Leighton teaches jury selection in negligent security cases

John Leighton spoke at the American Association for Justice Winter Convention in February 2016. He taught lawyers about jury selection in inadequate security and violent crime cases.  Mr. Leighton, a national expert on crime victim representation, has developed some techniques for picking juries and ferreting out biases in potential jurors.  The paper presented in conjunction with his speech is below:

SELECTING JURIES IN INADEQUATE SECURITY CASES

AAJ Winter Convention

Boca Raton, Florida

February 2016

John Elliott Leighton

Leighton Law, P.A.

Miami and Orlando, Florida

(888) 395-0001

www.LeightonLaw.com

Introduction

Selecting juries in inadequate security cases can be particularly daunting.  Besides the usual issues facing plaintiffs when they come before a panel with the burden of proof (and other extra-judicial biases that have been provided by the insurance and business communities), security cases pose difficult policy issues.

Jury selection is not just about choosing the right jurors, the goal is to identify and exclude the problem jurors.  The process should best be called “Jury De-selection.”  Resist the traditional fears that if a juror spews their prejudice openly it will taint the rest of the panel. Jurors are not going to change their core beliefs simply because another juror voices a strongly held perception.  Your focus should be to look for these land mines, and contrary to conventional wisdom, trying to get them to go off by showing themselves.   In fact by not identifying these problem jurors, you certainly run the risk of the mines going off during jury deliberation when it’s too late.

Often when attending these seminars we hear the words, “this is the most important part of your case.”  Although all parts of the trial are important, and even if your presentations were exceptional, if you choose a jury unwisely you have substantially increased your chances of losing.  Then after a defense verdict you sit there asking yourself what happened.  “They were smiling at me the entire time, I thought they liked me.”  We have to give our egos a rest, a trial is not a popularity contest amongst the lawyers.

Jury De-Selection

Until recently trial lawyers often ignored the science of jury de-selection.  Maybe that is why many of us spend countless hours preparing the case but spend little or no time preparing for jury de-selection.   Maybe it’s because we believed that our charisma and talent is enough to carry the case to victory.  That strategy may have worked in the past, but now jurors are better educated, and more aware of local and world events.  The arrival of the internet, 24 hour a-day news, and more realistic TV programming has creating a more enlighten juror.

You are almost always seeking recovery from someone other than the party who committed the violent act.  By its very nature such a case is immediately greeted with skepticism.  Sometimes the uninitiated will smirk or cackle at the idea that a business is responsible for the violent criminal acts committed by another.

Problematic Jurors

There are a number of potential jurors that may be problematic for such cases.  One such juror is the prior crime victim.  The prior crime victim may feel that they did not recover for such losses so therefore why should someone else?  Similarly, they may feel that the injuries were not that severe, that the victim was “lucky” to be alive, etc.  In one case involving a shooting, when asked “By a show of hands, how many of you have been shot?”  The question was intended to elicit shock – that such would be so far from the common experience of the jurors and therefore would be seen as horrendous.  Who would have thought that five hands would go up out of 18?

The unfortunate reality today is that many people have been victimized by violent crime.  These numbers go up in urban environments.   This must be considered when picking a jury in these cases.

So too must the “just world” juror – the person who thinks that people get what they deserve. In a strange form of cognitive dissonance, this type of jurors distances himself by creating a reality that this type of crime could only likely occur if the plaintiff did something or placed himself/herself in a position to allow it to occur.  So the woman who is raped in the parking garage at night somehow brought it about by walking alone in a dark area.  The man who is shot in the parking lot of an apartment building was probably involved in a drug deal gone bad.   Jurors will always come up with facts to suit whatever theory they have. If you do not fill in those blanks in advance, you can assume that they will assume them in a way that is likely unfavorable to your client.

The experts in this field tell us that jurors decide cases based on their personal experiences and belief.  So obviously it follows that the broader the knowledge and experience of jurors the more attuned we must become to identifying how their personal beliefs will impact on our case.  There are several important questions to consider.  How do you determine what are the jurors’ personal experiences and beliefs?  Based on those personal experiences/beliefs which jurors should you exclude?

Predicting behavior

The best way to solve this puzzle is by analyzing what a representative jury panel will do with the facts of your case.  If you have a significant case and the first time you are trying this out is during voir dire in your case, there are some that suggest that you may have just committed malpractice.

Mock trials/focus groups under the direction of experienced jury consultants are really the best way to solve the puzzle.   Your goal in the exercise is not to try to win the case but to 1) identify the jurors who have problems with your case and, 2) to find out why they have a problem with your case.   The “Who” usually becomes obvious when they begin to discuss the case.  The more important factor is the “Why”, which forms the basis for their decision process or what we have described as their Personal Experiences/Beliefs.  This is where you have to listen very carefully.  When you hear them say things like:

I would never….

