Let Lawyers Do Their Jobs in Selecting Juries!

 

Some people say that the composition of the jury is the most important part of a jury trial. Without dissent, lawyers will agree that jury selection is very important in any high stakes trial.

So, why are some judges so insistent on drastically limiting jury selection?

Clearly, there must be efficiency in all aspects of a jury trial, but when judges try to rush lawyers through the voir dire process, it does nothing but lead to a lack of confidence in the jury system. Litigants need to feel they have been given an adequate opportunity to identify those prospective jurors who might be biased against them. And, in spite of what many judges might think, merely having a juror say he/she can be fair does not mean that juror can be fair. It is only through a vigorous voir dire process that parties in a case can be assured that the people deciding the fates of the parties are fair-minded, disinterested and competent to make such decisions.

The case of York v. El-Ganzouri, 353 Ill.App.3d 1, 817 N.E.2d 1179, 288 Ill.Dec. 529 (1st Dist. 2004) is instructive on the attitudes of some trial judges regarding voir dire. In this complex medical malpractice case in which the plaintiff’s attorney was asking for a multi-million dollar verdict, the trial judge allowed each side twenty minutes to pick fourteen jurors. For the two defendants, that meant they each had just TEN MINUTES to ask questions of the venire! On appeal, the appellate court approved of this strict time limitation.

In my opinion, it is crazy to believe that a litigant in a case can be expected to perceive he/she has been given a full and fair opportunity to pick a jury (and two alternate jurors) in just ten minutes. Apparently, I’m not alone in that feeling. In 2006, the Illinois State Bar Association conducted a two day conference dedicated to the subject of jury issues. Attendees at the conference included equal percentages of judges, plaintiff lawyers and defendant lawyers.  The York case was discussed and the attendees were then asked whether they agreed (strongly agreed or agreed), disagreed (strongly disagreed or disagreed) or held no opinion on the following statement regarding that case:

“The time limits for voir dire indicated in the York v. El-Ganzouri case were unreasonably short.”

The results? Not one person attending the conference disagreed with the above statement. 95% of the lawyers and judges answering that question agreed the time limits in the York case were too short, with approximately 85% of those people strongly agreeing the time limits were too short.

So, how could a three judge appellate court panel find that the 20 minute per side time limit was acceptable when almost every judge and lawyer analyzing the case at the ISBA conference found it unacceptable? Of course, one answer is that appellate courts will do whatever they can to uphold a trial court’s ruling.

However, there is something more going on there and trial lawyers see it every day in the courthouse: Trial judges just do not like to let lawyers get into detailed questioning of prospective jurors. I’m not sure of the reasons why, but I believe a good number of judges just want to get the trial started and don’t want to “waste time” on the selection of jurors. That is a flawed perspective, however, because the quicker judges want to move through voir dire, the greater the feeling on the part of litigants that they are not being given a fair shake.

One quick war story on jury selection: The absolute worst jury I ever had was in a case in which the trial judge attempted to control every last detail of the trial and gave very little discretion to the lawyers on how to proceed. She imposed strict time limits on voir dire and she even refused to allow the selection of a single alternate juror even though the trial was expected to last two weeks. The pool of prospective jurors who were trotted into her courtroom at the end of the day was horrific to a defense attorney, and in spite of best efforts, this was reflected in the final twelve jurors who were empaneled. That evening, I conferred with my clients and told them we might have to reassess the likely outcome because of the poor jury. The clients gave me additional settlement authority (which would not have been necessary with an average jury). The plaintiff’s lawyer got cocky and raised his demand.

Then, a funny thing happened: On the first day of trial, one of the selected jurors did not show up and no one could reach her. We waited for two hours, but she was a no-show. The trial judge finally said to the lawyers something like “OK, let’s just go with a unanimous jury of eleven.”

Here’s the thing: Illinois requires jury verdicts to be unanimous; all twelve jurors must agree in this type of case. So, when the judge said we should just go with the verdict of eleven of the worst jurors I had ever seen, I responded “Judge, the defense objects.” It was not good to watch the judge’s face turn red and tell me what a horrible person I was being. I didn’t even have to remind her, however, that I had been the lawyer who requested the selection of an alternate juror and that she had denied my request although it would have avoided this problem. The judge kept pressure on me to accept eleven jurors.

Sometimes, the trial lawyer must be willing to aggravate a judge to promote his/her client’s best interests. At that moment, I knew I would have to take a substitution from that trial judge if I were ever assigned to her in the future or she might choose to recuse herself, but I refused to waive my cleint’s right to twelve jurors. To say the judge was unhappy when she declared the mistrial is an understatement and she made a point of letting the jury panel know they were being dismissed because the defense lawyer refused to proceed with them. Nevertheless, the mistrial was declared and that judge refused to keep the case for its retrial. The matter settled on terms which were very beneficial to my clients when we were assigned out to a different judge and a different jury was selected, so my clients were very pleased.

The question though is, why would a trial judge allow concerns about “efficiency” of a trial to so overwhelm a case that it risks the perception of fundamental “justice?”  Trial judges need to remember that the purpose behind the civil justice system is to provide a forum for people to air their grievances in a civil manner. For them to have faith in that system, the parties must feel assured they will be given a full opportunity to have their cases decided as fairly as possible. Preventing litigants from having enough time to conduct voir dire does not give parties that opportunity.

We don’t need to let trial lawyers have as much time to pick a jury as they want to take. We need to remember, however, that litigants and their attorneys must be permitted to have a good amount of discretion about the manner in which a trial is to be conducted or we will lose the perception that justice is being meted out in a fair way.

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