I’M NOT HERE TO START A FIGHT

TRIAL LAWYERS CAN DO BETTER

JUDICIAL INTERVENTION (LIMITS; DISMISSAL OF SUGG; JUDGE CONDUCTED) IS PRODUCT Inefficient Boring Time bandit

BOTH SIDES ARE LEARNING 1 ST Know the law 2 nd Know principles of attorney voir dire 3 rd Collect information for judicial decisions

WITHOUT LEANINGS BY DECISION MAKERS SAME EVIDENCE, LAW & ARGUMENTS SHOULD LEAD TO SAME OR SIMILAR VERDICTS

WITHOUT LEGITIMATE EFFORTS BY THE PARTIES (THRU ATTORNEYS) TO WEED OUT BIAS THRU PANEL QUESTIONING (GROUP DYNAMIC) RANDOM CHANCE IS INJECTED INTO THE OUTCOME

SEZ WHO?

C.Challenges for cause should be available at the request of a party or at the court’s own initiative. 1.At a minimum, a challenge for cause to a juror should be sustained if the juror MAY be biased for or against one of the parties 2.In ruling on a challenge for cause, the court should evaluate the juror’s demeanor and substantive responses to questions. If the court determines that there is a REASONABLE DOUBT that the juror can be fair and impartial, then the court should excuse him or her from the trial.

SHOULD THE PRIMARY BASIS FOR SEATING A JUROR BE A RESPONSE TO THE “MAGIC QUESTION” “CAN YOU BE FAIR TO BOTH SIDES & DECIDE SOLELY ON EVIDENCE & LAW” (setting aside leanings for any party)

DOES THAT REALLY EXPLORE IF ANYTHING IN THEIR BACKGROUND “MAY” CREATE A “REASONABLE DOUBT” SUCH THAT THEY MIGHT FAVOR ONE PARTY AT THE OUTSET

REAL WORLD DECISIONS ARE ALWAYS INFLUENCED BY PREEXISTING OPINIONS & SNAP JUDGMENTS

SEZ WHO?

SO SEZ SOCIAL SCIENTISTS STUDIED ABILITY BRIGHT, FAIR MINDED PEOPLE TO “SELF DIAGNOSE” (i.e., to answer) Q CAN YOU BE FAIR HERE? Follow evidence Follow law

THE JURORS DON’T KNOW (IF THEY ARE BIASED) BECAUSE THEY CAN’T “DIAGNOSE” THEIR OWN BIAS IN THIS CASE

SOCIAL SCIENTISTS SAY THE DIFFICULTY TO SELF DIAGNOSE INCREASES IF 1.Q is leading 2.Asked by an authority figure 3.Surrounded by peers in public 4.Jurors know effect of either answer (impacts public view of system)

SEATING A PANEL BASED ON “SELF DIAGNOSIS” LEADS TO DECISIONS INCORPORATING 1.Random chance (v. logical analysis) 2.Reliance on demographic (age; gender; race; religion; appearance) 3.Advocacy to seat those who already lean your way

SEZ ONLY IVORY TOWER ACADEMICS?

HOW TO AVOID BORING/INSULTING JURORS Keep it moving (jurors disengage if already questioned or if you are wasting their time) Gather Information (cause & preemptory) BIAS ANALOGY

TELL JURORS WHY DON’T TAKE THE FIRST 12

CHALLENGE FOR CAUSE 1.Bias analogy 2.Q’s as to your concerns (why advocacy is necessary) 3.Would your experience/feeling ● Start you out - Leaning - Strike 1 - Behind a step ● Cause lean if there is conflicting evidence (regardless of what conflicting evidence was) 4.OPEN question a. To establish details of a record to support cause b. To “rehabilitate” (v. “are you fair”)

PREEMPTORY CHALLENGES The more juror talks, the greater ability 1. Of judge to rule Batson Motions 2. Of attorney to wisely use the P.C.

IT’S THE LAWYERS JOB TO FIGHT LIMITING

CONTRAST WITH DQ Lawyer:Appearance of conflict¹ Judge:Might impartiality reasonably be questioned² a process taking weeks not hours 1 Code Ethics 2 28 USC

FIGHT AGAINST ARGUMENTATIVELY PHRASED QUESTIONS

I. ARGUMENTATIVE CONDITIOING OF ATTITUDE ∏ ● OK for a doctor to refuse to get out of bed to come in during the night to see his patient ∆ ● Doctors intent to hurt patients?

II. COMMIT TO SPECIFIC VERDICT Will you feel comfortable finding for: ∏ if you conclude a doctor did not get out of bed to come in during night ∆ if the patient outcome can occur w/o negligence In both Court asks the question (is this negligence?)

TRIAL LAWYERS HAVE DONE THIS TO OURSELVES: WE CAN DO BETTER