Selecting Jurors for High-Stakes Personal Injury Trials

Gary (name changed for privacy) was working on a building renovation in Harlem when a wheel broke off the frame of the scaffold he was using, causing him to plummet to the ground. Injuries to his ankles, knee, back and shoulder would require expensive medical treatment for the remainder of his life.

A carpenter since he was in his teens, Gary had been a member of his Local 20 Carpenter’s Union for 15 years. Because his wife suffered from mental health challenges that prevented her from working herself, his role in supporting his family had been invaluable. Now, at 45 years old, he was distressed to find himself permanently disabled from the work he had invested his entire life in, with no qualifications to start a new career.

In the final round of jury selection for Gary’s case, Block O’Toole & Murphy partners Scott Occhiogrosso and Frederick Aranki were deciding between two potential candidates for one of the last remaining spots on the jury. The first of these possible jurors came off as severe, even angry—an attitude that seemed to align well with the serious nature of Gary’s case. After questioning her, our partners felt her intensity might work to their client’s advantage.

The other potential juror was the exact opposite. While fulfilling an obligation that people rarely approach with enthusiasm, her upbeat personality stood out. Bubbly and friendly, she had laughed at our attorneys’ jokes and remained in good spirits throughout the often-tedious process of multiple jury selection rounds. It was now up to Aranki and Occhiogrosso to determine which of these very different personalities would best serve their client, who needed an excellent result to get his life back on track.

In light of injuries as life-altering as Gary’s, many attorneys would have overlooked the more cheerful juror in favor of the one whose personality suited the mood. Aranki felt differently. He was concerned that the first juror’s attitude could translate into a lack of sympathy for our client. The second juror’s open-hearted nature seemed to him to show something that Gary’s situation called for—an open mind and a willingness to listen and respond. He and Occhiogrosso even sensed compassion when speaking with her. Occhiogrosso agreed to include her on the jury.

The trial proved challenging for a number of reasons, one being the sheer length of time that our client had worked in construction. The defense attempted to downplay the accident that had changed his life by pointing to prior injuries he’d sustained on the job. Despite the rigorous defense, the jury returned a verdict of $6,080,408—over three times the defense’s initial settlement offer. The juror that Aranki had chosen was instrumental in coming to this decision, which was made within just two weeks of the trial’s start.

What shaped Aranki’s view that this was a juror the Plaintiff would want to serve on his case? While no attorney can predict with perfect certainty how such a decision will turn out, jury selection is a skill: one that trial lawyers acquire and hone through years of experience. Keep reading to discover strategies the attorneys at Block O’Toole & Murphy use when selecting a jury in high-stakes personal injury trials.

Need to Know:

• Effective jury selection in high-stakes cases depends on not only getting to know the jury pool, but making the serious nature of the case clear from the outset.
• Jurors can be eliminated from a jury pool for clearly-defined reasons in what is known as a strike for cause. Attorneys also have a limited number of preemptory strikes, which give them the opportunity to remove potential jurors without cause.
• Good jury selection demands a strong ability to communicate with a jury, particularly when the venue from which jurors are selected is less than ideal for a client’s case.

In This Article:

• Helping the Jury Pool Understand the Scope of a High-Stakes Trial
• The Fine Line of Jury Selection: Perception Without Prejudice
• Eliminating People from the Jury Pool, Explained
• The Art of Questioning the Jury Pool
• To Poison the Pool or Not?
• A Word About the Role of Venue in Jury Selection
• Beyond the Surface: Understanding Character to Shape Fair Trials

Helping the Jury Pool Understand the Scope of a High-Stakes Trial

Setting the Scene for a Courtroom Battle

In high-stakes cases, our attorneys undertake jury selection in a courtroom, or a similarly formal setting, whenever possible. Ultimately, it is the court that makes the choice of where we select a jury. If we have no choice but to use a more casual setting, we may acknowledge this fact to the jury pool (the group of people from which our jury will be selected), acknowledging the obvious informality of the venue while also making reference to a more serene and serious setting—the courtroom where the case itself will be tried.  

