Oregon

How to be Effective in Jury Selection: Be Respectful and Personable

“You will attract more bears with honey than with vinegar.” It may be a cliche, but it is nevertheless true.

During voir dire you should always be respectful of a potential juror’s opinion, no matter how much you might disagree with it. Moreover, thank potential jurors who disagree with your position for sharing their opinions. By thanking them, you signal to the other prospective jurors that it is acceptable to voice an opinion that is contrary to your own.

Once you draw out a negative juror opinion, do not argue with or chastise the opinion holder. Don’t try to influence or to teach. In an hour’s time, you will not change an opinion that it took a lifetime to form. Instead, use that negative opinion to identify other “bad” jurors (those who agree with this negative opinion). Use this opinion to get others talking. In the end, ask the “bad juror” if he or she could be fair to your client if you allow him/her to remain on the jury. This accomplishes two things: (1) it signals to other jurors that you are respectful, and (2) if you have to get rid of three worse jurors, it signals to this juror that you are a person of your word. Both of these solutions build credibility for you in the eyes of the jury pool.

In addition to being respectful, you should also be personable. I like to share a bit about myself, and I believe that sincerity builds credibility. For instance, I hail from Grants Pass, Oregon, where I helped my grandfather raise Hereford cattle, helped an old dairy owner down the road run his dairy, and worked in two wood mills. Needless to say, I knew numerous people whose political and world views were different from my own. I talk about my grandfather in voir dire. I also talk about my grandmother, who is very liberal. I like to ask the prospective jurors whether they are more like my grandfather or grandmother on a given topic, and why. By personalizing the opinions and showing that good people do not always agree, I am encouraging potential jurors to talk openly so that, in their candor, I can better assess them as potential jurors in my case.

Hopefully the five pointers that I have outlined in this blog post will be of some help. Voir dire is a moving target – it changes with the times, depending on current events. I am willing to bet that the approach was much different prior to “the McDonalds” case or tort reform. Even so, I believe that the pointers outlined in this and my previous four posts are timeless and that they can be helpful in your next trial. I wish you the best of luck!

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile

How to be Effective During Jury Selection: Access the Reptilian Brain

The fourth tip that I want to blog about in this series of posts concerning the voir dire process at trial concerns what is called “the reptilian brain”. Recent research has been performed concerning the reptilian brain and David Ball spoke on the subject at the 2008 American Association of Justice (AAJ) Winter Convention. The theory goes something like this: there is a primitive part of the brain that subconsciously causes us to make decision that will protect us and our offspring. If you can frame the issues in your case such that the jury associates them with their own well being and that of their families, then they are more likely to act toward and make decisions more favorable for you.

To tap into the “reptilian brain”, I use jury selection to look for traits or life experiences that are shared with my client. I try to emphasize those shared traits during the course of trial so that clients make that connection on their own, without me having to explicitly point it out. Moreover, assuming that the case is a motor vehicle accident case, I ask whether they consider the safety of themselves and their children while driving to be important. I expand upon that question and enter into dialogue with potential jurors about the applicable laws governing other drivers. I specifically ask those in the jury pool whether they believe that someone who breaks those laws should be held personally accountable for the harm caused.

While this is an area that I am still developing, studies suggest that it may be one of the most important. If done properly, appealing to one’s reptilian brain sparks a subconscious desire in jurors to find for your client.

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile

Jury Selction Trick: “Attitude” vs “Influence”

I stumbled across a trick a few years ago at a continuing legal education (CLE) class that summarized what we all do instinctively and I wanted to share it with you in this third installment of my voir dire tips blog series.

Here is the trick that was articulated for us all at the CLE: for each potential juror, you draw two small boxes at the bottom of the sheet of paper on which you or your associate is taking notes.  The first box represents the juror’s attitude relative to your side.  I use a “1” to “5” scale in which “1” indicates that the potential juror is favorable and “5” indicates that he or she is unfavorable.  The second box represents the juror’s influence on or potential influence on others.  Again, I use a “1” to “5” scale on which “1” indicates that the juror is or has the potential to be influential and “5” indicates that the juror is not or that I doubt they are likely to become influential.  These are usually the only notes that I personally take during voir dire.

Once each juror is assigned attitude and influence numbers, your peremptory challenges become easier.  Clearly, anybody with a “5” on the attitude scale and a “1” on the influence scale (“5”-“1”) is out.  On closer calls, the rating system becomes much more useful.  I would generally boot a “4”-“2” over a “5”-“4”.  The “5”-“4” may have a more negative outlook toward my case, but the “4”-“2” – who I would also be concerned with because “4” indicates a negative stance toward my position – is much more influential and, thus, is the person who I would elect to get rid of.

If you are left looking at a pair of “3”-“3″s, review what each said with your note taker and, in the end, always trust your gut.

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile

Large Winter Weather Slip and Fall Settlement Obtained for Central Oregon Woman

It had been snowing on and off for several days at the time of this Central Oregon slip and fall incident. Our client had just returned home to her Bend, Oregon, apartment complex after a day at work.  She was walking along an outdoor pathway from the parking lot to her building when things got messy. Quite unfortunately for our client, the apartment complex’s management had decided not to sand or put deicer on the pathway along which she was walking, leaving it slippery very difficult to navigate.  To make matters worse, fresh snow had fallen on the pathway obscuring the treacherous black ice that lay beneath.

