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Jury Selection - "The Reasonable Person" Strategy

June 17, 2015
By: Frank Scahill

Jury Selection - "The Reasonable Person" Strategy: Selecting a jury on a case with serious injuries or a fatality presents obvious difficulties for a defendant. Unlike jury selection on a case with questionable soft tissue injuries, and perhaps a defense that the injuries do not rise to the level required to recover in New York (auto accident threshold defense), where the defense attorney can take the offensive, planting the seed that the case is a sham, in a serious injury or fatality case the defense attorney must tread lightly. By the time the plaintiff's attorney is finished with his or her presentation and questioning of the prospective panel of jurors, if the plaintiff's attorney has done their part, the jury should be hostile to the defense. They may even hate you before you open your mouth. You represent the guy who killed the plaintiff, or put him in the hospital for months with multiple surgeries leaving the plaintiff disabled. You, Mr. Defendant, are the owner of the premises where you allowed unsafe work practices to cause an accident. You failed to repair a known defect in your building that injured an innocent tenant. You certainly have an uphill battle convincing the jury that you have a liability defense or perhaps the plaintiff's pre-existing condition was the cause of his surgeries, not your accident.

What do you do to start? By all means skip the speeches and please no bad jokes or talk of other cases you tried. Think of yourself as the mythical "reasonable person" talked of in the Pattern Jury Instructions. Jury members like to be reasonable. They will hear that phrase over and over from the Judge at trial. "What does a reasonably prudent person do?" "Negligence may arise from doing an act that a reasonably prudent person would not have done under the circumstances." "Did the defendant act as a reasonably prudent person, under all the circumstances confronting her?" Why not paint yourself with the banner of the "reasonably prudent person" and cast the plaintiff as "unreasonable". Try some softball questions and listen instead of talking.

After your short introduction, some questions to the panel at large:

1. "You have all heard from plaintiff's counsel about this case, would you all agree the plaintiff has the right to come to court and seek compensation if he was injured due to someone else's negligent conduct?" (Heads all nod.) You say, "Does everyone agree that is reasonable?"

2. "I represent the defendant in this case, the person accused of causing the injury by negligent conduct, would you all agree that 'John Innocent', the defendant in this case (always use your client's name, first if possible, and do not say 'My Client'), is entitled to a fair trial? Does that seem reasonable to you?"

3. To the first six jurors in the box you ask, "Have any of you made up your mind about the case and determined the plaintiff is entitled to your verdict awarding him money?" If all six raise their hand, settle the case. Hopefully no one budges so you can say next, "Do you think it is fair and reasonable that you get to hear all the facts before you make up your mind?"

4. "Are you open to the possibility that the plaintiff may be the only person responsible for his own accident? Do you think it is reasonable to hold a person accountable for his own actions when they are in a court of law?"

5. "Are you open to the possibility that the plaintiff may be exaggerating the extent of his injuries because he has a lawsuit pending and is looking to you, the jury, to award him money from this accident case?"

6. "If the proof and the evidence show the plaintiff violated the law or a regulation designed to protect the public, would you have any hesitation holding the plaintiff accountable, despite the fact he was seriously injured? Is that a reasonable position?"

7. "Do you think it is reasonable for a defendant being sued in a personal injury lawsuit (by the way, I say "personal injury lawsuit" or "personal injury plaintiff" as much as I possibly can), to call witnesses, lay people and experts, so that you can see his side of the story?"

8. "Will you wait until you hear the whole case, and the Judge's instructions to you, before you make up your mind about who's right or wrong in this case? Is that a reasonable thing to ask?"

9. "Will you give me the opportunity to present John Innocent's case in full to you before you reach a verdict?"

10. "Will you give me the opportunity to earn your trust? If I deserve to lose will you tell me that? If I deserve to win the case on behalf of John Innocent can you also tell me that? Does that sound reasonable to you?"

So maybe, just maybe, they don't hate you now. They "see the light" that a person is entitled to defend themselves and maybe the plaintiff is being unreasonable.

Follow up the opening questions with questions to each individual juror. You need to find out what makes them tick; any bias or prejudice they have against your case or client; similar experiences they have in their family which may disqualify them. At least you will weed out the jurors that will never listen to you and are poison on the panel against you.

Remember be "reasonable" at all times. It is a great theme for a case and you can go to town on closing remarks with that theme.

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