We don’t do this just to be polite. Setting has a powerful psychological impact. Many people come to jury duty hoping only to fulfill a legal obligation and get back to their ordinary lives as quickly as possible. Finding themselves in a bland room equipped with a few folding chairs could push them further into the mindset of not taking the case with the seriousness it deserves.

Our attorneys make a concerted effort to establish an impressive atmosphere because, when we do, we find that prospective jurors tend to rise to the occasion, taking their obligation more seriously because they appreciate the stakes involved. That is a subtle message that we endeavor to convey to prospective jurors on every case. But some cases are so pressing in nature that they speak for themselves.  

Preparing Potential Jurors for Hard Truths in Catastrophic Injury Cases

There is only so much the jury pool is permitted to know about a case before jury selection is over; knowing too much about a case in advance can even be a cause for dismissing, or striking, someone from the jury pool. Lawyers therefore cannot discuss evidence and other proofs in detail with prospective jurors. However, we can speak—in general terms—about what the case involves, and who the case involves. A good explanation is particularly critical in high-stakes cases, not only to help eliminate potential jurors who might not be able to handle distressing material, but to instill any jurors that choose to remain with a sense of the responsibility attached to that choice.

For example, in one of the largest cases we’ve handled, our client was struck by a falling railroad tie while riding his bike through a part of a construction zone he had been told was safe. Once jury selection was over, the jury would learn the details of the accident—how a worker told our client that it was safe to pass through, how the employees working above failed to check to make sure the “drop zone” was clear, and how the impact of the railroad tie fractured his spine—in the process of trial. During jury selection, it was enough for handling attorneys Daniel O’Toole and Scott Occhiogrosso to convey the stark fact of our client’s situation: that he was a healthy 23-year-old man who had become paralyzed from the waist down and would use a wheelchair for the rest of his life.

Occhiogrosso was clear with the jury pool that the case would be an emotionally demanding one, requiring any jurors that remained to unflinchingly examine a disturbing and tragic set of circumstances. The result was a purposeful and focused jury: one that was not simply fulfilling an obligation, but rising to meet a duty. That jury rendered a $110,174,972 verdict, to date the largest non-medical malpractice verdict in New York State.

The Fine Line of Jury Selection: Perception Without Prejudice

If you’ve never been a part of jury selection before, its goal may sound perplexing, even contradictory. During jury selection, your attorney must sift through the available pool of potential jurors to select a group of people who can judge your case fairly and objectively. At the same time, it is your attorney’s responsibility, to the best of his or her ability, to select jurors that will support your case.

To an experienced attorney, there’s no contradiction in this. When making judgments, human beings are informed by their personalities, their life experiences, their relationships, and any number of other factors that influence how they see the world. While some of these factors might offer them insight into a particular kind of experience, others could blind them to the reality of a situation that falls outside of their worldview.

For example, suppose a cyclist is badly injured by a car and is no longer able to ride a bike. Her attorney begins to question potential jurors and discovers that one of them also loves cycling and often cycles in the area. A person like this could be an ideal juror for the case. His experience with cycling might give him insight into the incident—and what the driver could have done to avoid it—that not every juror will have.

Just as importantly, his own love of the sport could give him a special understanding of what the accident victim is going through. After all, not everyone would be troubled if they could never ride a bicycle again—many of us prefer to drive. A good attorney seeks a jury who will approach his or her client’s injuries with the fullest possible understanding of their impact on the client. Someone to whom cycling is personally meaningful might well be the perfect audience for the case that the attorney plans to make.

However, an attorney who is skilled in jury selection won’t leave it at that. Just because two people have something in common doesn’t mean they have the same perspective—in fact, common ground may give them more opportunities for disagreement. It may be, for instance, that this particular cyclist is a stickler for safety and has a grudge against other cyclists who don’t practice what he perceives as perfectly safe behavior—a dislike which has only been hardened by his experiences on the road. This cyclist might actually be less sympathetic toward another cyclist injured on the road than your average non-biker would be.

Even if it’s clear that a potential juror might be sympathetic toward your case, a seasoned attorney will want to make sure it’s for the right reasons. Suppose this potential juror rides a bike, not because he loves cycling, but because he has a fear of driving, and shows a clear tendency to regard all drivers as unsafe. Some lawyers might fight the defense to retain this juror—after all, he’s already on the cyclist’s side! An attorney experienced in jury selection would probably hesitate.