Our client walked toward her apartment exercising care, but her foot slid on a patch of snow-covered ice and she fell into her stairway head-first.  Her two front teeth were knocked out and she received a deep laceration on her upper lip.

This client made contact with the apartment comlex’s insurance company immediately following her acident.  The insurer agreed to pay for her accident-related medical expenses, but it never did.  When she couldn’t get the insurance company to live up to its word, she hired the experienced premises liability injury attorneys at Dwyer Williams Dretke to represent her and to secure her medical reimbusement.

Once hired as her lawyers, we immediately went to work contacting and negotiating with the insurance adjuster.  We faxed over copies of the bills that needed to be paid along with the anticipated cost of future medical care that our client would need based on injuries that she sustained in this slip and fall accident.

After several rounds of negotiation, all of our client’s bills had been paid in full and we were able to secure her a settlemtent that fully compensated her for her pain and suffering as well as for the future cost of her medical care.  Our client was happy with the ultimate outcome in this matter.  Additionally, she informed our personal injury law firm that the apartment complex’s management now routinely puts sand and deicer down along all of the complex’s pathways during wintertime to avoid further slip and fall accidents like this one.

Premises liability is that area of personal injury law which concerns landowner liability for accidents and injuries that occur on their premises.  In the state of Oregon, landowners have responsibilities to members of the public who come upon their land.  These responsibilities differ depending on the kind of visitor you are on their premises: an invitee, a licensee, or a trespasser.  Premises liability is a complex and nuanced area of personal injury law, so if you or someone you love has been injured in a slip and fall accident, you should contact an experienced and competent premises liability attorney at once.  The lawyers at Dwyer Williams Dretke PC can help you develop and present your premises liability personal injury claims and to maximize the settlement that you are offered after being injured in a slip and fall injury.  Contact us today – we can help you.

“Open and Obvious” Conditions and Unreasonable Danger in Premises Liability

Instructing Potential Jurors about Open and Obvious Conditions

An “open and obvious” condition is not a total bar to recovery in premises liability cases because to hold so would interfere with the purpose of comparative negligence statute. Indeed, the “open and obvious” defense is in fact the dfense of assumption of the risk.

The law notwithstanding, this is the argument that causes me the most angst.  On one hand, we must show that the condition was known, or should have been known, by the defendant.  On the other hand, if the condition was so obvious then jurors may want to hold your client at fault.  Here are my suggestions:

  1. Focus on knowledge and appreciation of the danger.  It is the danger itself, not just the condition, that must be obvious before one can be comparatively negligent.  When selecting jurors in a premises liability case, be wary of jurors who are quick to state that a condition is obviously dangerous.  However, this may not be a sure preemption since the juror may feel that, due to the condition’s obviousness, the owner should have fixed it or that it constitutes something “unreasonable dangerous” (see discussion below).
  2. Focus on invited distractions.  Your client is only held to the standard of a reasonable person under the circumstances.  Focus on all of the advertising, products, other customers, goods, and signs over which the defendant has control.  Ask if, given all of these distractions, it is reasonable that a person might not recognize a defect.
  3. Focus on the importance of the trip.  “Unless the danger is so apparent and so great that it is unreasonable for him to encounter it in view of the purpose of his use… the landlord is subject to liability to him notwithstanding his knowledge of the existence of this condition.”  This is really just common sense and it works well where the trip is mandatory – an icy walkway ourside one’s door, for example.

What is Considered “Unreasonably Dangerous”?

When the condition on the premises is unreasonably dangerous, the duty imposed on the possessor is greater than in an ordinary case.  An “unreasonably dangerous” condition is one that cannot be encountered with reasonable safety, even if the danger is known and appreciated.  The possessor cannot escape liability merely by posting warning signs, but must remove or ameliorate the danger or take other reasonable steps to protect the invitee.

When determining whether a condition constitutes an unreasonably dangerous condition, consideration must be given to the type of people that might be affected by the actor’s conduct, including children and the aged or infirm.  Here are some tips:

  1. Focus on why this is a good rule.  Think of some corollaries.  Make the condition a public nuisance, dangerous to all.
  2. Focus on the fact that warnings or actual knowledge don’t matter.  Ask jurors whether they agree or disagree with this rule.  Some will disagree.  Before you move to strike them, see which other jurors agree with them.  Once you have identified all who disagree, move to strike the lot.  Remember: if you slaughter the lamb first, fewer will be willing to come out of the woods.  My personal record is striking three in one motion using this technique.
  3. Focus on why this type of condition was more dangerous for your particular plaintiff.  Age, eyesight, and lighting are all good grounds.  Again, the condition may be unreasonably dangerous only for some.
  4. Ask how the condition might have been remedied.  You might be surprised what you hear.  This lends insight not only into their belief as to the extent, or lack thereof, of expected remedial actions, but might also provide examples you could use later on in trial.

Above all else, remember this: find a way to explore issues applicable to your case, keeping in mind jurors’ natural biases.

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile