Getting a Fair Jury in Low-End Tort Cases
Lawyers Share Their Devices For Combatting Bias
By JOHN O. CUNNINGHAM
Plaintiffs in Massachusetts have long complained of juror bias affecting verdicts, but Boston solo practitioner William J. McCrevan Jr. never experienced it himself in more than 10 years of trials.
That changed in the last two years.
First, in 2001, McCrevan says that a Wrentham jury found no negligence when a teenage driver rear-ended the vehicle of his middle-aged client, a mother and “good Samaritan” who had minutes earlier picked up a stranded motorist.
“I thought there was no way to lose that case,” he recalls.
Then, in February, McCrevan was again on the losing end of a verdict he describes as “non-sensical” and which was at the expense of a mother and daughter who were Russian immigrants.
He says the jury did find another driver negligent for speeding through a parking lot and ramming his client’s car, causing her daughter’s head to break the windshield.
But the same jury awarded zero dollars in damages, despite the fact that the injured pair incurred several thousand dollars in medical bills, only a portion of which was covered by so-called “PIP benefits,” and the mother missed time from work as a hairdresser due to her shoulder injuries.
“I was shocked,” says McCrevan.
Other lawyers are not so stunned. They claim such verdicts are often due to jurors’ increasing skepticism of low-end tort cases.
If they are right about juries “zeroing out” low-end cases, it could partially explain a rise in average values of tort verdicts found in a recent Lawyers Weekly study. (A dearth of low-end tort wins would skew the average toward the more lucrative cases; see “Are Torts On The Upswing?” Feb. 17.)
Lowell attorney Kathleen M. O’Donnell, president-elect of the Massachusetts Bar Association, says that “we hear about this all the time, and lawyers see that juries are not just skeptical of soft-tissue injuries now, but they’re wary of broken bones too.”
There is no empirical evidence suggesting an “epidemic” of defense verdicts overall, but the word among lawyers is indeed that if you want a fair and unbiased jury in low-end tort cases, there are extra steps you should take to maximize your chances of getting a fair result.
Those steps include effective requests for and execution of voir dire, and the pre-trial formation and study of focus groups, which can help lawyers address any pre-formed notions in jurors’ minds.
These tools may be of greater concern in light of the recent words of Supreme Judicial Court Chief Justice Margaret H. Marshall in Commonwealth v. Maldonado, a criminal case that has renewed the debate over peremptory challenges.
“I am persuaded that ‘rather than impose on trial judges the impossible task of scrutinizing peremptory challenges for improper motives’ it is time either to abolish them entirely or to restrict their use substantially,” she wrote. (In the case, the SJC ordered a new trial in a gun case after finding that the commonwealth had not met its burden of establishing a race-neutral explanation for using a peremptory challenge to remove the last remaining African-American juror from the jury pool.)
Marshall’s words seem to signal to attorneys that this is a critical time for the future of jury selection in Massachusetts.
Bias Issues to Watch For
Lawyers for plaintiffs are particularly concerned about juror bias regarding immigrants, insurance issues and the integrity of claimants. (Defense lawyers are more reticent on the subject of juror bias and most did not respond to requests to discuss the issue.)
But Barbara Hayes Buell, president of the Massachusetts Defense Lawyers Association, acknowledges that she has found juror bias in voir dire.
The Boston attorney was picking a jury for a medical-malpractice case and one juror — a nurse — said at sidebar, “I’m prejudiced against any foreign doctors, unless they got their training in England.”
Buell also notes she’s only had one hung jury in 30 years, and that case involved a Venezuelan woman seeking our courts to resolve a matter here. There is no guarantee that juror bias caused the hung jury, but some lawyers say there is anecdotal evidence that some jurors are annoyed with non-citizens using the domestic legal system.
McCrevan thinks that his Russian immigrant client may have been the victim of bias, and other lawyers mention anecdotal evidence of similar verdicts of liability without damages for immigrant plaintiffs.
One lawyer, who requested anonymity, says there may be particular concerns about raising insurance premiums to pay for injuries to people who are not citizens.
Dedham attorney Marylin A. Beck says she knows that insurance rates influence verdicts, citing the case of a pedestrian struck at a crosswalk who incurred $180,000 in medical bills after rolling over the hood of a car and breaking the windshield.
The jury took 10 hours to find for the defendant in the case, and a friend of Beck’s told her that one of the jurors specifically mentioned concerns over rising insurance rates in a hallway conversation.
Skeptics dismiss such anecdotal evidence, but O’Donnell points to an ongoing national research project on auto cases, funded by the Roscoe Pound Institute, which has found that citizens across the country commonly report strong sentiments concerning insurance and people who file suits.
New numbers from the study show that 92 percent agree that “there are far too many frivolous lawsuits today.” Many described plaintiffs as “money-hungry.”
Both actual and potential jurors also commonly state that premiums are high and courts are backlogged because plaintiffs try to “milk” the system, yet they tend to believe an injury is serious if there is a lot of damage to the vehicles involved.
What may be most important for lawyers to understand is the typical sentiment that “most times people can settle through the insurance company if it’s really serious,” and “if it has to go to court, then obviously there is something phony going on.”
