voir dire and opening statements - media.straffordpub.com

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Voir Dire and Opening StatementsSelecting the Right Jury and Setting the Framework for the Case

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, DECEMBER 21, 2011

Today s faculty features:

Peter Ross, Partner, Browne George Ross, Los Angeles

Timothy O'Neill, Partner, Snell & Wilmer, Denver

George P. Young, Of Counsel, Haynes and Boone, Fort Worth, Texas

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VOIR DIRE AND OPENING STATEMENTS

Timothy O’NeillPeter Ross

George Parker YoungGeorge Parker Young

December 21 2011December 21, 2011Strafford PublicationsWebinar Series

Voir Dire and Opening StatementsStatements

Selecting the Right Jury and Setting the Framework for the Case

Timothy O’NeillSnell & Wilmer

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December 21, 2011

Voir Dire Strategies andVoir Dire Strategies and Techniques

1. Tainted jury panel.2. Use of a questionnaire.q3. Weeding out jurors. 4 Obtaining adequate time to conduct4. Obtaining adequate time to conduct

meaningful examinations.U i f j d t i i di5. Using focus jury data in voir dire.

6. Two radically different approaches to voir

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dire.

Historical Perspective• The importance of this privilege to our founding fathers

was embodied in Article III of the United StatesConstitution:Constitution:

“The Trial of all Crimes, except in Cases ofI h t h ll b b J d h T i l h llImpeachment, shall be by Jury; and such Trial shallbe held in the State where the said Crimes shall havebeen committed; but when not committed within anyState, the Trial shall be at such Place or Places as theCongress may by Law have directed.”

10U.S.C.A. Const. Art. III § 2, cl. 3

Historical Perspective• The right to trial by jury in matters of common law was equally

valued and expressed in the Seventh Amendment to theConstitution as follows:

“In Suits at common law, where the value in controversy shallexceed twenty dollars, the right of trial by jury shall bepreserved, and no fact tried by a jury, shall be otherwisepreserved, and no fact tried by a jury, shall be otherwisereexamined in any Court of the United States, than accordingto the rules of the common law.”

U.S.C.A. Const. Amend. VII-Jury Trials

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Historical Perspective• These rights were codified in 28 U.S.C. § 1861 which provides that:

“It is the policy of the United States that all litigants in Federalt titl d t t i l b j h ll h th i ht t d d titcourts entitled to trial by jury shall have the right to grand and petit

juries selected at random from a fair cross section of thecommunity in the district or division wherein the court convenes. Itis further the policy of the United States that all citizens shall haveis further the policy of the United States that all citizens shall havethe opportunity to be considered for service on grand and petitjuries in the district courts of the United States, and shall have anobligation to serve as jurors when summoned for that purpose.

28 U.S.C. § 1861-Declaration of Policy

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Historical PerspectiveDiscrimination regarding the right to serve on a jury was expressly disallowed in 28 U.S.C. § 1862, which provides that:provides that:

“No citizen shall be excluded from service as a grand orNo citizen shall be excluded from service as a grand or petit juror in the district courts of the United States or in the Court of International Trade on account of race, color religion sex national origin or economiccolor, religion, sex, national origin, or economic status.”

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Hi t i l P tiHistorical Perspective• The following opinion issued by Justice Hunt of the United States

Supreme Court in Railroad Co. v. Stout, 84 U.S. 657, 664 (1874) isoften cited as the hallmark articulation of the virtue of jury trials:

“Twelve men of the average of the community, comprising menof education and men of little education, men of learning andmen whose learning only in what they themselves have seen orheard the merchant the mechanic the farmer the laborer;heard, the merchant, the mechanic, the farmer, the laborer;these sit together, consult, apply their separate experience ofthe affairs of life to the facts proven, and draw a unanimousconclusion. This average judgment thus given, it is thegreat effort of the law to obtain It is assumed that twelvegreat effort of the law to obtain. It is assumed that twelvemen know more of the common affairs of life than doesone man; that they can draw wiser and safer conclusionsfrom admitted facts, thus occurring than a single judge.”

