OTLA Trial Lawyer Fall 2020

39 Trial Lawyer • Fall 2020 +frivolous law suits, but aren’t you really saying you have already made up your mind here and think my client doesn’t deserve what he is asking for?” Or “The judge just asked you if you could be fair and impartial after you already told me you would have a tough time here be- cause you were sued one time and you got screwed. Isn’t it true you won’t be fair here, and this is not a good trial for you to listen to?” 5. Don’t get clients involved It is their case, true, but you are the one with experience. You are the one who knows what biases count and don’t count. This also sets the tone for the rest of the trial where you can control “that client” who is constantly bending your ear or writing notes with additional questions. I learned this the hard way in Jackson County when I took a blown-up mo- torhome case to trial. My client was smart, too smart really, and wanted to be part of every aspect of the case, from voir dire to closing argument. Picture this in your mind’s eye… my client constantly pushed his pad of paper over to me with his handwritten questions for witnesses or with bold lettered exclamations like “THAT WAS A COMPLETE LIE.” I became completely frazzled to the point where I started to rely on his questions more than my prepared outline. If I had only set the tone from the beginning then perhaps I would have kept my client in check. 6. Ask where jurors get their news This will tell you more about confir- mation bias than anything else. Confir- mation bias is our tendency to seek information that confirms our prior beliefs, and to ignore evidence to the contrary. We are drawn to things that confirm our beliefs. Liberals read liberal news, right-wingers consume right-wing media. When we see evidence that con- firms our beliefs, we accept it with ease. But when we see contrary evidence, we look for ways to dismiss it. If this is the first time you have heard of it please do your studying. The faster you learn about this very real phenomenon, the better you will identify the biases of potential jurors and perhaps even understand your own biases. The clearest examples of what I am talking about of course are questions about Fox News versus CNN/MSNBC. There are no perfect jurors, but we know where the most conservative people gravitate. Tort reformers flock together. 7. Don’t be scared of juror professions I have excused far too many nurses and medical assistants just because I was worried they would pour over the medi- cal records during deliberations and tear apart my case. The defense attorney will do that well enough. I now believe a juror with medical experience could actu- ally help if you have the right kind of case. All I am saying is you shouldn’t automatically remove those in the medical field. 8. Don’t object There was a judge in the county where I do most of my cases who would glare at me when he felt like I should object to the defense. Even during voir dire . I couldn’t stand it. I don’t think most things are objectionable in voir dire . I could be wrong, but I don’t think it is the right way to start off a case. 9. What to focus on When reading those dang juror ques- tionnaires given to you just minutes before trial, where should you put your focus? My simple answer is to not focus on them at all. I spend far too much time reading those things instead of looking and trying to analyze my jurors. I need to find the alphas because they will be the jurors who cause other jurors to abandon their positions during delibera- tion. I need to find the disinterested ones because they will be the followers who assuredly will be nine out of the 12 you See Ten Tips p 40