What you don’t know CAN hurt you

The United States is one of a hand full of countries that trusts its citizens to self-correct by allowing a jury of their peers to sit and come to an agreement when there is a dispute between parties. It is a system that goes back to Ancient Athens 900-146 BC, when a process called “Diskastai” was used to ensure that people could not select jurors for their own trials. The bigger the issue, the larger the group of Diskatai were used. This has trickled down to the justice system that we all know and love. Now, we get that magic notice in the mail summoning us to sit in a room for 8 hours praying that we won’t get picked.

Our justice system, while not perfect and sometimes an inconvenience is something of a marvel. Having a collective of folks from our neighborhoods and communities coming together to set the standards for safety and behavior that we want is special. However, despite the fact that most folks by age 30 have been selected or summoned for jury service, they do not know a lot about how it works. Jury trials have a mystery to them that is confounding not only the lucky souls picked for duty, but also to those on either side of the issue. As a practicing trial attorney, I am often confused, confounded and alarmed at the things that we can and cannot say and do during a civil trial. It’s not something that they teach you in law school. There they build our jury system up on the foundation of justice and truth and that every person: man, woman and child is equal before the law. The most important thing we are taught is the search for the truth the search for that which is hidden. That all things in the dark will come to light. The reality however, is that there are several things you, as juror, are not allowed to know. Things that the mighty decision makers from on high, the judiciary, have decided are not worthy of your consideration. The system has begun to take for granted the intelligence of the modern juror and their ability to decipher the good, the bad and the ugly. My mother taught me that ALL information is good information and, in that vein, I share this information with you.

Insurance is the name of the game

When a person is injured in a car crash, slip and fall, or any kind of incident that results from someone else’s actions, they have the opportunity to file a civil action. That civil action, or lawsuit, is based in what we call negligence or tort. A tort is a wrongful act or infringement on the rights of another. The injured person files a claim against the person who injured and becomes a Plaintiff. By filing that suit, the legal system ensures and that this is the last time that the “wrongdoer” or Defendant is really involved. The insurance company for the Defendant tags in on the behalf and from then on they control the process. The insurance company is the one who decides if this is a case that is worth settling or not, or whether it should go to trial or not. They are the ones who assign an attorney and a random adjuster who was not involved in the actual happening of the event/tort and has never met either person involved, but still makes major decisions. The adjuster is the person who holds the purse strings, controls the money. They say what a case is worth to the insurance company and what should be paid, if anything, for the affect the injuries had on their life. They are also the people who fight the most to keep the truth away from the jury.

Often times the person who was actually sued has no say in how things proceed. It is all about protecting the insurance company’s and their bottom line. Insurance companies are in the business of making and keeping money. Insurance companies are not in the business of paying claims, as that is not how they make money and stay solvent. When the case gets to trial and a jury picked, despite the fact that the Insurance Company are the ones who provide the defense and ultimately the ones who will pay any verdict obtained, we are not permitted to tell you this. It’s a big secret, a Wizard of Oz “Pay no attention the man behind the curtain!” farce. This would not be so bad if that same man behind the curtain were not allowed to argue the point that a just verdict would financially harm or even bankrupt their client. The Defendants can talk all day about what a verdict would mean for poor old Ms. Simpson who is retired and living off of Social Security, when the reality is that she will not spend a dime on that verdict. Her insurance company will. Our justice system is set up to make you believe that the person being sued is who is paying the bill. They aren’t, and we cannot pull back that veil. There is no Toto to expose the wizard. In some local states, even when the person being sued IS an insurance company the jury is still not permitted to know who they are. In effect, they get to hide completely from Lady Justice.

Is drunk driving really a bad thing?

Let’s say that you are involved in a car collision with someone who is intoxicated. Pretty devastating huh? Pretty scary? We all know that drunk driving is not safe, and that using alcohol and/or drugs then getting behind the wheel kills thousands of people every year. Judges in MD and DC have decided that the fact that someone is drunk or high behind the wheel is NOT RELEVANT to your case. Even if you wind up injured, permanently hurt and they have been convicted of driving under the influence that fact will never see the light of day in front of a jury. As long as the Defendant says they were drunk and/or high and caused a crash, they get to hide the fact that they were drunk at trial. Despite the fact that the law says that the person suing has to show all the dangers that could happen and that the Defendant appreciated that danger, the fact that they were aware of the dangers of driving drunk is not important. In essence, we are saying that people do not have to take responsibility for their actions and can continue to put those on the road with them at risk day after day. The rationale handed down by the courts is that that fact of the Defendant driving drunk unfairly prejudices the jury against the Defendant, but should they not have to bear that prejudice? They knew the law when they chose to drink and get behind the wheel, they should have to bear all of the consequences.