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Th L f J S l tiThe Law of Jury Selection

Summary of Procedural Rules:

Jury Selection is Essentially a Process of Narrowing:

Q lifi ti J Wh l/V i Qualification: Jury Wheel/Venire Challenges for Cause Peremptory ChallengesPeremptory Challenges

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The Law of Jury Selection• Procedure for Jury Selection or Voir DireProcedure for Jury Selection or Voir Dire

Federal: Jury selection is governed by F.R.C.P. 47

The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination.p p j y

If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper or must itself ask any of their additional questions it considers proper.

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The Law of Jury Selection• Procedure for Jury Selection or Voir Dire (continued)

Just as in the federal system, the intent of voir dire in the state court system is to enable the court and counsel to “select as fair and impartial a jury as possible.” Oglesby v. Conger, 507 P 2d 883 885 (C l A 1972)P.2d 883, 885 (Colo. App. 1972).

The Court should allow considerable latitude in conducting voir dire in order to allow counsel to intelligently exercise challenges for cause and peremptory challenges. Smartt v. Lamar Oil Co., 623 P.2d 73, 76 (Colo. App. 1980).

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The Law of Jury Selection• Challenges for Cause

• Federal: A juror who fails to meet one of the statutory qualificationsfor jury duty or is biased as between the parties or as to thesubstance of the dispute is subject to a “challenge for cause.”

• Challenges for cause must be determined by the court according to28 U.S.C. § 1866(c)(4).

• Impartiality in the constitutional sense means an actual existence ofopinion in the mind of a juror that will raise the presumption ofimpartiality. Geagan v. Gavin, 292 F.2d 44 (1st Cir. 1961).

• The burden of persuading the court that a prospective juror is not

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impartial rests with the challenger. Hopkins v. County of Laramie,730 F.2d 603 (10th Cir. 1984).

Th L f J S l tiThe Law of Jury Selection• Challenges for Cause (continued)Challenges for Cause (continued)

Some States have specific criteria. An example formColorado Rule 47(e):Colorado Rule 47(e):

6) Having formed or expressed an unqualified opinion or belief as to themerits of the action;merits of the action;

7) The existence of a state of mind in the juror evincing enmity against orbias to either party.

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Th L f J S l tiThe Law of Jury SelectionChallenge to the ArrayChallenge to the Array

• In the both federal and state system, the trial attorney has a right to challenge the array which seeks to remove all jurors and obtain anchallenge the array which seeks to remove all jurors and obtain an entirely new panel.

• Although this tactic is unusual, if there is a statistical irregularity or other impropriety in the make-up of the panel as a whole, challenges toother impropriety in the make up of the panel as a whole, challenges to the array are permitted.

• Case law notes, however, that “historically challenges to the array have been allowed only on a showing of material departures from thebeen allowed only on a showing of material departures from the requirements from the law governing the selection of venire panel.” Payne v. Russ Vento Chevrolet, Inc., 528 P.2d, 935, 937 (Colo. App. 1974).

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)

The La of J r SelectionThe Law of Jury SelectionPeremptory ChallengesPeremptory Challenges

Federal: F.R.C.P. 47(b) requires the court to allow the number of peremptory

challenges provided by 28 U.S.C. § 1870. That section provides for three peremptory challenges.

Several defendants or several plaintiffs may be considered as a single party for purpose of making peremptory challenges.

No reason need be given for the use of peremptory challenges. As discussed in detail later, however, litigants may not use peremptory , , g y p p y

challenges to exclude jurors on account of their race or gender. The manner in which peremptory challenges are exercised in the

federal system varies considerably among jurisdictions.

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y y g j

Th L f J S l tiThe Law of Jury SelectionPeremptory ChallengesPeremptory ChallengesColorado: In the state system, peremptory challenges are governed by C.R.C.P

47(h). Each side shall be entitled to four peremptory challenges. If there is more than one party to a side they must join in such

challenges. The court has discretion to allow additional peremptory challenges as

it considers appropriate depending on third party practice or theexistence of an intervenor.

