How to Approach Jury Selection in Premises Liability

The most difficult aspect of any premises liability case is liability; specifically, it is the fact that plaintiffs usually control most of the circumstances surrounding the injury. Plaintiffs in premises liability cases have control over where they are looking, what they recognize as dangers, and how fast they are walking. By comparison, people in car collisions do not enjoy such control.

I suspected early on in my practice that it is this control that makes a jury uneasy. It turns out that my suspicions were true. Research on the “fundamental attribution error” has shown that a potential juror is more likely to cast blame on personaility-based explanations (that a plaintiff was clumsy, inattentive, or distracted) than on environmental or situational ones (such as a slippery floor or an odd edge on a sidewalk). Similarly, I have learned of the “defensive attribution bias”. According to this bias, people tend to view themselves as smarter, faster, and stronger than others. The average juror thinks of ways in which he or she would have avoided being injured; jurors using this reasoning often cast blame on the plaintiff, who “should have been more careful”, and occasionally on the defendant, who “should have clean up that accident-causing mess”.

It is my experience that jurors tend to hold the first party that they focus on responsible. Focusing on the plaintiff’s control in a situation allows jurors to quickly conclude that mishaps were controllable and that the plaintiffs could have avoided their injuries by paying closer attention to environmental factors. The trick from a plaintiff’s attorneys’s position is thus to focus jurors’ attention on the defendant. If the jurors can conclude that the defendant had control in a premises liability case and that the accident could been avoided altogehter, then they will more readily accept your evidence in support of this theory and reject evidence to the contrary. This process is knows as “confirmation bias”.

It is with this backdrop that we need to approach jury selection, with the ultimate goal of getting selecting jurors who will be able to picture themselves similarly-situated to the plaintiffs we represent. Because of jurors’ natural tendency to hold themsleves blameless under the defensive attricution bias mentioned above, they are more likely to look elsewhere when affixing blame. Once we are able to tap into jurors’ instinct for self-preservation and help them identify with the plaintiffs in premises liability cases, those jurors will be much more likely to attribute liability to the premises’ possessor.