They have been in how many crashes?

How many car crashes or collisions has the person who hit you been in before hitting you? Do you think this is important? Would you want a jury to know this when thinking about whether or not that person has a reason to lie, or if they should be held to a higher standard? While they can mount a pretty effective defense that you as the Plaintiff are just out looking for money because of the unfortunate events that have happened in your past, the Defendant can hide behind the curtain yet again. Did they fall asleep behind the wheel and hit a pole just 40 minutes before hitting you? Have they been convicted 10 times in the year before for reckless driving too bad so sad, the powers that be have said that prior car crashes are not relevant, even if they happened the SAME DAY as the one that you were in. This person could be Evil Kanevil on the streets and the jury will never know because the courts have deemed it “not relevant” and “not important”.

Where’s the beef?

So let us say you are injured and call the police. They talk to everyone involved and they create a report. In some situations they make a decision about who was at fault or what the circumstances are surrounding what happened. We get a copy, the Defendant gets a copy but guess who doesn’t get to see it? The Jury! This is probably the number one thing that jurors ask for. “What about the police report. Is there one? What does it say? Can we see it?” Well, yes and no. We are not allowed to talk about its very existence unless we have the cop there in trial to testify. However, here in lies the rub. The Defendant can simply say “Oh I did it, but they were not really hurt” and BOOM! You talk about the police report “not relevant”. On the other hand, let’s say that the Defendant is contesting what happened in the crash, Police officers are really really busy and notoriously hard to track down. They move around, they transfer and sometimes it’s not always in their best interest to take a day off from work to testify in a civil trial. You can admit the police report to prove observable conditions for example the weather, the condition of the road, time or place and position of the vehicle, but in a drunk driving situation is that the meat?

If you are starting notice a common theme of relevance, you are correct. The irony is, that the very people, that the justice system works so hard to keep in the dark, the jury, are the very people who are charged with deciding the facts and if something and someone should be believed or not.

So, how does this information hurt or help you? Well, it is important to know the truth. Our current justice system, while a beautiful dance of brain vs. brawn, has become a game. A cat and mouse game where The Plaintiff spend time trying to expose the truth, while The Defendant goes through great lengths to keep it from you. The Jury should know how it all works so that you know and understand your rights, should you ever unfortunately be involved in a situation where you are hurt as a result of someone else’s actions.

You should know that, no matter what they tell you, it all comes down to the insurance company. They are the ones in control, they foot the bill, and they make the hamster wheel turn. There is rarely a situation where they are not the person actually paying the bill and you should not be ok with them lying to you about it. You should not be ok with them being able to hide anything from you, whether it be a prior accident history, drunk driving or a police report. You should go in with your eyes open, whether you are a Plaintiff, Defendant or Juror.

This is not Fahrenheit 451. Our jury system works because our jurors are SMART, way smarter than they system gives them credit for. Why else would we have trusted them to make decisions, for thousands of years. Jurors are discerning and compassionate and attentive. My idea of justice, true justice, would be to lay it all out on the table things that are a benefit and harm to both sides and let jurors do what we charge them to do, figure out the truth and decide what amount if any should be allowed as compensation.

Will this always benefit the Plaintiff? No. It will however not always benefit the Defendant either. It is truly a balancing the scales of justice. And that is why most lawyers, at least the ones that I know, got into this business. The very definition of Justice is just behavior or treatment. “A concern for justice, peace, and genuine respect for people.” Webster’s Dictionary 2018. Let’s start treating our jurors with the respect of the TRUTH.

The Case for Attorney-Led Voir Dire in Maryland and DC

What is voir dire?

Voir dire, also known as “jury selection,” is a critical component of our civil justice system. In most jurisdictions throughout the country, voir dire is a process that is led by attorneys and not by judges. In fact, as recently as 2015, Massachusetts became the 40th state to allow attorney-led voir dire. Clearly the trend and the vast majority of our country allow for attorney-led voir dire. In fact, neighboring Virginia is among those states that allows for attorney-led voir dire.

However, Maryland and DC remain in the minority of jurisdictions that do not have attorney-led voir dire. At this point you may be wondering, What does that really mean? Does this really matter? Well, the simple truth is that it does matter, and it means that attorneys are being limited in their ability to actively participate in the jury selection process.