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Avoiding the Tainted Jury Panel Remember: What are you trying to accomplish: To reveal grounds for potential challenges for cause. To reveal information that will help the attorney to exercise

peremptory strikes intelligently. To prepare the jurors for the proof, and, in so doing, to

emphasize favorable facts and downplay unfavorable ones. To prepare the jurors for the law by emphasizing favorable lawo p epa e e ju o s o e a by e p as g a o ab e a

and attempting to limit the effect of unfavorable law. To develop rapport with the jury. To obtain commitments from the jury To obtain commitments from the jury. To personalize the client. To advocate the client's case. J d D id Hitt J S l ti i F d Ci il Liti T

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Judge David Hittner, Jury Selection in Fed. Civil Litig., TexasTech Law Review (1992).

Weeding Out Jurors:Weeding Out Jurors:Effective Communication• Although the process involves information gathering do not• Although the process involves information gathering, do not

make the mistake of treating voir dire as adversarial cross-examination.

• It is important to elicit information for the purposes ofappropriate decision making concerning challenges for causeand peremptory strikes, but the technique utilized must bedesigned to develop this action in a non-adversarial way.

• Studies of juror perceptions conclude that jurors are mostreceptive to lawyers who are well organized knowledgeablereceptive to lawyers who are well organized, knowledgeableabout the facts of the case, confident, authoritative, andpolite.

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• Avoid making strident, pushy or abrasive comments orarguments.

Weeding Out Jurors:Weeding Out Jurors: Effective Communication The initial series of questions should begin in the most non-

threatening manner as possible, perhaps following uponcertain concepts discussed by the judge or opposing counsel.

Instead of telling the jury that your approach is intended toidentify “biases” or “prejudices,” introduce the concept ofdetermining “preconceived ideas” or “notions,” which jurorsmay have brought to the courtroom as a result of lifemay have brought to the courtroom as a result of lifeexperiences and the need to identify these concepts in order toassure a fair and impartial jury for both sides.

Assure them that there is nothing wrong with preconceivedideas, but it is important to be open and honest so that allparties benefit from the process.

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Weeding Out Jurors:Weeding Out Jurors: Effective Communication Eye contact and responsiveness is a key to developing

meaningful connections with jurors.

If responses are made to a general question and follow-ti d t i di id l j kup questions are made to individual jurors, make sure

that you use the juror’s name, determined from yourspreadsheet or plan, and listen politely to responses.

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Weeding Out Jurors:Weeding Out Jurors: Effective Communication A technique that is useful when a juror is forthcoming

early in the process is to thank the juror sincerely for hisor her candoror her candor.

If written juror questionnaires are permitted, it is not If written juror questionnaires are permitted, it is notnecessary or even appropriate to ask follow-upquestions to every single member of the potential panel.This may be seen as gratuitous and not a sincere effortThis may be seen as gratuitous and not a sincere effortto inquire about views or preconceptions.

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Weeding Out Jurors:Weeding Out Jurors: Effective Communication

• As Professor McElhaney has stated, “While you arepicking a jury, they’re picking a lawyer.”

Jurors form opinions about lawyers on severalbases and you need to be open and receptive tobases and you need to be open and receptive tojurors and non-judgmental about them.

“If you want them to like you, you’ve got to likethem.”

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Ethical ConsiderationsImproper Use of Peremptory Strikes: the Batson ChallengeImproper Use of Peremptory Strikes: the Batson Challenge

Peremptory challenges cannot be based on race.

P t h ll t b b d d Peremptory challenges cannot be based on gender.

Rule applies to prosecution and defense in criminal cases.

Rule applies to civil cases.

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Ethical ConsiderationsEthical ConsiderationsImproper Use of Peremptory Strikes: the Batson Challengep p p y g

Batson v. Kentucky, 476 U.S. 79 (1986) involved thecriminal prosecution of an African-American defendantcriminal prosecution of an African-American defendant.

Prosecution used its peremptory challenges to strike allAfrican-Americans from the venire.

Defendant was convicted by an all-white jury.

U S Supreme Court held that the equal protection clause U.S. Supreme Court held that the equal protection clauselimited a state prosecutor's ability to peremptorily strikepotential jurors because they were the same race as thedefendant

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defendant.

Ethical ConsiderationsI U f P t St ik th B t Ch llImproper Use of Peremptory Strikes: the Batson Challenge The Supreme Court extended the Batson principle to civil cases in

Edmundson v. Leesville, 500 U.S. 614 (1991). The defendant utilized two of its three peremptory strikes to eliminate

black panelists. The Supreme Court’s application of Batson hinged upon its The Supreme Court s application of Batson hinged upon its

determination that governmental action was involved in the exerciseof peremptory strikes by civil litigants.

