We were in the middle of jury selection for the Castillo-DuPont trial. The jury-selection process can be challenging, especially when one side objects to a potential juror that the other side would like to choose.
A “peremptory” challenge is one that is made without having to state a reason. Because the attorneys for each party may make peremptory challenges without justifying them, court rules limit the number of peremptory challenges to a handful for each side. Typically, each side is allowed three peremptory challenges in a civil case. Although no reason need be given for exercising a peremptory challenge, certain reasons (such as race) are prohibited.
Before trial, attorneys for each side may turn to certain research and survey tools to test how sympathetic the jury pool in their area would be to their client’s case.
Some lawyers hire jury consultants, who may have detailed demographic information useful in creating a strong prospective jury pool. These consultants are often trained in areas like psychology and sociology. They also frequently attend voir dire and advise the attorney who hired them during that process.
As expected, DuPont came in with a dream team of consultants to help them pick a favorable jury. I’ve used a consultant only one time in my career, and frankly didn’t find it very helpful. After all, I’m the lawyer; I’m the guy who has to win the credibility war with the jury. No one knows me better than myself. Therefore, for this trial I chose to do it the way I usually do—without consultants, relying on my gut instincts.
In some cases, attorneys use focus groups composed of randomly selected people to see how they respond to certain portions of their case. Other lawyers conduct mock trials, presenting their cases to colleagues for insight and feedback on how jurors might respond to their presentation of evidence and their closing arguments, which is what DuPont did.
Some of these tools are very expensive, which means only a party with money can take advantage of them. This is but one of the many subtle reasons that the playing field in both civil and criminal trials is not always level.
During our voir dire process, one wiseass prospective juror actually asked me, in front of all the other prospective jurors, how much money I would make on this case. For a moment I was dumbfounded. I didn’t know how to answer. I paused, hoping the judge would jump in. She didn’t. Then I simply said,
“Our contract is governed by the Florida Bar and is in accordance with their rules, and that is how we are compensated. Understand, sir, we don’t get paid a dime if we lose.”
Saying this avoided telling him that we had the right to take up to one third of what got collected on a winning jury verdict or settlement, but I thought it was more important to emphasize how much risk was involved for us, as it inferred how much we believed in our case.
After a week of voir dire, we were able to settle on six jurors and a couple of alternates out of the sixty original candidates brought in.
This was such a big case, destined to get a lot of attention, that the judge wanted to make sure we had a wide-enough selection of people to choose from. We focused on the first group of 20, figuring we’d be able to find our jurors among them. The worst-case scenario in any jury trial is to land someone who doesn’t want to be there.
Sure enough, I quickly saw that this was the situation with one of the jurors who was picked. He was a real estate agent who was bitter about being tied up in a courtroom for up to six weeks instead of being out selling homes and making money. He was very antagonistic, rude, and, frankly, not very bright.
Unfortunately, we were out of peremptory challenges, so my hands were tied. Our only chance to get him kicked off the jury would be a for-cause challenge.
The juror made it clear from the very start that he didn’t want to be there, but he never articulated it in a way that warranted ousting him. That was too bad for everyone, but mostly for us. I wish the judge had intervened and booted him off the case, as it was clear he was angry from the beginning. Judge Donner certainly had the discretion to do so.
This particular juror was too dumb to realize that if he really wanted out, he simply had to show that being there caused him hardship, and the judge would surely have let him go. Instead, the idiot sat there and watched as roughly a dozen other jurors before him got excused for cause. He just wasn’t observant enough to figure out the magic words that would have gotten him released, too.
Jurors like this never blame the defense for being there; they always blame it on the plaintiffs, because we’re the ones who filed the case. In this juror’s mind, if we hadn’t filed the case, he wouldn’t be sitting in a courtroom losing income. We did that to him. The longer a case lingers, the angrier and more frustrated someone like this juror gets. I’d seen this type of setup too many times, and I knew it wouldn’t work in our favor. If he had to sit there and bust balls, it would be mine he’d go after.
In the end, although we mostly liked the jury that was selected, we were stuck with that one bad juror, and we knew it.
In my next post, I recount the excitement of finally getting started on the case – and the anxiety that comes from counting on everyone being there, when setbacks occur.
You can find a lot more about the lead-up to and the running of this case in my book, Blindsided , from which this blog post is adapted.