are scared of what potential jurors will say.   If;you have a strong defense, it is better that a juror volunteer the defense as his or her own idea than for the attorney to state the defense and ask if jurors agree. Let the potential jurors talk and keep them engaged in the process of jury selection.

Principle Eight:  Use plain English.  Do not try to impress potential jurors with big words.  Speaking at a level that is comprehensible not reprehensible.   Johnny Cochran often used large words which might have conveyed an image of arrogance. While it may have worked for Cochran, it does not work for most trial attorneys.  If a juror thinks that the attorney believes he is better than the juror, the attorney's client may be unjustly punished.   Use everyday language and the same tone that you might use talking to someone while waiting in the checkout line of Walmart.

Principle Nine:  During jury selection, try not to use notes!  Jurors are more impressed and tend to give more honest feedback if the attorneys questions are not scripted.  Prior to jury selection, have a few subjects you want to discuss with the jurors and then decide a couple different ways to get the jurors talking about those subjects.   

Principle Ten: Don't argue! If a potential juror says something negative, ask the remaining panel, "How many of you feel the same way?" If a juror says something contrary to your theory of the case and you argue, you will not only stop that juror from being truthful but you will also block other potential jurors form being truthful.  Furthermore, it also decreases the chances that a jury will like you.  The two best questions are as follows:

•"How do you feel about [issue]?"
•"Can you think of a type of case where you might not be an appropriate juror?"  

In conclusion, even if you forget all of the principles of jury selection, let this simple phrase guide you.  During jury selection be the lawyer a potential juror would want representing them.  Always keep this in mind when addressing the judge, opposing counsel, court staff, witnesses and the jury. How a lawyer treats others reflects on our clients and our profession.   Establish rapport and convey mutual respect with the jurors.    The goal of jury selection is to not only predict how jurors will likely receive your case story, but also to predict the way jurors will interact with each other during deliberation.   After all, no one juror reaches a unanimous verdict by him or her self.  

Thursday, June 12, 2014

Post Traumatic Stress Disorder Discussion at Legal Pub ~by Dr. B.

Posttraumatic stress disorder is real and it is a serious condition!(PTSD) has been known to develop after a person is exposed to one or more traumatic events.  Such events range from an assault, a rape, serving in combat or after a near death experience.  The common denominator is that the victim experienced an intense fear, horror, or sense of powerlessness. PTSD symptoms may include recurring flashbacks, avoidance or numbing of memories of the event, and overt agitation.  If symptoms continue for more than a month, sufferers should seek psychological treatment.

To be clear, most people do not experience PTSD after trauma.  While plaintiffs involved in litigation often claim the condition as an element of damage, most claims appear to be motivated by financial gain associated with litigation.  Raw data suggest that women are more likely to experience higher impact events, and are also more likely to develop PTSD than men. (See National Collaborating Centre for Mental Health (UK) (2005). Also see "Post-Traumatic Stress Disorder, Sec. 2: Incidence and Prevalence" and "Post-Traumatic Stress Disorder: The Management of PTSD in Adults and Children in Primary and Secondary Care". NICE Clinical Guidelines, No. 26. Gaskell (Royal College of Psychiatrists). Raw data collected over many years confirms that children are less likely to experience PTSD after trauma than adults.

Most commonly afflicted with PTSD are combat veterans who are exposed to war. According to St├ęphane Audoin-Rouzeau and Annette Becker, "One-tenth of mobilized American men were hospitalized for mental disturbances between 1942 and 1945, and, after thirty-five days of uninterrupted combat, 98% of them manifested psychiatric disturbances in varying degrees."  See World War One- A New Kind of War/ Understanding the Great War: Part II pp. 14-18 by St├ęphane Audoin-Rouzeau, Annette Becker. The term post-traumatic stress disorder (PTSD) became common terminology in the 1970s.  Mental health formally recognized the diagnosis in 1980. The term was formally recognized world wide as a diagnosis in 1980.  (See When Trauma Tips You Over:  PTSD Part1, All in the Mind. Australian Broadcasting Commission. 9 October 2004).  Fortunately, most veterans get over PTSD.  VIDEO LINK.

Recently, it has been opined that family member of loved ones who die suddenly may exhibit PTSD type symptoms. While sudden death of a loved one may cause emotional distress, unless the victim is exposed to the actual trauma then the diagnosis of PTSD should not be given.  Furthermore, in such cases involving litigation, the the impact requirements of most states will bar compensation for the alleged symptoms.

Monday, June 2, 2014

Trial By Combat ~by Legal Pub

A modern day jury trial has sometimes been describes as a street fight between men in suits.  Where does this imagery originate?   HBO Game of Thrones has recently dramatized trial by combat as an alternative to trial by jury on the facts.  Is there any historical basis for this alternative dispute resolution or is it something that was dreamed up by American author George R. R. Martin? 

"Judicial Duel" a/k/a "trial by combat" was a Germanic way to settle accusations in the absence of a confession or witness.  Unlike Martin's books or TV show, the two actual litigants fought each other, one on one.  The victor of the fight was judged as the winner of the dispute.  This Germanic law appears by reference throughout the Middle Ages in Europe. References to such duels virtually seems to disappear sometime toward the end of the 16th Century.  History reveals that some exceptions to the one on one rule have occurred.  For example, Louis the Pious required witnesses to fight each other concerning cases involving the clergy. In 2015, the Fourth Lateran Counsel officially discouraged the use of duels to settle disputes. Subsequently, Pope Honorius III requested that the Teuonic order cease the practice altogether. Nevertheless, in the 15th Century, fencing schools in Germany were still training people for such duels. (Was this one of the first law schools?) As of 1459 Thott codex specified that charges including desertion, murder, perjury, rape and  treason allowed for trial by combat in the absence of witnesses.

At some point in the 16th Century, a person facing trial by combat was allowed the assistance of a squire (a second.)  (This would appear to be analogous to today's "second chair" in a jury trial.) The squire would perform similar work to a "local counsel", arranging negotiations, forums and agreeing to certain equipment or weapons. The courtroom (dueling ground) was typically 60 square feet. The last litigant standing was declared the victor.

Those wishing to comment on the books of Martin or Game of Thrones may do so.  Spoiler alert to anyone who wants to be surprised by future shows, etc.


Is There Ever A Best Time For Surgery? ~by Legal Pub

Is there ever a best day for surgery? A recent University Medicine Berlin study suggests that some times may be better than others.  Specifically, the study supported the conclusion that patients are more likely to face complications following weekend or afternoon surgeries. Data from the study reported that the risk of post-surgical death on the weekend rose 22 percent.  Similarly, the study showed a 21 percent increase in deaths following afternoon surgery. Perhaps most surprising; however, is that those having surgery in the month of February had a 16 percent greater chance of death.

Researchers considered data from more than 200,000 patients from 2006 to 2011 in formulating their conclusions.  From the data one might conclude that it is preferable to perform elective surgery on weekends, afternoons, or around Valentines Day when doctors and nurses may be distracted by Cupid's arrows,
 
Does standard of care differ throughout the day and between weekdays and weekends?  One would hope not, but the statistics are alarming.  According to the Medical Daily "the first time, investigators have shown the same cyclic differences for post-surgical deaths."   While this suggests that more research may be needed, Legal Pub does not advocate volunteering for any unnecessary surgery regardless of the time of day or week!