OTLA Trial Lawyer Fall 2020

37 Trial Lawyer • Fall 2020 about that bias. Even when you take out something that you do not like, you might still have a little bias such that you should probably not sit on the case. The method I have used Mitnik’s method in a few jury trials. In one case in Washington County, I felt it really helped to get a fair jury that was more receptive than usual. We had a glancing front end collision and about $4,000 in chiropractic care, and the jury was kind on the verdict. In that case, we started with the personal injury case question. We used that and then bias about chiropractors. Then moved on to gaps in treatment as we had some gaps. One of the jurors had a bias of 10 about chiropractors. So, we started the room talking about that. “Who else agrees with juror X?” By the time most of them had spoken it was clear that three other people agreed with juror X. After that, we knew who to bump or challenge. While you may not want to use all Mitnik’s ideas, the usefulness of getting the bad jurors talking and seeing who agrees with them cannot be underesti- mated. Get the poison out, do not swal- low it. Now, you need someone to look on in the gallery or to sit there at counsel table and take notes with maybe pluses and minuses based on the responses you get from the jurors. If you do not have that, you are forced to remember every- thing that was said. I cannot do that. I never take notes during voir dire because if you write something down, the jurors are looking at that and more intent on what you are taking down than what the answer might be. Again, select your biggest problems in the case that you think will bite you and go for them. Find out how the jury feels and who will never put money in the verdict for your client. Start out with money for the medical bills. If they can- not see putting that into their verdict, then they will never put money for the pain and suffering or harms and losses into the verdict. So ask, “Do you have any discomfort with the idea of money for the medical bills in your verdict at the close of the case if we prove to you that the plaintiff incurred medical bills for this collision?” If the answer is “well, it depends” then that is all you need to know — boom— find a way to get that person off your jury panel. Same for any “it depends” answers to money for pain and suffering or for what has been taken and the loss to the plaintiff. Those people will not help the plaintiff at the end of the day. Be respectful and sincere when they give you the bad answer. “I really appre- ciate your honesty here Ms. Smith.” It is important we are all brutally honest here. Now, that’s Nick Rowley. He wrote a book “Trial by Human” where he talks about just really getting naked in front of a jury and getting the jurors to be brutally honest with you and you with them. I am less about Rowley and more about Mitnik. The one thing I have found is that no one can really give you a good way to quantify how to award money for pain and suffering. But you can get a jury that is decent or one that is predisposed to not help the plaintiff. Along those lines, a defense lawyer out of California wrote a book titled “Nuclear Verdicts.” Robert Tyson’s goal is to get defense lawyers to “take respon- sibility” be “reasonable” and ask the jury to use “common sense” all to the detri- ment of the plaintiff. And, he tells de- fense lawyers that this is how to stop the plaintiff and “runaway” verdicts. The key theme I took away from reading his 189- page book is that likeable defense lawyers who give the jury a number as though they are being reasonable from the start can get hurt a lot less than those who are not likeable and who do not give any number. He also talks a lot about the “reptile” and ways to use that against the plaintiff ’s attorney. Lastly, he likes to point out how well the plaintiff is doing after the crash and use that against the good guys, too. Pick your approach I do not use the reptile theory in voir dire . The idea is if you make the jury feel like the defendant did something danger- ous and that same dangerous thing could happen to the jurors, then they will vote for your client. For example, questions that make it a safety issue versus a stan- dard of care issue in med mal cases. Those are things the defense likes to file motions in limine on now. The idea of making safety rules so the jury goes along with them all the way to the jury room is demonstrated in Rick Freidman and Pat Malone’s “Rules of the Road” and “Polarizing the Jury.” Great books to read. Mitnik also suggests the defense case is about taking things out of context, so use your opening for more than just tell- ing the story. Put things in context for the jury. If your client didn’t treat, that doesn’t mean he or she is not hurt. It can mean your client hit a point where the treat- ment was no longer helping with the pain. When the plaintiff did not miss work, that does not mean the person was not hurt. It means he or she is a fighter and working to support his or her family, so worked through the pain. And lastly, Mitnik talks about ways to do your clos- ing and ways to pass the torch to good jurors to continue doing your work in the jury room. Getting them to think not about how much someone will get, but about how much someone has lost and the value of that loss. One last great question that Mitnik likes to ask jurors is “If you were me would you want you sitting on this jury?” Matthew Kehoe is a personal injury lawyer. He contributes to the OTLA Guardians of Civil Justice at the Sustaining Member level. The Law Offices of Matthew Kehoe, LLC are located at 330 NE Lincoln, Hillsboro, OR 97124. You can reach Kehoe at [email protected] or 503-648- 0766.