Blawgletter sat not long ago in a courtroom full of potential jurors. Among the potential jurors. As a potential juror. The experience both frustrated and enlightened.
The plaintiffs’ lawyer started by revealing that he represented a young woman and her two sons but — maddeningly for Blawgletter — told us almost nothing about them or the facts of the case. Instead, he disclosed just enough to frame his questions, and no more.
And yet he put people at ease about answering. He assured us that he wouldn’t embarrass anyone and wouldn’t criticize anybody’s truthful answers even if he or others might disagree. He also sincerely thanked people for responses that seemed to hurt his case. Anti-lawyer answers, anti-lawsuit answers, comments about greedy plaintiffs and lawyers, hostility to big damage awards, and worries about a tort tax and insurance rates. He said: "Thank you for your answer. I know a lot of people feel the same way you do. Who else here agrees with what Ms. Johnson said?"
Hands went up. Panel members said what they felt and thought.
But the voir dire didn’t reach its climax until a gentleman who couldn’t wait to talk got his chance. He said something like this: "I’m the CEO of a Fortune 500 company. I’ve just gotten back from meetings in Washington, D.C., with national leaders. We want to put an end to this kind of nonsense."
Did the plaintiffs’ lawyer bat an eyelash? No. He said he appreciated the CEO’s point of view and used his statements as a springboard for identifying others who shared it.
The defense lawyers, by contrast, could hardly wait to talk about the facts. They detailed the mother’s severe stroke a few weeks after she’d given birth, her permanent debilitation, the limits on her capacity to raise and care for her baby boys, and the hours she waited for care on a gurney in a hospital hallway as blood seeped into her brain. The lawyers emphasized that jurors will feel powerful emotions and that they will have to make wrenching decisions.
The experience, while frustrating for Blawgletter as a potential juror, dramatized the essential importance to trial lawyers of using voir dire to identify enemies. The lawyers on both sides labored not to convince the persuadable but to ferret out dogmatists and extremists, the people already certain of how the case should come out.
Many trial lawyers might shrink from inviting rants like the CEO’s. But consider that the speech achieved the opposite of what the businessman wanted. His "end this kind of nonsense" approach prompted fellow travelers to speak up — and told the plaintiffs’ lawyer who opposed his clients even before they’d heard the basic facts of the case.
Our justice system gives trial lawyers blunt instruments in the jury selection process — strikes for cause and peremptory strikes. The lawyers in the medical malpractice case that Blawgletter observed made skillful use of them. Go ye and do likewise.