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James Heiting cited by “Chicago Lawyer’s” Robert A. Clifford

By Robert A. Clifford

I stood before 12 people, a cross-section of Miami-area residents who were to consider the case of a family who lost a loved one in a small plane that crashed off the coast as it attempted to take off. The cause of the crash was a defective part, manufactured by a local company whose CEO was a generous, well-known philanthropist in the community.

As we went through voir dire, carefully asking questions to detect any biases, predilections, attitudes on the issues, we learned much, not only about how they would accept our theme of the case but also generally about the civil justice system, tort reform, aviation safety and lawsuits. What we learned was that jurors today are much different than just a few years ago. Perhaps the faltering economy has forced people to become more responsible for their own fate or made them more bold to speak their minds. The 12 were very opinionated and vocal in expressing themselves.

Although the exercise I describe was for a mock trial before hundreds of people at a recent American Bar Association meeting in Florida, the hypothetical represented a fact pattern that was very much like a case that my firm handled just a few years ago involving an aging seaplane that crashed off of the coast of Florida on its way to the Bahamas, killing a 27-year-old newlywed woman. Although that matter settled before a jury had to be selected, it was a good look at what we would have faced had we gone to trial there.

I asked if the “jurors” were afraid to fly, if they could find against the community’s generous benefactor, and probed their feelings about lawsuits, lawyers and damages that could amount to millions of dollars. One person was concerned about where the money would be coming from. When told that was irrelevant, her body language and facial reaction appeared as if she had a right to know. Then I ask that final catch-all question: what is it that I need to know about you if you were in my shoes? You can get some interesting responses.

The story of jurors’ attitudes today has grabbed national attention recently after a cover story in The National Law Journal reported “Voir Dire as Contact Sport.” The headline on the inside page read, “Prospective Jurors Verge on Open Rebellion.” It told the story of a case involving a beer truck striking a California UPS driver while she was delivering a package.

With the judge sitting behind a card table at a nearby elementary school because of overcrowded conditions in the adjacent courthouse, the reporter goes on to explain how jurors didn’t just mumble complaints under their breath about a possible two-week trial, they vocally expressed their unwillingness to give up their time to see that justice was done. Catcalls were heard in the makeshift courtroom: “we pay too much” and “there are too many lawsuits.”

The judge deemed the entire panel tainted, unable to be rehabilitated, and dismissed them. According to James Heiting, former California state bar president and attorney for the plaintiff, “both sides were nervous about selecting a jury panel and decided that settlement was the best course for this case.”

What is disturbing is the reason for people’s unruliness and refusal to serve. Whereas before analysts might attribute it to laziness or selfishness, today they point to the faltering economy. People who are self-employed or recently employed say they can’t afford to sit at lengthy trials. Even those who feel somewhat secure in their jobs express fear that a temporary replacement may be found to be more fit and they will suddenly return to no job at all.

I certainly have found that there is a greater reluctance in recent years than before, some of it fueled by the economy, and some from a what’s-in-it-for-me attitude by Gen X, Gen Y and, yes, even their parents and grandparents.

At this writing, jury selection is underway in the 20-count corruption trial of former Governor Rod Blagojevich. “Nice to see you again,” he was reported as saying to some in the gallery. “This isn’t inappropriate, is it?” he asked reporters, referring to U.S. District Court Judge James Zagel’s previous warnings to Blagojevich to limit his pretrial statements.

Readers of this column need not be reminded that the former Governor’s first trial ended with a conviction on a single count and jurors being unable to reach a consensus on 23 other counts. Potential jurors this time are referred to by only a number, and their names will not be revealed until the trial has concluded. Jurors are reported unafraid to ask questions of Judge Zagel and express their opinions in a media-packed courtroom. There are reports that Blagojevich will present his own closing arguments this time around.

In the past, time limits or procedural constraints may have made it difficult to probe for deep-seated biases. Now it appears that prospective jurors are more than willing to tell you exactly how they feel, not so much to get off of a panel, but to vent their frustration over a variety of matters going on in their own personal lives or using jury service as an opportunity to tell others just what they think of the legal system, politicians or whatever the issue is before them. It all comes down to that final question: can you be fair? Courthouse experts say Blagojevich needs to reach only one juror to get another mistrial.

And as for the “hired” jurors at the ABA program a couple of months ago, one gentleman on the panel commented upon receiving his $100 payment for his participation, “Had I known there were going to be so many people in the audience, I would have asked for double.”

Across America, the number of jury trials is dropping like a brick in water, but for those trials that do go forward, lawyers need to remember that their personal credibility is still of utmost importance, and that jury selection in this “Brave New World” has become a process where prospective jurors are unafraid to assert themselves.

This article has been reproduced from the May issue of the Chicago Lawyer and was written by Robert A. Clifford.

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