The role of an attorney is to tell a client’s story; a juror’s job is to be attentive to that story. A juror who has already made up his or her own story—whether the story would appear to support you or not—is unlikely to be the listener you need, and such a juror’s presence could do harm to the credibility, or believability, of your case.

Eliminating People from the Jury Pool, Explained

Strikes for Cause

Good jury selection ends with picking the right jurors, but it starts with eliminating the wrong ones. Removing someone from a jury pool because of a clearly-defined factor that would impede his or her ability to judge a case is known as a strike, or a challenge, for cause.

A common factor that might lead to some individuals being stricken from a jury is their negative feelings about personal injury cases—not cases which they feel are weak upon examination, but all cases, without examination. Partner Scott Occhiogrosso once overheard a member of a jury pool telling another that she didn’t believe his client really needed a cane to walk. At this point in the proceedings, the fact that our client used a cane following her accident was virtually the only detail of the case that the jury pool had been made aware of.

In other words, without once laying eyes on the accident victim or hearing any specifics of her case, this potential juror had already made the judgment that our client was faking an injury—and she had such confidence in that judgment that she was willing to tell a complete stranger about it.

Unlike healthy skepticism, which awaits and responds to facts, prejudice—which literally means “judgment in advance”—tends to remain in place without regard for the evidence. With that in mind, it was an easy decision for Occhiogrosso to strike this potential juror from the pool: in fact, he owed it to his client to do so.

Preemptory Strikes

Since most potential jurors are reluctant to reveal prejudices and may be hesitant to openly concede that they are not well-suited for a particular case, it’s up to a skilled attorney to carefully question a jury pool to find out which of its members might not be the right fit. Theoretically, the attorneys concerned in a case are permitted an infinite number of strikes for cause. In New York State, for civil cases, each side is also permitted three preemptory strikes, otherwise known as preemptory challenges, for the initial six jurors on the panel.  If alternates are selected, each side is also entitled one strike for every two alternates that will be seated as jurors.  When an attorney uses a preemptory strike to eliminate someone from the jury pool, he or she does not need to explain the reasoning behind the choice.  

This doesn’t mean that the strike is made for no reason. While some potential jurors are straightforward—not only with attorneys, but with themselves—about feelings, attitudes, and life circumstances which would make them unsuitable to serve on a particular jury, others will claim to be able to evaluate a case impartially despite those conditions. While some may be making this claim deceptively, others are unaware of their own biases, or unconscious of the challenges of staying objective during what might be a long process.

Attorneys are allowed to use their ability to read people as a basis for decision-making in jury selection, but they can’t cite those instincts as a cause for dismissal in the absence of other evidence. Preemptory challenges mean that attorneys don’t have to take every potential juror’s word for it that he or she would be suitable for a case. For example, an attorney who notices that a potential juror seems to have a sense of resentment about jury duty may use a preemptory strike to remove that juror from the pool—even if the juror otherwise gives all the “right” answers.

Challenging Cause and Peremptory Strikes

Strikes for cause can, and will, be challenged by the defense. Even preemptory strikes can be challenged through what is known as a “Batson challenge”—that is, an allegation that the strikes were made on the basis of race, religion, sex, or a similar factor. The Batson challenge derives its name from the 1986 criminal case of Batson v. Kentucky, in which James Batson, a black man convicted of burglary, alleged that his conviction by an all-white jury had been unfair because his opponents used preemptory strikes to eliminate black people from the jury pool. He successfully appealed his conviction on that basis.

In order to raise a successful Batson challenge, an attorney alleges that the other side eliminated jurors for one of these impermissible reasons. The burden of proof then shifts to the other side, who must prove a “race-neutral” (or religion-neutral, sex-neutral, etc.) reason for eliminating the jurors that they did. For example, suppose the plaintiff’s side is accused of using preemptory challenges to deliberately eliminate Hispanic people from the jury pool. The plaintiff’s attorney must be able to provide an explanation of the reasoning behind the strikes that has nothing to do with their nationality. (For example, it may have happened that all three of these individuals had personal involvement in similar cases, but nonetheless claimed that they could judge impartially, and the attorney had reason to doubt their claims. If this was truly the case, the fact of all three being Hispanic had nothing to do with the decision, and was merely coincidental.)

