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From 100 days through Opening Statement: Course 2: Jury Selection

From 100 days through Opening Statement: Course 2: Jury Selection. Topics: Purpose Before Jury Selection Begins Jury Selection (Voir Dire). Purpose. Changes over past 3 decades Indoctrinate (control) Persuade (control) Get commitment (control)

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From 100 days through Opening Statement: Course 2: Jury Selection

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  1. From 100 days through Opening Statement:Course 2: Jury Selection Topics: Purpose Before Jury Selection Begins Jury Selection (Voir Dire) Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  2. Purpose Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  3. Changes over past 3 decades • Indoctrinate (control) • Persuade (control) • Get commitment (control) • Establish connection “likability” (control) • Learn/arm(listen/empower) Purpose Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  4. Before Jury Selection Begins Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  5. County Jury Pool profiles • Court Procedure & Rules • Judge Voir Dire • Use of Questionnaires • Mini-Opening? • Time limits • Challenges • Alternates • Opposing Counsel Pre-Voir Dire Work Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  6. Use of jury questionnaires • Time limits • Sensitive subject matter • Pocket brief cause challenges • Batson/Wheeler Issues Legal Briefs/Motions Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  7. Jury Selection Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  8. Introduce client and yourself • Ask a question that requires a group response • Explain: Only time we can have a conversation • Want to discover: • What you have learned about life through your experiences; • How those experiences affect the way you view things; • How those experiences may affect the way you evaluate case facts. Create an opening for dialogue Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  9. Way Things Work: • Ask questions to you as group – raise hand • Follow up with individual questions based on what comes up when we talk • May not ask questions of everyone-not offended? • Want to know what you think; how you feel on these subjects. • Will protect your privacy-Let us know if need to discuss in private • Be respectful • Know their names – correct pronunciation • Don’t interrupt (with some exceptions) Explain What You Are Going to Do Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  10. Validate & Empower: • No right or wrong answers; only your answers • Justify & Excuse: • Sometimes life experiences affect us in such way, certain cases not for you • What The Law Looks For: • People who can listen, evaluate, decide based on evidence presented here not on outside things Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  11. It’s about them – It’s not about you. • Get the jury talking. • Ask open ended questions & follow up • Tell me more, why is that so…. • Don’t react to bad answers • “Many people feel that way, who else does...” Facilitate Disclosure Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  12. Look at the juror when they are speaking • Pay attention to answers & body language • No writing; no shuffling papers • Have someone else keep notes Listen - Watch - Record Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  13. Ask about landmine issues • Determine what percentage of proof they would require • Key: If you can tie a case critical issue to the burden of proof, you can set up a successful cause challenge. • E.g. How many do you feel strongly that lawsuits against nonprofits who provide services to the disabled creates the risk of forcing these companies out of business Ask About Case-Critical Issues Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  14. The concept of rules • How do they feel about rules? (Have rules @ work; for kids; at home?) • Are they important to you? • Why are they important? • Do you expect others to follow them? • What happens if they are not followed? (i.e. – consequences/accountability) • How they feel about the rules/norms for behavior in the case Establish Agreement with “Rules of the Road” Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  15. Jobs/work history- • managers, supervisors, military officer, teacher • Self confident, Articulate • Able to use humor, including about themselves • No narcissists: • Big ego, grandiose sense of self importance, etc • Prior jury service Identify Leaders Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  16. Defendant’s status • Plaintiff lives out of state • Plaintiff out of work since DOA even though medically released to return to work • Secondary collision after accident which is subject of litigation • Felony conviction Examples of Case-specific Issues To Cover in Voir Dire Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  17. Doesn’t believe in civil justice system • Tort reformers • Frivolous lawsuits • Caps/limits • Money can’t fix • No general damages • Status matters-different standard for nonprofits, doctors, etc. • Closer potential juror’s personal experience to facts of case = more dangerous Red Flags Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  18. Unemployed people or people who are struggling financially w/o assistance • People who do or have taken care of people with serious disabilities • People who are not satisfied with their life • People who think economy is getting worse • Bitter, sour or angry people • People who don’t think rules are important. • Jurors that use words like “must/always/never/should/everyone” • Jurors that “need to know more” Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  19. When a cause challenge is proper: If a juror cannot follow or is even substantially impaired from following the law, that is a cause challenge. Wainright v. Witt 496 U.S. 412 (1985) • Two types of bias: Implied and Actual Law Supporting For-cause Removal Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  20. The law presumes a prospective juror is biased and therefore disqualified if any of the following conditions exist: • The individual is related by blood or marriage to party or witness; • The individual has another relationship to a party or witness (i.e. fiduciary, domestic, or business); • The individual was a prior juror or witness in litigation involving a party; • The individual has an interest in the litigation; • The individual has an unqualified opinion as to merits based on knowledge of material facts; or • The individual has enmity or bias toward a party. (Code Civ. Proc., § 229.) Implied Bias Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  21. Prospective jurors are disqualified from a trial if they cannot act with entire impartiality. (Code Civ. Proc., § 225, subd. (b)(1)(C).) In other words, prospective jurors are properly excluded for cause if they require a party to go beyond the party’s burden of proof, e.g. requiring more than a preponderance of evidence to render a plaintiff’s verdict. (Liebman v. Curtis (1955) 138 Cal.App.2d 222, 226.) Actual Bias Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  22. Stock ownership in a party to the action is the type of business relationship that implies bias. • Prejudging the merits of a case based on knowledge of individuals or entities involved in the matter constitutes an “unqualified opinion” for which a prospective juror should be excused. • Enmity and bias established if prospective jurors confirm they will not follow jury instructions if the law went against their conscience. Examples of Actual Bias Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  23. Once a prospective juror has admitted bias, that prospective juror cannot be rehabilitated simply by stating, “I can be fair,” or “I will follow the law.” Prospective jurors are properly excluded for cause where prospective jurors admit bias but then promise to be impartial or to decide the case according to the evidence presented. (See Lombardi v. California Street Ry. Co. (1899) 124 Cal. 311, 314.) No Rehabilitation Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

  24. First on the leaders and then on everyone else: confirm & reconfirm bias to resist rehabilitation. Don’t use “can’t be fair”; instead use “not neutral.” • How did you reach this feeling • What are the things in your life led you to this conclusion • Have had feeling for a long time • Why is this important to you • Sounds like these are strong feelings • Fair to say it is the way you look at the issue; a philosophical position • Have voiced this to others in past; would voice it to jurors in jury room if asked • Couldn’t set feeling aside even if another juror told you, you shouldn’t think that way, or if attorneys said have to set aside • Is it true that there is nothing anyone can say to make you feel differently • Agree not neutral • Agree be a better juror different kind of case – agree not case for you Scripting the For-Cause Challenge Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

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