Stuff that can make the case go very, very bad.
Every case has them – facets of the case that don’t look good for your client. If everything in the evidence were lined up in your client’s favor, would you be going to trial?
Because every case has issues that concern the attorneys trying the case, we’re often asked, “How do I address (fill in the blank difficult issue) without poisoning the jury?”
Good question. And it’s not as troublesome as one might think. It’s just a little scary. Let’s start by looking at what is – and what is not – jury “poison.”
Juror Decision-Making Attitudes
First, it’s important to keep in mind that everyone who walks into the courtroom – not just jurors, but judge, witness, clerk, bailiff, opposing counsel and yes, you – arrives with two common possessions: life experiences and the attitudes that have developed from those life experiences. Most such attitudes are deeply ingrained and strongly held. You may have life experiences that lead you to believe that large corporations are the backbone of the American economy. The man sitting next you may have had experiences that have led him to believe that large corporations’ success is illusory, built on government largesse and upon the backbreaking labor of exploited workers. So if, in open court, in front of a room full of strangers, Mr. Opposition loudly proclaims his distaste for corporate America, is that going to change your opinion? Not likely. Opinion is not poison. Or, as a not-so-famous poet once said, “Fear not the poison in the other’s cup.”
So what is poison? Poison is specific – very specific. Here’s an example. Some years ago, a prominent developer was suing a bank for dumping allegedly contaminated concrete that its client had excavated from another site into a creek behind the developer’s property. The developer had to spend about $750,000 to clean up the property – a mobile home park – before it could be rezoned and sold off to a big-box company so a store could be built on the land. The developer was now suing the bank not only for reimbursement, but for punitive damages as well. In voir dire, before a panel of about 150, the attorney for the developer asked if anyone was familiar with the particular parcel of property. A woman – approximately Number 147, so you know there was virtually no way she was going to come into play in the actual jury pick – raised her hand and asked, “Is this where the (unnamed big-box store) is now?” The attorney confirmed that it was so. She told her story: “Well, I work with housing and relocation services for the county. He threw all these people (the mobile home residents) out at the same time. They had nowhere to go. It was a nightmare. We had people flooding into our office every day. It took us months to get everyone relocated.”
When Do You Want to Hear the Bad Stuff – Now or After the Trial?
So, we’ve addressed opinions – what about facts? Bad facts? A lot of attorneys are reluctant to bring up the bad stuff about their client (“Our company was investigated by the Feds about this same issue ten years ago.” “My client had back surgery two years before this crash.”) during voir dire, for fear of “poisoning” the panel. Conversely, there is a school of thought that says put it all out there and find out how people react. It’s been called “tribe-building” – no one is perfect, and we’re all in this together. Some others have simply called it “airing the dirty laundry.” The bottom line is, this stuff is going to come out during the trial, so why not get it out when you can find out directly how people react? Would you rather hear them talk about it before the trial (“Knowing that, I just couldn’t be fair to your side”), or after the trial, when the verdict is read?
The Purpose of Voir Dire
The chief purpose of voir dire is to uncover juror bias and to get jurors who are biased against your client to speak that bias. Poison isn’t part of that equation. Poison is when something that is not part of the case – some outside knowledge – comes into the voir dire process and is spoken out loud (“Oh yeah, I remember that the CEO of your company was brought up on child molestation charges a few years ago”). Poison is the stuff of mistrial. Bias is, as geneticist Mark Schultz says, the stuff of life. Invite it, welcome it, embrace it. Far better to know now than when you’re sitting in a bar, downing your fourth whiskey with your client and discussing “what went wrong.”
By: Robert Gerchen – Senior Consultant