A judge also plays a role in jury selection—sometimes presiding over jury selection—and that judge has the final say if the dispute around a particular juror cannot be resolved by discussion between the plaintiff and defense attorneys. The judge will hear both sides of the argument, in some cases even speaking personally to the juror whose presence is disputed, before coming to a conclusion. 

The Art of Questioning the Jury Pool

During jury selection, an attorney has several jobs to do. While questioning the jurors and listening carefully to their answers, he or she must also start to introduce context for financial decision-making around damages in the case, preparing the jurors for the conversation that will be happening in court. In Gary’s case, for example, those damages included present and future lost earnings because he had been disabled from work, as well as future medical care for the treatment he would have to undergo. Aranki and Occhiogrosso informed the jury pool that experts who could help evaluate the financial impact of these damages would be present at trial. The main thing they needed to know going in was that the damages would affect Gary financially for many years to come.

Ability to Connect with the Plaintiff

The hardest category to financially evaluate—and one with a particularly strong impact on high-stakes cases—is that of pain and suffering. No one can put a definite price tag on what a man’s ability to play with his children means to him, or what value a woman’s ability to run track adds to her life. This is where engaging with the jury pool in the right way becomes especially vital.

Every case signed by Block O’Toole & Murphy is attached to not one, but two handling attorneys. Jury selection is one of many phases of a case where this approach proves helpful. Even the sharpest attorney can’t pay perfect attention to every member of a jury pool while asking questions.

In a typical jury selection conducted by our firm, one attorney will do the bulk of the talking and questioning while the other keeps a close eye on the room to see how members of the jury pool are reacting. This allows the attorney doing the questioning to consult with his or her partner for advice on how to follow up.

Suppose one attorney is speaking to the room about the challenges our client faces in taking care of her children. The second attorney notices that a potential juror near the back of the room is leaning forward and listening intently. He and his partner later consult the questionnaire the juror filled out at the beginning of the process. They discover that he is a father of three, meaning that his reaction most likely came from a personal place. Our attorneys now have an excellent focal point for further conversation with this juror, and will be able to determine how his ability to relate to the client’s situation could impact the case.

Setting the Tone for a Fair Trial

Besides the common questions we ask potential jurors about their families, their jobs, and their everyday lives—questions which tend to open deeper conversations and give us a sense of how the juror might relate to the case—we ask questions related to specifics of the case, and personal injury cases in general, to gauge the feelings of the room.

For example, we have handled many construction accident cases on behalf of undocumented immigrants, who are especially vulnerable to labor law violations and other abuses. One way that we might approach this topic is by asking the potential jurors in the room to answer, by a show of hands, whether they believe anyone has ever been let down by the justice system because of prejudice. At this point the hands of the whole room will go up—as anyone with a basic knowledge of history knows, prejudice has often swayed a trial unfairly. At this point we can elaborate that the case we’re handling concerns an undocumented worker, and that the law decrees that he should be treated like any other injured person. We will emphasize our need to assemble a jury that will examine the details of our client’s case without concern for his citizenship status. 

To Poison the Pool or Not?

The role of an attorney is not just to question, but to start a conversation in the room. In many cases, this will cause a potential juror to bring up a strong feeling or life circumstance which we realize could impact the case.

Every good attorney has his or her own preferred approach to the conversation that follows. Many attorneys prefer to take the potential juror to a hallway or adjoining room to discuss the subject in more depth. Some attorneys who favor this approach feel that they get more honest responses from the potential juror if the rest of the jury pool is not present. Others are more concerned, not about the influence of the pool on one person, but the potential influence of one person on the pool. They don’t want to “poison” the pool before a trial by talking about—for instance—fraudulent court cases, specific instances of accidents that members of the jury pool have been in, or the reasoning behind prejudices that a person may hold.

