In my last post I discussed my first tip for plaintiff attorneys in voir dire: letting an associate or paralegal take notes for you so that you can focus 100 percent of your effort and energy during jury selection on building rapport with the jury pool. I believe, based on my experience, that developing rapport with potential jurors so early on in the trial process has the potential to positively influence the remainder lays a good foundation for the remainder of your trial.
My next tip concerns what you convey to the jury pool during voir dire, as opposed to how interact with and speak to potential jurors. I have observed many other attorneys during jury selection who work wonders with the jury and who engage them on a human, conversational level. However, even these effective attorneys fail to do one important thing: they don’t talk to potential jurors about the issues in the case. Many of these attorneys are shocked when the defense verdict comes in, but I am not: they didn’t talk about the issues of the case in voir dire!
You must always talk about the issues in the case. If liability is disputed, then talk about it. If there is a claim for medical expenses, lost wages, or impaired earning capacity, then you should talk about each of these things as well. If there is a claim for non-economic or punitive damages, talk about that as well. Why do I believe that you should talk about such things? The answer is simple: for many people, certain damages are easy to award, while others are not.
Most Jurors Understand Medical Expenses and Lost Wages
Medical expenses are often the easiest for the jury to award, so I start there. I then move on to lost wages. Few jurors have trouble awarding these types of damages, so I discuss them first before moving on to more difficult topics. Usually, I introduce the concept of impaired earning capacity next. This is a trickier concept than lost wages for many potential jurors to wrap their heads around because it concerns potential employment lost rather than actual hours missed at a job.
Explaining Diminished Earning Capacity
I analogize the idea of impaired earning capacity with a damaged car. I will say something along the lines of “Ms. Juror, please assume that a drunk backed up into your car while it was parked outside today. You take it to a body shop, where they work on it but cannot repair one wobbly wheel. Now assume that, due to a sudden turn of events, you need to sell your car next week in order to buy groceries. However, you find that your car is no longer worth what it was before the accident due to its wobble wheel. Do you think the person who caused your collision should pay not only to get your car fixed but also the difference between what your car was worth before the collision versus after?” I inevitably get an affirmative answer.
I follow this analogy up by asking whether the same should hold true for the earning capacity of someone who has been injured in an accident. If the jury pool seems confused, then I clarify by asking whether they feel that reporting a prior injury or the resulting restrictions would make it more difficult to obtain employment. I use that conversation as a springboard with other potential jurors, individually.
I move on to non-economic damages last. I have found that there is a continuum on which most people fall. On one end, there are people who would award all damages proven, no matter the type or amount. Next on the spectrum are people who would only award damages up to a certain amount, usually capping non-economic damages. Next, there are those who would only award economic damages because they do not believe in non-economic damages at all. Finally, there are those who wouldn’t award a dime, no matter the facts. They stubbornly believe that “stuff happens”.
I always ask potential jurors where they think that they fall along this continuum. I also ask what types of restrictions or injuries they find the most important, and then I talk specifically about those which overlap with the case at hand. While discussing damages, I ask whether potential jurors would have a problem awarding the amount prayed for relative to each type of damage sought. Just as you must talk about the issues in a case, you must also talk about money during voir dire. If you wait until closing to talk about money, then you run the risk that the amount prayed for will offend one or more jurors who you could have bounced at the beginning of the trial. Cover you bases by introducing all of the issues of the case up front as well as the damages sought.