The Court rejected the idea that there was no “state action” The Court rejected the idea that there was no state actionassociated with the exercise of peremptory challenges in civil cases.

“Without the overt, significant participation of the government, theperemptory challenge system, as well as the jury trial system of

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peremptory challenge system, as well as the jury trial system ofwhich it is a part, simply could not exist.” Id. at 623.

Ethical ConsiderationsEthical ConsiderationsImproper Use of Peremptory Strikes: the Batson ChallengeImproper Use of Peremptory Strikes: the Batson Challenge

A further extension of the Batson principle occurred in Powers v.Ohio, 499 U.S. 400 (1991), in which the Supreme Court ruled that the

f t i i l t t th t ’ bilit t h llrace of a party is irrelevant to the party’s ability to challenge race-based peremptory strikes.

Until the Powers decision, the party raising a Batson challenge wasrequired to demonstrate, as part of a prima facie showing, that he wasa member of the racial group against which another partydiscriminated in its exercise of peremptory strikes.

The Supreme Court eliminated any such requirement in Powers,finding that a white defendant had standing to raise a panelist’s rightnot to be excluded from a jury on account of race.

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Ethi l C id tiEthical ConsiderationsImproper Use of Peremptory Strikes: the Batson ChallengeImproper Use of Peremptory Strikes: the Batson Challenge

Finally, the Court extended Batson protections to challenges basedy gon gender.

In J.E.B. v. Alabama, 511 U.S. 127, 146 (1994), the Supreme Courtdetermined that: “The Equal Protection Clause prohibitsdiscrimination in jury selection on the basis of gender, or on theassumption that an individual will be biased in a particular case for noreason other than the fact that the person happens to be a woman orreason other than the fact that the person happens to be a woman orhappens to be a man.”

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There are essentially three aspects of the Batson hearing:1) establishment of a prima facie case of discrimination;

2) analysis of race neutral explanations for peremptory strikes; and

3) determination by the Court.

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Ethi l C id tiEthical ConsiderationsImproper Use of Peremptory Strikes: the Batson ChallengeImproper Use of Peremptory Strikes: the Batson Challenge

The prima facie showing requires more than just a showingthat a party struck members of a particular racial group.

Instead the challenging party must “raise an inference” that Instead, the challenging party must raise an inference thatthe strikes were executed in a racially discriminatory manner.

The challenging party may need to rely upon questions orstatements made by the striking party during voir dire thatsupports such an inference of discrimination

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supports such an inference of discrimination.


If the objecting party successfully makes out a prima facie case, thecourt must then hold a hearing pursuant to Batson’s evidentiarycourt must then hold a hearing pursuant to Batson s evidentiarystandards which require the striking party to give a “clear andreasonably specific explanation of legitimate reasons for the strike.”

If the party refuses or is unable to justify the strikes on non-racialgrounds, the court will likely find a Batson violation has occurred.

This phase of the hearing can involve testimony by lawyers actuallyinvolved in the strike process. Attorneys notes may be discoverable ifthey are relied upon during testimony.

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Ethi l C id tiEthical Considerations

Improper Use of Peremptory Strikes: the Batson Challenge

Th f itt j ti i id i ifi tl i The use of written juror questionnaires can aid significantly inidentifying racial and gender neutral factors.

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Ethical ConsiderationsImproper Use of Peremptory Strikes: the Batson Challenge

Some of the explanations the courts have found sufficient include thef ll ifollowing:

A potential juror’s overt hostility or sympathy to a party. See Barfieldv. Orange County, 911 F.2d 644 (11th Cir. 1990)g y ( )

Affiliation with a party or witness. See United States v. Alston, 895F.2d 1362 (11th Cir. 1990)

Prior experience with the subject matter of the trial. See United Statesv. Guera-Marez, 928 F.2d 665, 673 (5th Cir. 1991)

Inattentiveness or unwillingness to follow evidence or law. See United

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gStates v. Sherrills, 929 F.2d 393 (8th Cir. 1991)