Other attorneys, however, prefer to keep the juror in the room, encouraging any conversation that his or her statements might start—even the negative ones. If, for instance, a potential juror is prejudiced, creating an environment where he or she can speak freely about it may reveal similar prejudices in other members of the jury pool, giving attorneys a better sense of whose presence in the pool should be challenged. Conversely, another juror might argue with the person being questioned, revealing his or her own sensibilities. Different attorneys use different tactics, but their end goal is the same: to get a sense of how potential jurors might behave during trial, and whether they’re capable of judging a client’s case without unfair bias.   

A Word About the Role of Venue in Jury Selection

Venue—meaning the judicial district in which a case is tried, and from which the jury is selected—has the power to significantly impact how a case plays out. This is especially noticeable in heavily-populated areas like New York City, where the distance between a few city blocks could mean serious differences in culture and politics.

Venue was among the challenges that our attorneys dealt with when they were handling Gary’s case. Gary was a blue-collar native of Staten Island, the most heavily Republican and conservative of the city’s five boroughs. His case was tried in Manhattan, the most wealthy, white-collar, and progressive.

Aranki and Occhiogrosso understood that many of Gary’s sensibilities clashed with those that were typical of the venue. For example, during his deposition—answering questions about how his injuries had interfered with the activities he enjoyed—he had expressed regret that he could no longer hunt. A hobby that he shared with many others in his own hometown risked making him unrelatable, even unsympathetic, to a Manhattan jury.

You can’t eliminate the characteristics of a venue from a jury pool, nor can you take your client’s personality from the equation—not without running the risk of surprising the jury at trial. (After all, we had to make sure the jury didn’t include anyone with strong negative feelings toward hobbyist hunters.)

When selecting a jury in a venue that might not be ideal for our client, our attorneys serve as translators. They work to convey the universal emotions, needs, and desires that their client might share with the jury pool.

When explaining Gary’s situation, Occhiogrosso spoke to potential jurors about their own hobbies. He asked them how they would feel if their ability to do those activities was taken away from them. In the end, it didn’t matter that many of their hobbies—such as dancing and playing tennis—didn’t resemble Gary’s. What mattered was that they had a strong sense of the quality of life that Gary lost in his accident, and what losing it meant to him.

Beyond the Surface: Understanding Character to Shape Fair Trials

No one type of personality is more likely to judge a case fairly than another. Our attorneys have achieved excellent results with juries from many different circumstances and walks of life. However, a pattern that we have found across our cases—one well-illustrated by the juror in Gary’s case—is that a good-natured personality is a strong predictor of ability to take on a case with the clarity and empathy that our clients in high-stakes injury cases need.

It can prove helpful in other unexpected ways as well. Robert Liciaga—our client who was paralyzed from the waist down by a falling railroad tie—was a young man with a stoic nature. He rarely became visibly emotional, even when talking about the worst of the suffering he had endured. His levelheaded response to a traumatic situation was admirable, but we were concerned that the true severity of his situation might not come through to observers when he was testifying at trial.

During the trial, attorney Scott Occhiogrosso asked Robert what the most difficult consequence of the accident had been for him. Struggling to find the words, Robert took a glance at the jury box, where a member of the jury gave him an encouraging smile. No one had told her to do this, but it was an expression of the personality that had led us to include her on the jury: a combination of a steady and calm disposition with a willingness to sympathize with others. Her understated reaction met Robert in such a powerful way that, for the first time since we began handling his case, we saw him break down and cry. That juror’s simple kindness revealed a side of our client that the rest of the courtroom might not otherwise have seen.

This is not to discount the importance of passionate and intense personalities in many trial cases, but to recognize that it’s important to know where any passion is coming from. Some people in our jury pools are strongly committed to achieving justice, and that conviction emerges when we interview them more closely.

Others, however, are merely angry—and if the defense manages to turn that anger on our client, it could be detrimental to the case. We have learned that those with quieter natures should never be underestimated, since many calm and kind personalities hide the strength and substance that our most seriously-affected clients need.  There are as many personalities as there are potential jurors, and while all of our attorneys draw from years of trial experience, we strive to approach the jury pool with the same absence of prejudice we expect from our best jurors. 

If you or a loved one has been injured in a serious accident, the attorneys at Block O’Toole & Murphy are here to help. We serve all five boroughs of New York City as well as the entirety of New York State. Contact us to receive a free legal consultation by calling 212-736-5300, or by filling out our online contact form.