It takes between one and four years on average from the date an injury lawsuit is filed in New York to the date of trial – when six people you never knew, people who never wanted to know you, people who likely resent having been chosen for your jury, will sit for days or weeks in a courtroom jury box, listen begrudgingly to your case and then render a verdict.
Many lawyers and their clients forget that it’s the jurors at trial who will ultimately determine the outcome of an injury case and I always let new clients know this and then they ask: how are the jurors selected?
Here’s how. In New York, the names of potential jurors are selected at random from the following lists:
- voter registration
- utility subscriptions
- licensed drivers
- motor vehicle owners
- state and local taxpayers
- family and medical assistance recipients and applicants
- unemployment benefits recipients
And no one is exempt. Until a 1995 law took effect in New York, lawyers, doctors, teachers, clergy and other professionals were exempt from jury service . No longer.
- Many lawyers representing plaintiffs in injury cases have found that this "everybody serves" policy has resulted in a more conservative jury pool with more defense verdicts and stingier plaintiff damage awards.
The jury selection process begins when county personnel mail out a notice requiring attendance at the courthouse. Upon arrival, the potential jurors are given introductory material and talks and then sent in groups of 20-30 into a room to meet and be questioned by the lawyers on a case. A judge may be present too. This begins the so called voir dire process (referring to a Latin term meaning to give a true verdict).
The questioning starts with general questions to the entire group to see if anyone has knowledge of the subject matter, the case, the parties, the lawyers or the witnesses. If so, they may be dismissed "for cause" as will anyone related to the parties, employed by them or employed by a liability insurance company.
Then, armed with personal information from questionnaires filled out by each prospective juror, the attorneys will ask probing, intrusive, personal and sometimes embarrassing questions about biases, preconceptions, attitudes towards injury lawsuits and willingness to award large damage verdicts.The lawyers will often tell the jurors that they are simply looking for open-minded fair people – baloney! They’re looking for jurors who will identify with their clients and who have attitudes favorable to their case. Anne Reed, a nationally renowned trial lawyer and jury consultant, says that lawyers are asking: Will this juror like me, my client and my important witnesses?
Here are some of the typical questions potential jurors are asked in injury cases:
- Have you or any family member ever been injured, made a claim and if so was it resolved to your satisfaction?
- Do you think there are too many injury lawsuits?
- Do you think some cases do not belong in court [the McDonald’s "hot coffee" case is regularly brought up]?
- Do you think there should be a limit to the amount a plaintiff should get for his pain and suffering?
The person being grilled with these questions is often very uncomfortable and may exercise a right to be questioned outside the room, privately. The issue of juror privacy is controversial – some, such as Walter Olson at Overlawyered, suggest that the lawyers questioning prospective jurors are too intrusive and that their probing questions should be limited.
Under court rules in New York, there’s no limit to the number of prospective jurors that lawyers may dismiss (with the judge’s OK) if there is "cause." After that, though, each lawyer has only three so called "peremptory challenges." They can be used to dismiss anyone for any reason at all and are very carefully used by the lawyers to keep off the jury anyone the lawyer thinks will be opposed to his client or his position on liability or damages.
The six jurors left who have not been excused constitute your jury.