I don’t understand why the plaintiff would ….

I was taught that……

It’s my experience that…

Often the concept of defensive attribution becomes prominent in cases involving criminal acts.  The juror, in an attempt to psychologically separate him or herself from the incident, creates an illusion that they would never have done what the plaintiff did (e.g., walk into a garage at night, use an elevator alone, etc.) in order to feel comfortable in their life. In this way the potential juror feels that they can go about their daily activities without constant fear that they too will be victimized.

When this happens, the jurors may be telling you that their personal experiences are running contrary to your theory of the case.  At some point during the process of the mock trial/focus group you must determine what specific personal experiences/beliefs of the jurors caused them to reject your case.

Here are a few examples of cases in which we have utilized mock trial/focus groups:

Case Facts:  

Foreign Tourist rented car from major rent a car company and got lost in high crime area where he was robbed and wife was killed. Theory of liability that rent a car company should have warned them of high crime areas.

Result of Focus Group:    

Problem Jurors:  People who pre-plan vacations/trips, spend time getting maps and plotting routes, going to AAA

Key Voir Dire Qs:

Ask about how they go about planning vacations/ trips; steps they took to plan itinerary etc.

Case Facts:

In a case where a young girl was raped in the Department Store bathroom when the mother let her go unattended and continued shopping.

Results of Focus Group:

Problem jurors: Even though all the jurors were completely sympathetic to little girl, the Parents of small children on the panel could not get passed holding the mother responsible.

Key Voir Dire Qs:  

Identify jurors with small children or people who take care of small children.

The Millennial  Effect

Today’s jurors are rapidly being replaced by Millennials – Generation X and Y jurors.  Now that they represent over 50% of the adult population, they are beginning to populate the juries and will soon dominate our triers of fact. How they think, analyze and approach jury trials is vastly different than the generations they are replacing.  As such, jury selection must be re-tooled to account for them.

Generation X has gotten a bad rap. Originally derided as “slackers” who are disrespectful and non-empathetic.  These were the children of a generation with the highest divorce rate and were initially the known as “latchkey” kids.  Left to their own devices and less likely to succeed.

The Millennials (Gen Y) are the most important to focus on right now because they are the newest and least understood.  They are the country’s most diverse generation; only 57% identify as non-Hispanic white. Compared to prior generations, the Millennials are significantly less connected with traditional institutions, such as political parties, religious institutions and marriage (only 27%). They generally have more progressive and inclusive social views. Despite being less financially secure than the previous two generations at the same age, they remain relentlessly optimistic, with 49 percent saying the country’s best years are ahead and 8 in 10 reporting that they currently have, or expect to have, enough money to lead the lives they want.

Gen Y grew up in an environment of worldwide disorder: school shootings, 9/11, governmental changes throughout the world, global climate change, enormous natural disasters, BP Oil spill, the great recession.  These are the events that have shaped and continue to influence the Millennials. Because their world has involved incidents like Columbine, Sandy Hook, Virginia Tech, 911 and the like, they tend to be more security-conscious than prior generations.  They believe there should be security plans in place and security should be considered by businesses.

What is important to note is that Millennials have great distrust of others. In studies only a very small percentage feel that “most people can be trusted,” compared to a third of Gen Xers and 40 percent of Baby Boomers. Many studies suggest that both Gen X and Y have strong anti-corporation biases and a generalized sense that if someone is hurt, they should be compensated.  Interestingly, as compared to Gen X, Millennials are lest distrustful of the government and are more optimistic about what government can do.  While this may be a function of youth – and the likely increasing skepticism that may take place as they mature – it is a factor to keep in mind.

This generation is poised to be the most educated group yet the most under-employed (16.2% unemployment for 18 to 29 year olds).  They are graduating into job markets with fewer jobs and often take jobs for which they would traditionally be over qualified (e.g., the barista with a master’s degree).  They are debt-ridden, with a substantial number carrying large student loan debt. Some feel that Gen Y has a sense of entitlement; that theory is not yet proven but certainly many in this group have displayed those traits.

Perhaps the defining element of a Millennial is that they are constantly “plugged in” and connected.  This generation grew up with technology.  They have never known a time when there were no cell phones or internet.  Their understanding is derived from being able to “Google” anything they need to know.  They are used to instantaneous responses.

Another element of the Millennials is that they tend to defer to policies and procedures (“rules of the road” if you will).  If you can get them to realize that the other party has violated policies, they are much more likely to find liability.  In this vein, they defer to documentation.  If something is not documented, they assume it did not occur.  This may play into the fact that this is the most documented generation ever, between social media, computers, video, etc.

Approaching jury selection with Millennials:

Understand that they are keenly tuned in to networks like Twitter.  Twitter and similar social networks are the backbone of the Gen Y existence and connectivity.   They are used to espousing their opinions, even if limited to the characters allowed on Twitter. This is a generation with opinions which they believe should be freely shared.  And often.

