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.  

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 Stéphane 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 Stéphane 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.

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!

Veteran Blues? ~ by Legal Pub

Veterans Affairs Secretary Eric Shinseki is facing a great deal of scrutiny.  Shinseki recently published an open statement reaffirming his commitment to restoring integrity to a department plagued with allegation of death resulting from delayed treatments at veterans hospitals. USA Today.  Did the letter offer solutions or simply restate the problem?  The retired U.S. Army four-star general, Shinseki, merely acknowledged the obvious when he said that delayed treatments -- up to 115 days on average at a facility in Phoenix, Arizona -- are "reprehensible." In the spirit of fairness, General Shinseki also said that he is taking action to "implement recommendations" from the inspector general report.

But is that enough?  Merely challenging the leadership to do better seems like an oversimplication of a complex issue.   General, can you be more specific by outlining your proposed action plan?  Either come up with a plan or take Sens. Al Franken (Minn.), Kay Hagan (N.C.), Jeanne Shaheen (N.H.) and John Walsh (Mont.) recommendation to resign.  It is a legitimate option that injured and sick vets didn't have during the term of their service or now that they are in need of medical care.

President Barack Obama appeared troubled by the OIG report but failed to suggest any recommended course to General Shinseki.  So, Mr. President, do have a suggested action plan? While the general is committed to doing his duty, it is becoming increasingly clear that no one seems to understand what the job requires.  In sum, it requires an action plan and then execution of the plan.  Certainly the general's 38 year Army career required him to outline a battle plan before he had his soldiers charge into enemy fire. So come on, Sir, let's hear your action plan and see your implementation before another of our countries heroes unnecessarily  dies.

Abuse by Unlicensed Professional? ~by Legal Pub

Did an unlicensed professional, lead people to believe he was a medical doctor?   Did this same man run a facility for adolescents with mental illness and drug abuse problems for decades despite complaints to state regulators alleging abuse?  These questions are now being asked about an inpatient treatment center that operated in Wheat Ridge, Colorado, for almost 30 years.

15 civil suits and over 20 complaints to state regulators have been alleged against Adolescent and Family Institute of Colorado (a.k.a. AFIC.) Allegations range from verbal to physical and sexual abuse.  In some cases, fraud has also been alleged against AFIC's president and founder, Alexander Panio Jr.  Apparently, Alexander was not a licensed psychiatrist or psychologist in Colorado. (Panio got a doctorate in psychology in 1979 from a distance-learning school. Its accreditation at the time was not government-approved and it no longer offers PhDs in psychology. Panio did work as a faculty member at Northwestern University from 1972 to 1978.) 

In one civil suit, parents claim their daughter Jessica Palmer "was repeatedly told by AFIC staff that she was a 'bitch,' 'dumb,' and a [expletive]. She was told that her parents didn't love her and that she was the source of all their problems."

The Palmers' lawsuit claims that  "As a result of her experience at AFIC, Jessica Palmer became more depressed, suicidal and filled with self-loathing," Jessica Palmer took her own life in 2012 after leaving AFIC.

Other patient lawsuits allege abuse include sexual misconduct during physical exams.  , such as fondling and measuring genitalia. Complaints of verbal abuse were made to the Colorado Department of Human Services from 1990 through 2012.  Another lawsuit alleges that a patients medication was inappropriately  abruptly terminated without tapering. It is alleged that the abuse of this patient also included "... being told that he's basically, no good, just the scum of the earth, that he's just a liar and a manipulator and he's really not sick."

The Colorado Board of Registered Psychotherapists issued Panio a cease-and-desist order in March of 2013. Panio appealed. The state Department of Regulatory Agencies is waiting for a ruling by the administrative law judge. The state never shut down AFIC. The facility voluntarily closed on July 1, 2013, Many of the employees are licensed to continue working. No criminal charges have been filed involving AFIC. 

AFIC, Panio and staff members, deny all of the allegations in the civil complaints. It is the plaintiffs who have the burden to prove their contentions. The defendants have no burden to disprove the allegations. (Panio is represented by attorney Katherine Fritz.) 

U.S. Supreme Court Supports Prayer ~by Legal Pub

The U.S. Supreme Court upheld the constitutionality of Christian prayers at the start of local council meetings.   Prayers are okay as long as they do not denigrate non-Christians or try to win converts according to the court's 5-4 decision in Greece v. .

The decision seems to follow a 1983 decision in which the court upheld an opening prayer in the Nebraska Legislature.  Justice Anthony Kennedy said that forcing clergy to scrub the prayers of references to Jesus Christ and other sectarian religious figures would turn officials into censors. Instead, Justice Kennedy suggested that prayers should be seen as ceremonial and consistent with traditions. "The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce nonbelievers," Justice Kennedy said. 

A federal appeals court in New York had previously ruled that Greece violated the Constitution by opening nearly every meeting with prayers that focused on Christianity.  Similarly, a three-judge panel of the 2nd U.S. Circuit Court of Appeals had ruled that even with the high court's 1983 ruling, the practice of having one Christian prayer after another amounted to the town's endorsement of Christianity.

Justice Elena Kagan, led the dissent. Kagan was joined by Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.