Jury selection in connective tissue injury cases: think of voir dire as a conversation with the people who will decide the outcome of your client's case. Make the most of this opportunity to discover what they really think about connective tissue claims.

Car wreck lawsuits, especially those involving connective tissue injuries, are hard cases. Many jurors are skeptical that the plaintiff's claimed injuries are real, and even when they believe that a plaintiff was hurt, they may be reluctant to render adequate compensation because they worry that doing so will raise their insurance premiums. However, these cases can be won, and the first step to a substantial verdict is a good voir dire.

Why? Because voir dire is your only opportunity to have a conversation with jurors about the case. During voir dire, you can identify the more-vocal jurors who hold antiplaintiff attitudes, and you can use sympathetic jurors to "teach" the rest of the panel. An effective voir dire will begin the process of forming a group, with you as its leader. It will also show that you are an honest, trustworthy person who tells the truth about your client's case.

Elements of a successful voir dire

Introduce yourself. Always start jury selection by introducing yourself and your client. Stand close to your client when you do this. Put your hand on his or her shoulder and tell the jury that you are proud to represent the person.

Do not tell the jurors that you are conducting voir dire, or that "voir dire" is French for "to speak the truth." Starting out with legal terms dehumanizes you. Instead, prepare the jurors to share their thoughts and feelings by revealing your own. Take a second to be silent. How do you feel? Nervous? Concerned for your client? Are your hands shaking?

Sharing your feelings with potential jurors shows them that you are human and do not consider yourself better than them. It also helps potential jurors to share their own feelings.

You need to let jurors know why you feel the way you do, balancing honesty with projecting your belief in the justness and strength of the case. For example, you might say,

   I am nervous because I do not know if I am
   good enough to get Juanita justice in this case.
   This wreck has broken her forever; she will
   experience pain every day until the day she
   dies, and that puts a lot of responsibility on my
   shoulders. Even though I've worked for over a
   year on this case, I'm afraid I might not do a
   good enough job in showing you how this
   wreck has affected her.

A confession like this, if sincere, humanizes you and adds to your credibility.

Explain "bias" and "prejudice." In most jurisdictions, a juror may be struck for cause if he or she has a bias or prejudice on an issue relevant to the case. To most people, the word "prejudice" has a connotation much worse than simply prejudging an issue in a lawsuit: To be prejudiced is to be a bigot, which generally is unacceptable in our society. Therefore, it is important for jurors to understand that in the courtroom, the words "bias" and "prejudice" simply mean that a person has beliefs that make him or her lean one way or another in a case.

Potential jurors are more likely to share their biases if you begin by revealing your own. While it is important to be honest, be careful not to alienate the panel. Here's an example:

   We all have biases and prejudices. That's
   because we have all had a life before we walked
   into this courtroom. The experiences we've
   had and the things we've heard and read affect
   how we perceive things, how we make decisions.
   And there is nothing wrong with that. It
   means we're human. But when we have
   thoughts and feelings that can affect how we
   might decide a case, it is important to share
   them. Having a bias or prejudice does not
   mean that you are a bad person or that you will
   make a bad juror, but it may mean that you
   would be a better juror on another case.

      Let me give you an example. I have a bias
   against landlords. I know it's wrong, but I have
   felt that way ever since I was in college. You
   see, my roommates and I had to pay a deposit
   on an apartment, and when we moved out, our
   landlord would not give it back. We left the
   place in good condition, but I actually had to
   go to court and fight the landlord to get my
   deposit back. Now, I know that most landlords
   are good, honest people, but I could not be on
   a jury in a landlord-tenant dispute because my
   experiences would make me biased in favor of
   the tenant.

After sharing your own biases, you can begin to ask the jurors about their thoughts and feelings regarding the case.

Identify the topics that are most important to cover. Before beginning voir dire, thoughtfully plan which issues you are going to discuss.

To choose your topics, make a list of juror attitudes that might hurt your case--for example, "People don't believe in giving money for pain and suffering," "If I ask for enough money, the jury will think I'm greedy," or "My client looks fine, so the jury won't believe she's hurt," and so on. Although many connective tissue cases involve the same problematic issues, you should rank them in order of importance to your particular case. If the judge will limit your time to 20-30 minutes, you may be able to address only the two or three most important topics.

Choose your words carefully. When questioning the panel, be sure to use open-ended questions. Phrase them so as not to discourage jurors from sharing their feelings.

Consider this phrasing: "The law says that my client is entitled to damages for pain and suffering. Is there anyone here who won't follow the law and award pain-and-suffering damages if the evidence proves them?" Jurors will believe that the only acceptable answer to this question is, "I will follow the law." A juror who does not believe in pain-and-suffering damages will have to tell you that he or she plans to break the law in order to share that bias with you.

Instead, encourage jurors to open up. For example,

   One of the things we are asking for is money
   damages for pain and suffering. Not just the
   medical bills, not just the lost wages, but compensation
   for the pain that Juanita has suffered
   since the wreck. I know some people don't
   believe that we should give money for pain and
   suffering. My mother-in-law is one of them.
   She has no problem with awarding money to
   cover bills and wages, but she does not believe
   that we should give money for pain.

      There is nothing wrong with feeling this
   way. We all have the right to our own opinions,
   but in order to have a fair trial we need to share
   them with each other. Do any of you have any
   thoughts or feelings about giving money for
   pain and suffering?