Because they are by nature distrustful, you need to build trust.  That begins with any opening remarks and throughout jury selection.   Credibility is key; exploit perceived credibility gaps in the opposition without succumbing to overreaching arguments or anything that reeks of being manipulative.  They want concrete facts and a basis for opinions from experts.  They will defer to the superior expertise and credentials of an expert but only if it is supported by credible reasoning and facts.

The social networked and online existence brings about certain characteristics in this group. Due to the overload of data available at warp speed which they have lived in their whole life, they have short attention spans.  That is not aided by today’s television and online entertainment.  Streaming videos on demand without commercials, the ability to pause anything to then multitask and come back to it later, make this a generation that needs constant information to grab their attention.  Twitter’s 140 character limit means that they are accustomed to receiving succinct information.  “Snapchat” allows users to view a picture for 10 seconds before it disappears.  It’s no wonder that this generation needs rapid fire information and presentation throughout trial.  The presentation needs to be simple but no condescending. This is particularly true in jury selection when you are trying to get their attention at the outset.

Their use of and involvement with technology means that they are not only comfortable with it in the courtroom, but suspicious of a lack of it.  Use technology and recognize that you must be adept at using it or its use will backfire.

Virtually every juror uses social media.  Many are constantly online.  For the Gen Y’s, they are more comfortable texting than conversing.   For a generation used to getting any answer online at any time, sitting in a courtroom and being prohibited from internet use is akin to being imprisoned.

You can be sure that every Millennial will consider “googling” as a daily event. If there is something they don’t know or want to learn, they will google it or go to YouTube.  This group is least likely to heed the command not to perform any independent research, partly because it comes as second nature and partly because they may not truly consider it research.  It is in their DNA.

Courts and Judges have wrestled with the issue of how to prevent jurors from conducting online research.  Forget the day where the juror went to the scene of the accident; today’s jurors will get on Google Earth or Google Maps and look at the scene from multiple angles, will check the backgrounds of the parties, witnesses, lawyers and experts, and check out the web sites and social media of those entities.  In sum, whatever there is out there on you, your client, the opposing party and the case will be within reach of these jurors.  They use electronic communications for virtually everything and it is unlikely that they will stop during trial.

JUROR USE OF ELECTRONIC MEDIA:

Many states have enacted rules on juror use of electronic communications. One example is Iowa’s Jury Instruction:

100.23 Use of Electronic Devices.

You may not communicate about this case before reaching your verdict. This includes cell phones, and electronic media such as text messages, Facebook, MySpace, LinkedIn, YouTube, Twitter, email, etc.

Do not do any research or make any investigation about this case on your own. Do not visit or view any place discussed in this case, and do not use Internet maps or Google Earth or any other program or device to search for or to view any place discussed in the testimony. Also, do not research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or the judge. This includes using the Internet to research events or people referenced in the trial. This case will be tried on evidence presented in the courtroom. If you conduct independent research, you will be relying on matters not presented in court. The parties have a right to have this case decided on the evidence they know about and that has been introduced here in court. If you do some research or investigation or experiment that we do not know about, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process, including the oath to tell the truth and by cross-examination. All of the parties are entitled to a fair trial, rendered by an impartial jury, and you must conduct yourself so as to maintain the integrity of the trial process. If you decide a case based on information not presented in court, you will have denied the parties a fair trial in accordance with the rules of this state and you will have done an injustice. It is very important that you abide by these rules. [Failure to follow these instructions may result in the case having to be retried and could result in you being held in contempt and punished.]

The flip side to the electronic communication issue: You can take advantage of the vast amount of information that will be online about and by each prospective juror.  Google, Bing and Yahoo are just starting points.  Twitter, Facebook, LinkedIn, Intstagram and the many other social networks (some of which will show up in searches) are chock full of more information on these jurors than a full old fashioned voir dire would provide.  That presumes your jurisdiction even gives you voir dire.

Conclusion

Voir dire continues to be one of the most significant parts of a trial.  This is particularly so in trying premises security cases.  There is nothing insurmountable about finding a fair jury. Though jury selection has been classified as either art, science, or a guessing game,² it is in fact a function of all three. By following some of  the suggestions set forth above, in combination with your own unique style and flare, as well as through the use of a highly skilled trial consultant, almost any jury can be turned around if properly approached on the issues.   Not knowing the applicable law and procedure on jury selection can compromise a trial or leave you open to errors that can serve as a basis for appeal. Trial lawyers therefore should make every effort to possess a firm understanding of the law governing voir dire. By doing so, the trial lawyer is better prepared to handle the changing dynamics of jury selection and improve his chances of a favorable verdict.

 

² Pavalon, “Jury Selection Theories, Art? Science? Guessing Game?”, Trial, June 1987, p. 26.