We sometimes say "tart" when we mean "tort" in Texas.  But at least we know the difference.

Say you obey the jury summons and show up with the 40 or so other potential triers-of-fact in the pews of the downtown, big city U.S. district court.  Your heart rejoices that now, at last, you can participate in our system of civil justice!  You can almost taste the chocolate-chip cookies that one or more of the panel members will bake for the group before verdict time.

And why shouldn’t you feel joy?  You’ve served more than a dozen years as president — and founder! –of the local Citizens Against Lawsuit Abuse club.  You’ve attended national "tort reform" conventions (except you don’t put it in quotes) and rubbed elbows with general counsel from the world’s most successful insurance, petrochemical, investment banking, accounting, and manufacturing concerns, among others.  You’ve educated your fellow citizens that lawsuits sap America’s economic supremacy, that civil plaintiffs seek the jackpot kind of justice, and that people claiming pain and suffering should, well, get over it.

During voir dire, which the nice judge conducts personally, you learn the plaintiff claims that a tire-splitting machine mangled his hand.  Your excitement rises.  You hear the judge ask whether any venireperson (including you) holds "any beliefs — philosophical, moral, religious or otherwise — that would make it difficult for you to sit in judgment in this case."  Her Honor also inquires whether everyone "could be impartial to both sides". 

You think, without a quiver of conscience, that you’ll have no difficulty sitting in judgment.  Of course you won’t!  But the impartiality thing makes you slightly uncomfortable.  Still, you keep your hand down and — who’d’a thunk it — wind up serving as foreperson on the jury that finds for the defense in all respects.

The judge in an actual personal injury case that involved the mangling of a hand by a tire-splitter asked about difficulty of sitting in judgment and impartialness but refused questions regarding opinions about personal injury lawsuits, advocacy of tort reform, and attitudes about pain and suffering.  The plaintiff lost.  Yet the Seventh Circuit held today that the district judge did not err, holding that her inquiries "more than adequately allowed the parties to exercise their challenges [to potential jurors] intelligently."  Alcala v. Emhart Industries, Inc., No. 06-3153 (7th Cir. July 25, 2007).

Blawgletter has no way of knowing whether a tort reformer made his way onto the jury by denying, silently to himself, that he couldn’t judge the case impartially.  But neither could anyone else in the courtroom.  And who can explain why a history of opposing plaintiffs’ lawsuits doesn’t deserve at least some exploration in a civil case?  Or how the questions "more than adequately" asked about bias?

Barry Barnett

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