Friday, June 05, 2009
Jury Watch: Economic voir dire
Identifying jurors feeling worried, frantic or overwhelmed by the economy is crucial in these times
By Trisha Renaud, Special to the Daily Report
During the Great Depression, jobless Atlantans went begging for jobs anywhere they could find them. One possible place, according to “Living Atlanta: An Oral History of the City,” by Cliff M. Kuhn, Harlon E. Joye, E. Bernard West and Michael L. Lomax, was the county courthouse.
Every Monday morning, destitute men headed to court, hoping that an extra juror might be needed for some trial and that they could earn a bit of pay.
Today, despite the reeling economy and mounting job losses, there are no volunteers for jury duty waiting on the courthouse steps.
At courthouses around the country, it’s getting harder and harder to find jurors to serve. Requests for hardship excuses from jury duty are way up, according to numerous news accounts.
That’s not a surprising development, given the pitifully low pay given jurors in many jurisdictions.
Potential jurors are anxious, stressed and sometimes angry about their financial straits. Some are preoccupied with worry about losing their jobs should they be absent for more than a day or two. Even when assured that it is illegal to fire an employee for performing jury duty, they still fret that they’ll be targeted in the next round of layoffs. As for small business owners or the self-employed, the last thing they want to hear is that they must lose out on business while on a jury.
According to a March 9 Gallup poll, 38 percent of workers said they had worried about money just the previous day. Another Gallup poll issued March 27 found that nearly one in four Americans reported that they were worried about being able to pay their monthly bills over the next six months.
Certain age groups feel particularly vulnerable in this economic climate, according to a May 14 Pew Research Center survey. Adults 65 and older, many of whom have already retired, were less likely to report that they had cut back on spending, lost retirement funds or had trouble paying bills. In contrast, adults between ages 50 and 64 lost more retirement funds and were the most anxious about being able to retire. Younger adults (under 50) experienced more job loss than other age groups, but were the most optimistic about the future.
Assessing jurors in today’s hard times calls for a careful-and considerate-voir dire.
The legal blogs are full of speculation about whether plaintiffs or defendants stand to benefit the most from this shaky economy, but no hard data exists to substantiate either claim. Moreover, each case has its unique facts, parties and issues.
But this much can be said: Whether or not your case involves damages, you’ll want to identify those jurors who are feeling worried, frantic or overwhelmed by events out of their control.
The anxious or angry juror may often be intolerant and judgmental, looking to place blame rather than weigh out the pluses and minuses of each side’s case. The preoccupied juror, whose mind will be elsewhere, may be prone to let others make decisions for her. A careful and well-designed voir dire should provide insight as to which side those stressed-out jurors may blame or how strong a juror that distracted jobseeker might be.
If you have looked to a particular type of juror in the past as one who is typically favorable to your side, you should look again in the light of today’s economy. While lower income earners and minorities have taken the hardest hits lately, nearly all sectors of society are feeling some degree of economic pain. With the changing economy comes changes in jurors’ circumstances and attitudes.
If your client is an employer or corporate executive, the need for thorough voir dire is critical. Trust in big business, particularly large financial institutions, has plummeted.
A February Harris poll found that an astonishing 71 percent of Americans believe most people on Wall Street would break the law if they thought they could make a lot of money and get away with it. The same poll found that 87 percent believe that Wall Street needs more regulation.
But polls only give an overview. Your job in voir dire is to get at each juror’s situation and how it might affect their service.
Doing so takes genuine empathy for jurors’ situations. A considerate voir dire does not belittle jurors’ concerns, but is respectful of them. If you have a relative or acquaintance who has lost a job, or is fearful about retirement, they may have some insight to offer. And acknowledging to jurors that your own friend or relative has troubles may encourage jurors to be honest about their own situation.
Pretrial research such as focus groups or surveys will also help you get a read on your jury pool’s attitudes in today’s economy.
Recently, lawyers defending former Monster Worldwide Inc. executive James Treacy on securities fraud charges, had trial consultants conduct a survey to determine community attitudes toward corporate executives. The results? Nearly three out of four people agreed with a statement that the economic crisis was caused by careless and greedy senior corporate executives. Nearly half agreed that, if the government accuses such an executive of committing financial fraud, that executive probably did it.
Treacy’s lawyers, in a motion, cited the results to argue that more extensive voir dire, including a written questionnaire, was needed to ensure a fair and impartial jury.
Last, but not least, make sure that you don’t waste the time of your jurors, lest their private lives-and not your case-occupy their thoughts. Streamline your presentations and get to the point. Jurors will appreciate your efforts to minimize their stay in the jury box.
This article is reprinted with permission from the June 5, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
