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June 01, 2017

Litigator's Muse: Have Courage to Confront the Jurors’ Prejudice

Michael Tigar

Voir dire is the first opportunity to confront juror attitudes. Ideally, the jurors will fill out a questionnaire with basic information and answers about employment and such things as what they read and watch. From questionnaire answers and some basic understanding of community demographics, you get an initial idea about prejudices that can affect your case. You may have juror addresses and public information about their political positions, such as what petitions for office holders and public issues they have signed. In your jurisdiction, it may be permissible to drive by jurors’ houses, discreetly, looking for car bumper stickers and yard signs and other indicators.

When voir dire begins, you will want to emphasize that truthful answers are always good even if the juror thinks somebody will be offended.

Members of the jury, this is who I am. Now it is everyone’s God-given right to be prejudiced. I have prejudices, biases, attitudes. I have just plain made up my mind about some things. Every person here will be a great juror, but maybe you have an idea about the issues in this case that mean you would be a better juror for some other case in the courthouse.

Then a juror lobs one back at you. “Well, I think that these people who sue their employer over some workplace remarks are too thin-skinned.” And there you are, with a juror prejudice and your client an employee in a wrongful termination case.

Have courage. You don’t want to “blow the panel”; that is, pollute the whole jury pool. You need to confront this situation.

Thank you very much for that answer. I really appreciate your being straight with us. In this case, one of the things we will be talking about is the insulting and demeaning language used against Mrs. Wilson. The judge will tell you what the law is about that, and of course there will be evidence about what was said and who said it and why. I wonder if any jurors feel that if our law protects people against this kind of treatment, that is a good thing?

Despite good voir dire, jury selection is usually more “juror deselection.” We can use the process to eliminate, for cause or by peremptory challenge, the jurors we feel are most negative. The other side is doing the same thing from its point of view. In many, if not most, cases, one or more jurors who wind up being selected will have attitudes of skepticism toward our case. Issues of politics, race, or religion may lie just below the surface. Attitudes toward plaintiffs claiming injury, insurance companies, plaintiffs’ lawyers, lawyers in general. There may be community attitudes toward our client, or the kind of claim we are presenting or defending. We have all seen these in action. We are stuck with these 12, or six, jurors. How shall we behave?

With courage, I say. In a play I wrote with Kevin McCarthy based on real-life Irish lawyers, we used the work of Dan O’Connell, a great 19th-century Irish barrister. When he was at the bar, Catholics such as himself were not eligible for public office. Jurors were taken from among those who had approved of the laws uniting England and Ireland and therefore upholding the English state church’s dominant role in a country where most people were raised Roman Catholic.

God bless England! She set over us Protestant judges and ruled that only Protestants, supporters of the Union with England, could serve on the juries. Oh, that was a challenge to the Catholic advocate. I learned to walk up to the twelve in the jury box and put it to them squarely.

“This is not the time to discuss how you were put in that jury box, let alone get any remedy on that subject. There is considerable discrepancy of opinion between you and me, at least as to the Repeal of the Union. If you had not so differed from my own opinion, you would not be in this very box. This is a disadvantage which does not terrify me. You swore an oath to administer justice. I challenge you to keep it. Or will you let this prosecutor trap you into betrayal of your jurors’ oath out of misguided zeal for your religion?”

Kevin McCarthy & Michael E. Tigar, Warrior Bards (1989).

Let’s look at the following two excerpts. In the first excerpt, imagine an advocate who suspects possible juror prejudice and decides to confront it. The method of confrontation is not to lecture the jurors but to empower one or more of them to have their own courage—the courage to confront prejudice in the jury room.

Fidelity to the law—a rule-oriented argument—suits the advocate who is seeking to override prejudice that may lurk in the facts of the case. The jury may look upon the criminal defendant as a worthless bum, but “the law” bestows rights upon him and duties upon a jury, namely, to weigh the evidence.

“Suppose you are in the jury room, and somebody looks at you and says, ‘Well, you know, that defendant didn’t take the stand.’ What can you say to that person? You can look them in the eye and say, ‘Now, wait a minute. We all took an oath that we would follow the law as the judge gave it to us. And the judge said, just as clear as anything, that the prosecutor has the whole burden of proof and the defendant doesn’t have to prove anything. You can’t hold it against the defendant that his lawyer advised him that this jury was made up of honest people who would follow the law the way the judge laid it out.’”

Michael E. Tigar, Jury Argument: You, the Facts, and the Law, in The Litigation Manual 42, 49 (John G. Koeltl & John S. Kiernan eds., ABA Section of Litigation 1999).

The second excerpt draws on the idea that jurors respect the oaths they took:

The law includes the obligations of the juror’s oath. Every juror is examined, in voir dire, under oath. The oath will be more or less significant, depending upon how extensive voir dire has been. Every juror also takes an oath to try the case “well and truly.” These oaths are rituals that the advocate must reinvoke in final argument.

“We all take an oath to be able to play our part in this case. I took one to be a lawyer. So did this prosecutor over here. His Honor took an oath, and swore to uphold the Constitution. This is the same oath that every judge across this land must take.

“And each of you took an oath. In fact, you took two. Just before the first witness took the stand, you swore to well and truly try this case. And, I believed you then. When the lawyers and the judge were asking questions in the first part of the case, when we were choosing you to be jurors, you were answering under oath. You said that if this prosecutor did not prove this case beyond a reasonable doubt, you would vote ‘not guilty.’ And, I believed you then. You said you understood that in America somebody like Mr. Smith here, who is on trial for his liberty, does not have to prove anything. And, I believed you then.”

Id. at 49.

Michael Tigar

The author, a former Litigation Section Chair, has been a trial lawyer, law teacher, and writer for 50 years. The following article is an excerpt from his Nine Principles of Litigation and Life (ABA 2009).