The process of identifying the conservative or defense-leaning individuals who can be persuaded to find negligence and give money is complicated by the problem that social researchers have done numerous studies showing self-identification is frequently in error. A prime topic, helpful in identifying jurors with a pro-business bias, will involve questions about business ethics. Conservative folks tend to show a strong interest in values and ethics. Consequently, the following questions will help in the identification process.
What do you think of business enterprises that lose testing data?
What do you think about a company that is casual about quality control?
Can a company ignore small errors in the assembly process?
The negative attitudes toward lawsuits, plaintiffs and plaintiffs attorneys have become very generalized. People in all spectrums of our economy seem convinced that people are too ready to sue. Not only do prospective jurors feel people are too ready to sue, they also feel the reason for this is that people take too little responsibility for their own actions these days. The jury pool is also filled with individuals who believe lawsuits take money out of their own pockets. This attitude leads individuals to be very suspicious of anyone who files a lawsuit. This is a notable concern that counsel should take advantage of during the voir dire process. Asking questions and developing a dialogue with panel members aimed at turning this bias in favor of the plaintiffs is doable with the message that it is the defendant's behavior in producing the injury-producing circumstances that is the reason for the legal action, which in turn has taken jurors away from their families.
A key part of what must be done is to identify those individuals whose attitudes about tort reform are so extreme as to be unreachable and find new ways to reach those who have some of these attitudes, but whose attitudes haven't become so polarized that they are unwilling to listen to the plaintiff's perspective. A thematic approach to tort reformers during the questioning process is to use the accountability argument to draw out pro-individual and pro-business attitudes. The critical issue here is defining jurors who agree and disagree with notions related to individual and corporate accountability when someone is injured.
It's not a science. Start with that undeniable conclusion. Then, consider the scope of the issues jurors must resolve in your case and make sure each and every issue is discussed in voir dire. Don't leave any issues to chance. Define for yourself the juror attitudes you can live with and those you know for sure will poison your client's chances of winning. Having prepared yourself on these subjects before voir dire, pose questions that allow panel members to express their views, which in turn allows counsel to identify jurors who are angry, empathetic or fearful.
Larry E. Coben is a shareholder at Anapol Schwartz. He has served as lead trial counsel in some of the most complicated civil trials and appellate court proceedings in the country, and is widely regarded as an expert in "crashworthiness" and motor vehicle safety matters.