CAN AND SHOULD YOU DISCUSS A SPECIFIC DOLLAR AMOUNT IN JURY SELECTION?

Defense attorneys do not want Plaintiff’s counsel discussing a specific dollar amount in jury selection.  They recoil at the idea that a plaintiff’s lawyer, like a skilled personal injury lawyer Newport Beach CA relies on, would stand up in Jury Selection—so soon after being introduced to a panel of strangers—and discuss money.  Why?  Why do they file motions in limine to keep you from doing it?  Because they would prefer to only deal with it in close.  They would prefer to act shocked and claim to the jury that “finally, after all these years of litigation, we finally find out what this case is about (and, by silent implication why it did not settle)—the plaintiff’s greed!  Just look at how much they are asking for!”  This combination of feigned surprise and righteous indignation is a defense attorney’s stock and trade. Imagine now, if you can take that power away from them by looking the jury in the eye and telling them right up front—before they are selected—that you will be seeking $10 million dollars in this case.

“$10 million dollars.” That will get a reaction, all right, one that you want. For those jurors who do not balk at that number, who understand that such a high number may just equal the damages in the case, they will say so in a calm and understated way.  For the tort reformers, the people who “do not believe” in damages for pain and suffering, they will generally loudly protest.  They will expose their disdain for damages, the tort system, the case, and maybe even the lawyer asking the questions.  This produces a net positive effect.  At best, it may produce a cause challenge, prompting the judge to excuse the juror.  At worst, it will encourage dialogue between counsel and the prospective jurors and will give counsel and intelligent basis on which to exercise a cause challenge and eliminate a tort reformed juror who will remain inflexible throughout the case.

THE LAW IS ON YOUR SIDE

You will need to remind the court that the Plaintiff does not intend on asking the jurors to place themselves in the plaintiff’s position and invite jurors to award non-economic damages based on those feelings. However, Plaintiff’s trial counsel should not be precluded from proposing/requesting a dollar figure during closing arguments or ask potential juror questions during voir dire as to whether they would be able to award a certain dollar figure with respect to non-economic damages as by doing so, Plaintiff’s counsel is not making a “golden rule” argument, she is making a lucid inquiry into potential bias.

I have never seen any direct authority for the position that Plaintiff’s counsel should be prohibited from simply proposing any specific amount of non-economic damages as such a suggestion by itself alone would not cause any prejudice nor violate Defendants’ due process rights. Such a suggestion by itself would also not distort the jury’s frame of reference in determining what amount of damages is appropriate.

With respect to voir dire, both parties are entitled to engage in a “liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case.” The “form and subject matter of voir dire questions” can be based on any “unique” element of the case or “responses or conduct of jurors which may evince attitudes inconsistent with suitability to serve as a fair and impartial juror in the particular case.”

A “liberal and probing” voir dire in this type of case requires Plaintiff’ attorney to ask potential jurors – “If the evidence in this case justifies it, will you be return a verdict for $10 million.” It is expected that many jurors will say “no” and that such a demand triggers bias against Plaintiff and her attorneys – bias that Plaintiff is entitled to know about. This type of questioning allows Plaintiff to probe and triggers frank and robust communications with jurors. Plaintiff should not learn of the jurors “responses” or “attitudes” to award such a sum by a defense verdict or a compromise verdict. Rather, Plaintiff is entitled to hear the prospective jurors “responses” and “attitudes” to these issues before they are selected.

Simply put, if I told the jurors that the amount in controversy was $100, no one would be “biased” by that amount.  It does not stir any emotion or feeling in the jury.  It is only when the amount is “high” like, say, $10 million, where people begin to feel bias.  This likely comes from envy—if I award $10 million dollars, this stranger will be much richer than I will ever be—a feeling inside all of us that should be explored right up front.

Good Luck!

Bruno NaluThanks to our friends and contributors from Bruno Nalu for their insight into jury selection.