Ethical ConsiderationsImproper Use of Peremptory Strikes: the Batson ChallengeImproper Use of Peremptory Strikes: the Batson Challenge Lack of candor or forthrightness. See United States v. Bennett, 929

F.2d 1548 (11th Cir. 1991)N i l f b k d j if i ik S U i d Non-racial aspect of background justifying strike. See UnitedStates v. Hoelscher, 914 F.2d 1527 (8th Cir. 1990). This caninclude a panelist’s lack of education, especially in a complicatedcase. See United States v. Hoffman, 847 F.2d 138 (4th Cir. 1998)case. See United States v. Hoffman, 847 F.2d 138 (4 Cir. 1998)

Demeanor or dress. See United States v. Hughes, 911 F.2d 113(8th Cir. 1990)A l k f i S U it d St t J k 914 F 2d Age or lack of experience. See United States v. Jackson, 914 F.2d1050 (8th Cir. 1990)

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If non-race factors are articulated, the challenging party may thenattempt to demonstrate that such assertions are “mere pretext.”

The Court must then make findings.

If the trial court determines that a party has discriminated againstpotential jurors on the basis of race it should initiate a voir direpotential jurors on the basis of race, it should initiate a voir direproceeding before a new panel.

Some courts, however, void the peremptory challenges and seat thej i th di th d f th l t b j f thjury in the ordinary method of the lowest number jurors for thenecessary seats.

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Ethi l C id tiEthical ConsiderationsImproper Use of Peremptory Strikes: the Batson Challenge

The standard of review for a court’s findings on appeal is The standard of review for a court s findings on appeal is“clearly erroneous.”

In Batson, the Supreme Court stated that “since the trial judge’sfindings largely turn on evaluation of credibility, a reviewingcourt ordinarily should give those findings great deference.”

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Batson and its progeny present a very real risk to trial attorneys.

In jurisdictions that use the remedy of striking challenges, trial lawyersare then faced with the worst of all possible outcomes - theadversary’s peremptory challenges of your best jurors are upheld andadversary s peremptory challenges of your best jurors are upheld andyour peremptory challenges your adversary’s best jurors are voided.

This can be potentially outcome dispositive in a jury trial.

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VOIR DIRE AND OPENING STATEMENTS: FOCUS JURIES AND JURY QUESTIONNAIRES

George Parker YoungHaynes and Boone, LLP

© 2011 Haynes and Boone, LLP

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FOCUS JURIESFOCUS JURIES: MAIN VOIR DIRE BENEFITS

• Should identify favorable jurors (“Friends”).

• Should identify hostile jurors (“Enemies”).

• Alert you to most critical conversations for yvoir dire.


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FOCUS JURIESFOCUS JURIES: OTHER VOIR DIRE BENEFITS

• Identify helpful themes for your side.• Identify OTHER side’s themes HARMFUL to yourIdentify OTHER side s themes HARMFUL to your

side.• Identify good ways to explain BAD FACTS.y g y p• Discover good “juror language” for your case.• Allows testing of IMPORTANT visual aids.Allows testing of IMPORTANT visual aids.• Test videos of key witnesses (crucial to witness prep).


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QUALITATIVE QUANTITATIVEQUALITATIVE vs. QUANTITATIVE INFORMATION

• Focus Juries: Qualitative ResearchFocus Juries: Qualitative Research

C it P lli Q tit ti R h• Community Polling: Quantitative Research


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FOCUS JURY DRAWBACKS• Poor tool to test actual damages and punitive

(malicious/gross) damages(malicious/gross) damages.– Some info. on predisposition toward damages.

• Not necessarily predictive of liability• Not necessarily predictive of liability.• Unless show significant video of key witness,

di i f j i lmay not predict impact of greatest jury trial variable: LIVE WITNESSES.


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FOCUS JURY ELEMENTS/STEPS [2.5-3.0 hours]

1. Screener before day/night of focus jury.2. Typical “jury questionnaire” of 20-30 shortyp j y q

questions.3. Stimulus.4. Initial impressions questionnaire. 4-5 OPEN

ENDED questions.5 Moderator conducted “jury deliberations ”5. Moderator-conducted “jury deliberations.”6. Jury “vote.”7 Detailed written questionnaire


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7. Detailed written questionnaire.

STEP ONE: SCREENER• Screener before day/night of focus jury.