Local plaintiffs’ attorneys say there is an assumption that insurance of one kind or another has already paid at least the medical bills for serious injuries.
In fact, McCrevan notes that juror questioning allowed in his most recent defeat was very revealing on that subject.
“Their questions showed they were very aware of insurance, and they wanted to know what payments had been made,” he recalls.
“Jurors are not aware that we can’t mention insurance or answer their questions, but when we stick our heads in the sand about it, they get mad,” says McCrevan.
The rule that prohibits discussion of insurance was ostensibly intended to protect against excessive verdicts that penalize defendants who carry lots of coverage, but plaintiffs’ lawyers all agree that the rule now encourages zero verdicts to protect against a “double dip” for the plaintiff.
Those lawyers add that people have a sophisticated understanding of insurance now, with all of the media attention directed toward insurance-related issues, particularly in the health care crisis.
“It’s time for us to re-examine whether we mention insurance at trial,” says O’Donnell.
But Buell thinks any kind of discussion of insurance at trial “will open a Pandora’s box of issues and lead to a lot of appeals.”
Still, she acknowledges that jurors scrutinize documents such as hospital admissions forms for every clue about a case, and they can sometimes find a note on insurance somewhere.
Also, despite the existence of medical liens and workers’ comp liens that jurors don’t understand, Buell says the reality is that the plaintiff may in fact get a double dip.
Leonard H. Kesten of Boston, who handled insurance defense work for many years, suggests that parties might think about stipulating to insurance issues (though he has not done it yet), noting that judges can give stern instructions that they will take care of any insurance payment issues to prevent improper jury deliberation.
But members of the plaintiffs’ bar have not heard any instructions that they believe will cure the problem, and think juror bias issues regarding insurance and other matters will necessitate increased use of voir dire to obtain fair panels in this state.
Stephen A. Lechter, an Attleboro attorney, contends that “it is now the defense who usually asks for a jury in small personal injury cases, and those cases are worth 20 percent less now than they were 15 years ago because of how hard it is to get a fair verdict.”
Handling Voir Dire Issues
Some say that the hardest aspect of voir dire is getting permission to do any kind of juror questioning beyond the judge’s short list of stock questions aimed largely at jurors’ knowledge of one of the parties or competence to serve.
Valerie A. Yarashus, president of the Massachusetts Academy of Trial Attorneys, says that judges are becoming more receptive to allowing a limited number of questions from attorneys, but she notes that this state is still very unique.
“Lawyers from other states are shocked to hear about our system — we are in a tiny minority of states in the way we handle voir dire,” she says.
O’Donnell, McCrevan and Boston lawyer Douglas K. Sheff have all used some form of motion for voir dire to persuade judges to allow specific questions by attorneys or solicitation of responses to specific bias-related questionnaires.
While Sheff is the only one to claim success with such a motion so far, they all say they believe that the empirical basis to support increased voir dire is available.
Experts suggest that lawyers looking to persuade a judge to allow a limited form of voir dire should consider citing: lists of publications about the relationship of insurance premiums and claims; law review articles documenting studies of juror bias; articles showing that the Bay State lags others in jury awards; and statistics showing that defense verdicts occur in 89 percent of the trials in at least one Superior Court study.
Lloyd C. Rosenberg of Plymouth suggests, however, that many judges have gotten more comfortable with voir dire lately than the attorneys.
“[Former District Court] Judge [Daniel B.] Winslow offered it all the time, but very few attorneys elected to do much with it,” he notes.
That is one reason MATA has recently offered training seminars to help lawyers know what to ask and how to ask it in order to effectively uncover bias.
Some lawyers experienced in voir dire say it is important to let the judge know how much time will be taken and how the questioning will occur so that no mistakes lead to mistrial or appeal.
Lawyers and judges, say experts, should conduct all “follow-up” inquiries with jurors who have given problematic answers to initial questions by using a sidebar outside of the hearing of other potential jurors.
Buell, who focuses on med-mal defense, likes for jurors to answer initial questions about whether they or any family members have brought a med-mal action, have suffered an injury similar to the one at issue, or have worked in the medical profession.
She says if any jurors answer “yes” to those questions, then more sensitive follow-up questions may be warranted at sidebar.
But she suggests lawyers should ensure that initial question is not directed solely at an individual juror’s experience, but to that of their family as well, so that the juror does not have to be embarrassed by his answer.
By way of example, Buell cautions med-mal lawyers: “You can’t imagine the number of people who have had stillbirths who could sit on your jury.”
She also adds that jurors with medical backgrounds may sometimes have a bias that a defense lawyer does not want.
In her experience, effective voir dire may eliminate 150 of 200 people on a panel.
Yarashus, who has also handled med-mal cases, says that she has a few “favorite” questions that elicit revealing responses.
She likes to give a brief statement of the law in the case, and ask if there is anything that would prevent a juror from applying the law.
“I get a lot of positive answers to that,” she comments.
In particular, Yarashus likes to ask if a juror can find a doctor negligent “even if he did not intend to do any harm.”
The result? “Every time I ask that, someone has a problem with it, and often multiple people will, but the judges appreciate knowing that,” says Yarashus.
