profit driven and in competition with each other, and finally to ask, if the doctor gave an opinion in favor of the injured person, would that put the company at a disadvantage relative to their competitors. Framing the industry this way helps jurors understand the incentives at play. Similarly, I have observed others begin their cross examination by having the defense doctor confirm the injured plaintiff is not their patient and, therefore, the Hippocratic Oath, and its obligation to “do no harm,” does not apply. Trial Briefing and Jury Selection A couple years ago, recognizing that attorney Stephen Voorhees had achieved several excellent recent trial results, Ben Cox obtained recordings of the trial record in a few of his cases and shared them. Reviewing a couple of these cases provided helpful insights regarding pre-trial briefing and jury selection. In his trial brief, Voorhees instructs the court that per annum damages arguments are allowed, citing DeMaris v. Whittier, 280 Or 25 (1977), presumably in anticipation of a defense motion to exclude such arguments. The trial brief also reminds the court “a juror who has expressed bias should not be considered rehabilitated simply by giving affirmative response to the question, ‘but can you set those feelings aside, listen to the evidence, and follow the law instructed by the Court?’”, and a juror should be stricken for cause “if a juror states that one side will be starting out ahead of the other or that one side will be starting out with a strike against her in spite of the jurors best efforts to set those feelings aside and follow the law.” During jury selection, Voorhees asks each potential juror to rate their feelings against personal injury cases from 1 to 10, then asks that the highest rated jurors be struck for cause. Having briefed the issue immediately before trial allows him to remind the court of the authority for his position and to have jurors indicating a “strike against” plaintiff to be removed for cause. Another effective technique he uses during jury selection is when describing what he calls “the elephant in the room:” whether the defendant has insurance that will cover any verdict against them or if they will have to pay out of pocket. Some practitioners are hesitant to even mention the word “insurance,” out of fear that it will draw an objection, but doing so in this context is fair game and addresses early in the case a common concern of potential jurors. Conclusion Among the many benefits of OTLA membership is the opportunity to improve our advocacy techniques by watching and learning from others. This happens through email discussions, watching our colleagues in trial, sharing war stories at the convention and reading the pages of this issue. I hope some of the lessons and techniques outlined in this article are useful and help contribute to our ongoing pursuit of justice for our clients. “Among the many benefits of OTLA membership is the opportunity to improve our advocacy techniques by watching and learning from others.” 41 Trial Lawyer | Fall 2024
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