OTLA Trial Lawyer Fall 2020

36 Trial Lawyer • Fall 2020 By Matthew Kehoe OTLA Guardian T his case is a personal injury case. Who here has strong feelings about personal injury cases? That’s the first question out of the box when I do voir dire . Why? Let’s talk a bit about Keith Mitnik who wrote a great book entitled “Don’t Eat the Bruises.” Mitnik has tried more cases than Starbucks has coffee shops. He’s good. He figured out that getting rid of the bad jurors was more important than trying to voir dire to keep the good jurors. There were so few good jurors. Now, his method is not for every- one. And, quite frankly, I have hijacked just a portion of it. If you went all in on what Mitnik does, you would never be able to seat a jury and you would prob- ably be there doing voir dire for a couple Matthew Kehoe of days. How does he do it? First, get the jury talking a little bit. Then, start talking about bias. Explain it is not a good or bad thing. It is how we are wired. Mitnik likes the example of bias being where he is asked to be the judge of a pie contest and he likes apple pies. If it comes down to a pumpkin and apple pie, if you were in the contest, you would want to know he has a bias in favor of apple pies. That is only fair, right? Well, explain to the jury that bias is not about being right or wrong. It is just bias. We all have some bias. And when we talk about bias we use a scale. 1 is a little and 10 is a lot. No bias is a zero. So, if you have any at all, you are in the 1-10 range. Mitnik goes on to ask jurors ques- tions. He frontloads his biggest fears or problems to see who responds and how. For instance, if it is a personal injury case he starts out asking them if they have a problem sitting on that type of case. Any problem at all? Now, the bias scale is 1-10. Again, reiterating that 1 being just a tiny bit of bias and a 10 being a huge amount of bias. Now, if they have any bias at all and that bias means that “we would be starting out with a strike against us” then the judge should excuse that juror for cause. Probably not in Oregon, but it’s worth a try. The next question might be, “This case involves a crash where there is low visible property damage, how do you feel about a case like that?” Again, get it out on the table. If you have a bad juror or jurors, then let them tell you so you can set them up to be kicked for cause. And, go on to ask other jurors by a show of hands if they feel the same as juror X. Save the bullets for the ones you know really need to go and who will not admit they are biased. “We are going to ask you to return a verdict with a lot of money. Do you have any bias about money for pain and suf- fering in your verdict in a personal in- jury case?” Get them talking. “Where are you juror X if 1 is the least and 10 the most, on the issue of money for injuries — where are you on the bias scale?” If in response to a question like this, a potential juror says he or she would want to “wait” to hear all the evidence, then you know that is a bad sign. You do not want that juror on your panel. If the juror has a bias against putting money into the verdict for the medical bills now, just a little, then later it might be a lot. So, Mitnik uses the lemon in the water glass analogy to talk about that bias. Some people like a little lemon in the water glass at a restaurant. He does not like it. In fact, even when you take it out, he can taste just a bit of the lemon that was in there and he does not like it. So, for those who say, I would need to hear the evidence first, that is where you talk Voir Dire The Keith Mitnik Way Don’t Eat The Bruises