O’Donnell has a number of questions that she proposes for questionnaires, and says several are consistently revealing.
She asks if a juror is a member of any tort reform group, and says that turns up a surprising number of positive responses.
She also asks if jurors believe it is “too easy” to get big verdicts, win too often or have trouble providing compensation for injuries.
But two questions she thinks are most important are whether jury awards impact insurance rates and whether the juror has a problem finding for the plaintiff under the “more probable than not” civil standard.
“Those questions address what jurors are thinking about in deliberation, so you have to know how they answer them,” she says.
But Kesten, who has represented both plaintiffs and defendants, says that “somebody with a real prejudice won’t tell you what they are thinking,” and suggests that most jurors who purport to have a bias are really trying to get out of jury duty.
He recalls a case in which a prospective juror wrote on a questionnaire that he was “prejudiced.”
When asked about that, the juror described himself as “just generally prejudiced” against different ethnic groups.
Kesten recalls his own reply: “I have no problems with this guy — at least he hates everybody.”
The juror winked at him every day in the courtroom and Kesten won the case.
“I am firmly of the belief that any 12 will do, so I am against doing more voir dire,” he says.
Kesten adds that voir dire is time-consuming and expensive, and any emphasis on getting the “right” jury will just “help the rich who can spend money to work the system.”
He says “juries get it right more than 90 percent of the time,” and adds that “most verdicts for $1 or zero damages are a result of plaintiffs over-reaching.”
Buell, on the other hand, does not take a position on voir dire and notes there is no unanimity of thought among defense lawyers, so the MDLA takes no position either.
Focus Groups
Whether or not a bias is revealed in voir dire, some lawyers say that focus groups of people who are demographically matched to your likely jury are the only true compass to guide a lawyer through jurors’ minds.
Focus groups are not confined to attorneys or large firms who have huge resources to pay to have it done professionally. They can be assembled informally using friends, staffers or other volunteers. Few have apparently paid for professionally conducted testing, but Sheff has done it several times.
Using focus groups, Sheff says he has obtained more than one seven-figure verdict or settlement for severely injured clients, and has not lost any of the cases he has tested.
He is quick to point out that he screens cases carefully for merit anyway, but adds that “I will never handle a big case again without using a focus group. It is the single most valuable tool for trial lawyers today.”
According to Sheff, lawyers must test the possible opening statements for both sides of the case along with the evidence to be presented.
“You learn where the gaps are in your case and the jury’s thinking, and you learn to fill in the gaps to address the concerns of the jurors,” he says.
He notes that some jurors have become more skeptical of business defendants after the Enron legacy, and says that lawyers can learn valuable information from focus groups about defense problems that juries may be looking for in a case.
Sheff points to one focus group test that made a lot of assumptions against a plaintiff who fell from an allegedly defective ladder.
“They said the plaintiff must have been heavy at the time, or it was probably late in the day or he must have had a few beers,” he recalls of the group that had simply made up facts to fill in the factual gaps.
The trial lawyer adds that “it is useful to lose in your focus group testing in order to get important information, and to keep adjusting your presentation until you get it right.”
In another case involving a landlord with hazardous conditions on his premises, the focus group wanted to know how that landlord behaved at other places he owned.
“They wanted a pattern of negligent behavior, and without that pattern they could be very forgiving to the landlord,” Sheff comments.
Focus groups can help determine the best order of presenting evidence, the likely questions from a jury and the possible biases that might need to be explored in voir dire, according to Sheff.
He recommends that lawyers start their focus group work during discovery because that may help to target discovery searches and requests.
“I know that I’ve eliminated factors that could have lost a case for me or resulted in smaller amounts of damages in other cases,” he observes.
Sheff has hired both professional psychologists and professional focus group services, depending on the case, and he notes that set fees for such services can run as high as $15,000.
Beck has also started using focus groups, and says she just did her first mock trial for a big case.
“We got a very favorable verdict, and the group changed my focus entirely,” she says.
She thinks focus groups are essential for “rooting out juror bias” and considers the information gleaned from focus groups to be so important that she does not discuss it publicly.
But Kesten, who has received some seven-figure verdicts in representing plaintiffs, does not feel extended voir dire or focus groups are necessary.
His view is that jurors are basically against theatrics.
Kesten points to a $4.5 million judgment he obtained a few years ago where he put one key witness on the stand to testify to damages from harassment and civil rights violations.
He recalls that the testimony of the married woman was short, simple and honest, without embellishment about the trauma from an expert psychologist.
He also points to a recent $1.5 million verdict for a woman who suffered sexual abuse by a therapist.
“She took just 45 minutes on the stand without going on and on about the effects of the abuse, which just gets a jury disgusted,” says Kesten.
Buell recalls an opposite situation, where a family claimed significant damages from a husband’s injury of a torn rotator cuff that had lasting effects.
“It wasn’t that he was faking, but the jury did not see a reason to give any damages,” recalls Buell.
In fact she remembers that the jury delivered a handwritten note to the judge that was very revealing of its thought process.
The jury’s conclusion: “We the jury hope you will take full advantage of your youth, intelligence and other physical abilities to have a good life.”
