OTLA Trial Lawyer Fall 2020

10 Trial Lawyer • Fall 2020 resenting because he’s got to live with this all his life.’ So do any of you have feelings one way or the other on that issue? Mr. Lovejoy, you’re the one that kind of got this whole thing started.” Lovejoy: “Yes, sir.” (I thought he said this with some pride.) Andersen (addressing Lovejoy): “And I’m appreciative of that, because, once in a while, we have a jury and no one says anything and we just don’t know. I’m always grateful when somebody says what they feel and then we can have a discus- sion. Having said that, is there anything else you need to say particularly about the issue of compensation for suffering and pain?” Comment: If you don’t allow jurors to express themselves in jury selection (when you can do something about it), those who remain will do so in jury de- liberations (when you can’t do anything about it). I believe every juror’s answer is precious. They bring a lot of life’s experi- ence into the courtroom and they try very hard to do the right thing by both sides. Andersen (still addressing Lovejoy) : “Thanks you for your candor. You can understand I have a duty to my client to challenge you as a juror. I hope you won’t be offended, but I’m going to ask the judge to excuse you from this case, based upon your answers. The judge will make the decision.” Judge: “I’ve listened very carefully to Mr. Lovejoy’s answers to the questions and his recognition of the thought pro- cesses we all have. And I have heard him say he can be fair and impartial in this case and he’s going to try his best. I think that’s what we all do as jurors. I deny the challenge to Mr. Lovejoy. Andersen (to Lovejoy): “You under- stand I have to do that?” Lovejoy: “I do.” Andersen: “And you’re not going to hold it against me?” Judge: “This is a legal issue here. It is not a personal thing at all.” Comment: I was entitled to have Lovejoy excused for cause. (His “reha- bilitation” was forced by the judge’s leading questions, which compelled Lovejoy finally to say he could be “fair” after all). Such judicial choreography is unacceptable. A judge abuses his awe- some courtroom power when he uses leading questions to force a juror to deny what he has previously admitted. Every attorney—and judge—ought to read Lane Cty. v. Walker , 30 Or App 715, 722 (1977). The decision is de- voted entirely to a judge’s error in at- tempting to rehabilitate a juror who had already disqualified himself: The purpose of rehabilitative questioning is investigation, not persuasion. It is to determine whether the juror is able and likely to set aside his views, not to per- suade him to do so or to elicit pro forma answers to leading questions. Count the Summers Continued from p 9