The way things typically work in Maryland and DC is that attorneys submit written questions prior to trial and the trial judge determines, in his or her own discretion, which of those questions get read to the jury. Sometimes, a few follow-up questions will be asked at the bench. Other times, potential jurors will be asked to provide their answers in front of the entire gallery. The whole process often concludes quickly, typically in less than an hour. There is little to no opportunity for attorneys to follow up with the jurors. Oftentimes, a potential juror won’t answer any questions, and the attorneys on both sides are left in the dark as to what is really on that potential juror’s mind and what their potential biases may be.

Why is attorney-led voir dire important?

So, why is this a problem? Well, people who try to stand up for their rights and go through the litigation process often have to wait at least 12-15 months or longer from the time their lawsuit is filed until the time they have their case heard in front of a jury. The right to a jury trial is guaranteed by the 7th Amendment and is a fundamental part of our civil justice system. That said, litigants deserve a fair jury of their peers. In order to get a fair jury, the individual, who has waited for their day in court in front of a jury of their peers, should have the opportunity to have some sense of who the people are who will ultimately decide their fate.

The attorney role, as it stands currently, is very limited in the jury selection process in Maryland and DC. This is problematic because it is the goal of both sides, Plaintiff and Defense, to be able to make informed decisions in their efforts to decide who to “strike” (or remove) from the jury pool. Attorneys in Maryland get four and attorneys in DC get three of what are called peremptory challenges, meaning they can exercise strikes without having to state a reason so long as those strikes are not made based on race. In Maryland and DC, attorneys are given unlimited strikes to remove a potential juror “for cause,” meaning it is clear from a juror’s answers that someone is clearly biased for one side or the other. However, with little to no opportunity for follow-up with jurors, it is very often difficult to ascertain who should really be struck for cause. To make matters worse, oftentimes there are jurors who don’t answer a single question, leaving attorneys on both sides guessing who might be a good juror and who could be problematic.

Would attorney-led voir dire make any difference? 

The short answer is yes. Attorney-led voir dire would allow for an opportunity to build a rapport with potential jurors. Attorney-led voir dire would allow for an opportunity to probe jurors’ thoughts and biases by asking follow-up questions. This is not to suggest that this process would last for weeks on end. However, it would be a more comprehensive process where attorneys and their clients would feel empowered that they have some sense of who the jurors in their community are that will be making the ultimate decision on their case. The shortcut of not allowing attorneys this opportunity for their clients is not in the clients’ best interests. It is incredibly frustrating for litigants to be patient for their day in court, only to be shortchanged by a juror whose biases they had no real opportunity to uncover.

The clear trend throughout the country is to allow for attorney-led voir dire to address some of these problems. Other states like Massachusetts tried unsuccessfully for years to obtain attorney-led voir dire. Fortunately, after years of efforts, they finally had a breakthrough. It seems like Maryland and DC are ripe to follow suit, and there would be clear benefits for attorneys on both sides of the case.

Will Maryland and DC ever allow for attorney-led voir dire? If so, when could we expect something like that to happen? The optimistic answer is yes; they will follow the trend toward attorney-led voir dire and, ideally, sooner rather than later. Unfortunately, this is unlikely to be resolved overnight. It will take a concerted and mobilized effort to show the realities and the benefits of attorney-led voir dire. However, this is not some concept pulled out of thin air, and in many jurisdictions, attorney-led voir dire exists on a daily basis.

Would there be a learning curve for many attorneys? Of course. With anything new, there always is. That said, knowing full well the potential benefits to their clients of conducting quality voir dire, it is not a stretch to think that many attorneys would work hard to hone their craft as quickly as possible. With practice and experience, the process would become seamless. There may be stylistic differences among attorneys and the leeway certain judges allow, but that would be no different than the way attorney-led voir dire is conducted throughout the entire country. At a minimum, it would be nice to see attorney-led voir dire permitted on a trial basis in the near future. This would allow skeptics to realize the value of attorney-led voir dire.

It is important that skeptics be educated on the benefits of voir dire. Allowing attorney-led voir dire is not a novel idea. It is not overly creative. It is not an aberration. Rather, it is the norm throughout the country. As mentioned above, skeptics can head over to neighboring Virginia to see how things are done and the benefits of attorney-led voir dire. With a mobilized effort and armed with data to support the benefits of attorney-led voir dire, hopefully Maryland and DC can join the trend everywhere. This is important because the biggest beneficiary will be the clients.