OTLA Trial Lawyer Fall 2020

9 Trial Lawyer • Fall 2020 they will face and then ask how they feel about those issues. Be candid. It is as important to state what you are not ask- ing for as it is to state what you are asking for. Ask for help Andersen: “It’s impossible for me to ask every possible question, so is there anything you would want me to ask if I knew you as well as you do?” Comment: I have found this question to be helpful in getting jurors to do some careful introspection. In one case, after a break, a juror volunteered new informa- tion that all previous questions had not dislodged. When one juror opens up, ask other jurors how they feel about that same issue. The gold standard is when jurors start talking directly to each other and you can just listen. Honor all jurors’ answers. Andersen: “Do any of you have any feelings, even a little, that lean either toward the group that’s perfectly okay with compensating for pain and suffer- ing, or to the group that says I would hesitate because money won’t bring back their health?” Mr. Lovejoy: “I have to admit, I’m a little skeptical of these kinds of claims.” Andersen: “Tell me more.” He ex- plained that a passenger had sued him. “Please tell me more.” When he be- came emotional and vulnerable, I reas- sured him, “You’re doing exactly what I’m asking you to do.” I then turned to the entire panel and asked: “Does anyone else feel the same as Mr. Lovejoy?” Mr. McElroy: “Well, I hate to kind of admit this, but I’m afraid I would prob- ably show a little bias in the plaintiff ’s favor. I live way out in the Applegate. I dodge traffic every single day to and from work. Numerous times people are cross- ing the roads and driving unsafely. It’s a safety issue for me. And I think that might play into a little of my decision. I would hope it wouldn’t, but I have to admit it probably would.” Andersen: “You’re strong on safety is what I’m hearing?” Mr. McElroy: “Yes. And if there was some — cross the line, unsafe speed for certain conditions, I would be afraid I’d kind of lean against that person. That’s it in a nutshell.” Comment: Consider any answer a gift. Once you have two jurors expressing opposite views, encourage an open dis- cussion. If you are lucky, the jurors soon will begin talking directly to each other, revealing more information than you could ever have hoped for. The key is to ask a question at the heart of your case and then listen, listen, listen. Andersen: “Occasionally, we’ll have somebody on the jury say, ‘I don’t care what the evidence is, I wouldn’t compen- sate someone for suffering and pain be- cause it won’t bring health back.’ And there are others. I had a juror one time who said, ‘Mr. Andersen, you be sure and take care of that young man you’re rep- See Balance and Understanding p 10