I missed my weekly brushstrokes because I was in my first jury trial since Covid. It was a very hard case on liability. There was a significant chance of a defense verdict. Our client suffered a TBI and couldn’t tell us why he suddenly stopped or slowed way down in the left lane of a highway with a speed limit of 70 mph. We had to present a circumstantial evidence case that he must have had mechanical failure. A tractor-trailer plowed into him. An eyewitness made it sound like the trucker couldn’t have done anything to avoid the crash. Our position was the truck changed lanes suddenly because he didn’t want to slow down and was following too close, otherwise he wouldn’t have crushed our client’s car in distress.
This was an ultra-conservative venue in Mississippi. I was told by all the locals you better settle, you can’t get a good verdict here. They said almost all the verdicts were for the defense or for lowball amounts. I fully expected to level the playing field with my voir dire systems that are so effective at establishing challenges for cause under the law of the jurisdiction. I was well on my way when eleven prospective jurors acknowledged biases on the record. Each of them readily admitted that they could not assure the court they could be completely fair and impartial because of their biases and could not lay those biases aside. Most of them said this on multiple grounds, including bias against: personal injury suits, pain and suffering damages, or large damages, and because they had truck drivers in their family. Right before I sat down, all of them confirmed that they understood my questions, there was no confusion, they did not want to change their answers, and the statements they made as to bias were their final answers. The defense did the usual rehab, you’ll listen to the evidence and return a fair verdict. There was nothing special about the otherwise uneventful rehab stab, until it was time for the judge to rule. He proceeded to deny all eleven challenges for cause without hesitation. I’ve had a few denied before, but not all of them! We only had four peremptory challenges which I used to excuse the worst ones. We were left with several jurors who had clearly admitted to being biased for truckers because of family members who were truckers.
To make matters worse, we were suing a well-known local construction company. Our client was an African American gentleman who was from out of town. Add to that concerns we all have about Covid making jurors calloused. Plus, Mississippi has a million-dollar cap on pain and suffering, putting a damper on things to start with. We had what appeared to be a perfect storm.
Here is the good news. The jury returned a verdict for 5M with 50% comparative. I am convinced the verdict would have been larger had my cause challenges been granted. Even so, we got what I was told was the largest verdict ever in that county where fault was contested. There was one larger verdict where liability was admitted and there was a huge life care plan. Whenever there is a liability fight, I worry that fight will bleed over into damages.
The encouraging message is that empathy is alive and well. When our fellow countrymen and women sit in judgment in American courtrooms they are inclined to rise to the challenge, even in times of extreme hardship and division. Here are a few more things I’d like to share.
About half of those summoned showed up. About half of them were let go for hardship, but that was for typical hardship, not Covid specific. People showed up and did their duty.
I chose not to ask any Covid specific questions during jury selection because I had an extensive list of bias questions to cover and limited time to work with. Given the result, I feel a lot better about not having to design new voir dire questions to deal with another obstacle to justice.
One thing I did do specific to the pandemic was use terms like: sudden isolation, loss of independence, loss of freedom to live life normally, feelings of helplessness with no end in sight. The purpose was to build a bridge between our client’s suffering and the universal suffering caused by Covid. I distinguished the virus, for which there is no compensation, by pointing out what was taken from our client was not from forces beyond anyone’s control, it was from someone driving dangerously on the road, which could have been prevented had he done his job right. I did not mention Coronavirus directly. Connections were made naturally.
I was forced to come up with ways to deal with the pro-trucker bias. I made it clear truckers provide an essential service to our country and the vast majority of them are very safe drivers. This case was about one truck driver who chose to drive dangerously.
Another suggestion is to use social media searches. After the jury was seated, we found a picture reposted by one of the jurors who had admitted to me in voir dire that he had a pro trucker bias because family members were truckers. It showed a truck crushing a car with the caption, the spaces truckers leave is not for your convenience, it is for our safety. The repost was in a hard to find place, so we did not find it in time to show the judge during voir dire. Besides, that person had already given answers that I fully expected would result in him being removed for cause, so there was no need to keep digging on him. We used the picture right before closing to try to get the judge to excuse the juror and replace him with an alternate. We argued the two-year old repost further confirmed his bias and showed it had been there for years. The judge denied our request. Nonetheless, the background search was worth it. I argued in closing that safe truck drivers leave space to protect themselves, but the driver in our case left no such cushion to prevent crashes, you couldn’t fit a moped in between him and the car in front. I watched the juror in question unfold his arms as I made that distinction. Without the search, I would not have known to make such an argument. I believe my strategic comment took the wind out of his sails as an adverse juror and helped pave the way for other jurors to usher in a fair result.
That trial went a long way to easing my concerns about jury trials in the time of Covid. We can still get enough jurors and we can still get justice.