– Screen out obviously disqualified panel– Screen out obviously disqualified panel members/jurors.

– Approximate typical voir dire panel demographicsApproximate typical voir dire panel demographics in the jurisdiction.

• Weight jurors against your caseWeight jurors against your case.– Two back to back panels


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STEP TWOSTEP TWO: JURY QUESTIONNAIREQ

• Typical “jury questionnaire” of 20-30 short yp j y qquestions– 10-15 minutes after arrival.


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SAMPLE JURY QUESTIONNAIRE:Fraud and Breach of Contract


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STEP THREESTEP THREE: STIMULUS

• Read to entire panel.– “Script” of 30-45 minutes Verbal and written– Script of 30-45 minutes. Verbal and written.– Should NEVER EXCEED 1 hour.

Plaintiff; Defendant; Rebuttal (2 3 minutes)– Plaintiff; Defendant; Rebuttal (2-3 minutes).– Include playing of BRIEF key witness videos.


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STEP FOUR INITIALSTEP FOUR: INITIAL IMPRESSIONS QUESTIONNAIREQ

• Four to five more open-ended questions– 5-10 minutes– Who/which side do you favor?– Why? (Key fact or argument)y ( y g )– Damages range you would consider awarding?– What was confusing to you about this case?– What would you like to know that you weren’t

told?


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STEP FIVE: MODERATOR CONDUCTED “JURY DELIBERATIONS”

• Usually videotaped.• Moderator is the key• Moderator is the key.• Minimum of 1 hour (at least 5 minutes per

“j ”)“juror”).• Let ALL panel members/jurors talk—bring out

shy ones.


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STEP SIX: JURY “VOTE”• 5 minutes• Public or private (written)• Public or private (written)• Prefer private• Liability and damages


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STEP SEVEN: DETAILED WRITTEN QUESTIONNAIRE

• 20-30 minutes• Individually completed• Individually completed.• Compare to initial questionnaires.• Most valuable tool in voir dire.


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KEY FOCUS JURY TIPS• Two panels more than twice as effective as one

(though still only qualitative).• Variations:

– In-person attorney presentations– Reworded presentations played on video – Contrast key documents/exhibits– Visual aids/timelines/chronologies– Consider different ways to test attorney


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presentations/Effectiveness

COSTS• Stream-lined (smaller panel): $15,000

(Abbreviated follow-up report)(Abbreviated follow up report)• Typical: $20,000-$25,000

S t d E i• Saturday vs. Evening• Around holidays• No frequent flyers


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INSIST ON DETAILED FOLLOW-UP WRITTEN REPORT WITH CROSS-TABS

• Should be provided in format easily usable in jury selectionjury selection.

• Don’t put too much weight on damages numbersnumbers.

• Essential for planning jury questionnaire and i di tivoir dire questions.


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VOIR DIRE AND OPENING STATEMENT

Peter RossBrowne George Ross LLP

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Importance of the Opening StatementImportance of the Opening Statement

1. It’s your opportunity to figure out what your case is about.

2. It’s your opportunity to tell the jury what your case is abouty

–And your first opportunity to convince them you’re rightyou re right.

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• Be a story teller• Be a story teller.

• What is my story?

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Use of GraphicsUse of Graphics

• Players chart

• Product involved• Product involved

• Key documents

• Time line

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• Don’t let the graphics get in the way of tellingDon t let the graphics get in the way of telling your story.

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Neurovision Medical Products, Inc.(F l RLN S I )

NuVasive, Inc.(Formerly RLN Systems, Inc.)

Dr. J. Lee ReaAlexis Lukianov Corbett StoneStephen Reitzler Rick SimmonsBrian Kelleher Steve McGowanBrian Kelleher Steve McGowanJeff Blewett

NEUROVISION NEUROVISIONNEUROVISION NEUROVISION

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VOIR DIRE ANDVOIR DIRE AND OPENING STATEMENTS

Peter RossBrowne George Ross LLP

George Parker YoungHaynes and Boone, LLP

Timothy O’NeillSnell & Wilmer

[email protected]

[email protected]

[email protected]

December 21 2011December 21, 2011Strafford PublicationsWebinar Series

voir dire and opening statements - media.straffordpub.com

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