Question individual jurors. People are often reluctant to speak first when you direct a question to the group in general. Also, a few extroverted jurors will often dominate the conversation unless you make an effort to talk to the less assertive ones.

Start by speaking to the jurors who you think will be biased against your client. Your judgment may be based on demographics (for example, a wealthy corporate executive may be less likely to award pain-and-suffering damages than a union activist) or on cues you have picked up during voir dire. A potential juror's body language, facial expressions, and eye contact (or the lack of it) can offer clues about possible biases.

Rewarding openness can encourage other jurors to be forthcoming. When jurors answer honestly, thank them sincerely, especially when they tell you what you do not want to hear. Every revelation of a bias or prejudice creates an opportunity for you to discuss the issue before jury deliberations. More important, the statement may allow you to strike the juror for cause.

Echo jurors' responses, when a juror reveals attitudes that are adverse to your case, you can lay the foundation for a challenge for cause by echoing the juror's own words. Most jurisdictions' requirements for a challenge involve showing a bias, so try to get the witness to admit to one.

For example, a potential juror might tell you, "I don't have a problem with giving money for medical bills, but all this pain-and-suffering stuff is just out of hand. I have pain in my life, but I don't see anyone giving me money."

You might respond, "Thank you for sharing that. It sounds to me like you have some pretty strong opinions against giving money for pain and suffering. Wouldn't you agree that you have some bias against giving money damages for pain and suffering?"

Another effective technique is called "looping," in which you use the more sympathetic jurors to educate the rest of the panel. After you receive an unfavorable answer from one juror, turn to another you think might be more helpful. Ask that juror about what the first one said, preferably using the first juror's exact words. Then move to other jurors and get a discussion going.

The following is an example of looping; the issue is a delay in the onset of the plaintiffs pain after a collision.

      Q: Juanita's pain did not start right away.
   Right after the wreck she was scared, she was
   stiff, but she did not yet hurt. She told the
   police officer and the defendant that she was
   OK. But that night, when she got home, she
   began to get sore. The next morning, she hurt
   badly, and the pain has continued to this day.
   What worries me is that, because she did not
   feel any pain right after the wreck, you won't
   believe that she was really hurt.

      Mr. Smith, what do you think about the fact
   that Juanita told everyone at the scene of the
   wreck that she was OK?

      Mr. Smith: Well, I think if she was hurt, she
   would have felt it right away. I broke my arm
   once in a car wreck, and I felt it then and there.

      Q: Thank you, Mr. Smith. I appreciate your
   honesty. Mrs. Jones, I noticed you shook your
   head when Mr. Smith said that if Juanita was
   hurt, she would have felt it right away. What
   do you think about that?

      Mrs. Jones: I have to disagree. My son was
   in a car wreck, and he felt fine right afterwards.
   It wasn't until two days later that he really
   started feeling the pain.

      Q: I'm sorry to hear that. How is he doing
   now?

      Mrs. Jones: He still gets pain.

      Q: Mr. Smith, you heard Mrs. Jones tell us
   that after her son was in a car wreck, he felt fine
   right afterwards, and it wasn't until two days
   later that he really started feeling the pain.

      Mr. Smith: Well, that may be, but I still
   think that, for you to prove to me that the pain
   was from the accident, your client would have
   to feel pain right away.

      Q: Thank you. Mr. Gonzalez, we've heard
   Mr. Smith say that, in order for him to believe
   that Juanita was hurt in a car wreck, we would
   have to prove that there was pain right away.
   But Mrs. Jones told us that her son was in a car
   wreck and did not feel the pain for two days.
   What do you think about the fact that Juanita
   did not feel pain right away?

This technique has several important advantages. First, by repeating a juror's words almost verbatim, you show that you heard and respect what he or she said. Second, by not arguing with the juror, you avoid creating tension between you and the panel. Third, using sympathetic jurors to educate others about your issues is far more effective than arguing with the jurors yourself.

Trouble spots

Besides delayed onset of pain and juror bias against awarding pain-and-suffering damages, several other sensitive subjects present challenges in connective tissue cases. Using effective voir dire techniques will help you confront them head-on.

The collision involved minor impact and caused minimal property damage. Many jurors simply refuse to accept that collisions with little or no damage to the vehicles injure people. Those who believe injury is possible in such cases will usually be people who were injured, or have a friend or relative who was injured, in a low-speed collision. Using looping, you can set up a dialogue between the two groups of jurors. The defense will strike those who believe your client could have been injured; you will strike the jurors who believe injury was impossible. The discussion will educate the rest of the panel, some of whom will end up on the jury, and prompt many undecided jurors to keep an open mind about the issue.

The plaintiff was treated by a chiropractor, not a medical doctor. The average chiropractor knows more about the human back and neck than the average physician. A chiropractor spends three years in chiropractic college focusing on these areas, and his or her practice focuses almost exclusively on back and neck injuries. The average family practitioner or internal medicine physician has had only a three-month rotation in orthopedics and a one-semester trauma course dealing with far more than neck and back injuries.

Nevertheless, some jurors regard chiropractors as "quacks" and will discount their testimony. Some also believe that a person treated by a chiropractor was not truly injured. Use jurors whom chiropractors have helped to teach others that these practitioners are "real doctors" who treat neck and back injuries effectively.

The plaintiff did not seek immediate medical treatment. Often, people who sustain connective tissue injuries take over-the-counter painkillers, get some rest, and hope the pain will subside. After a week or two, when they realize that the injury will not go away on its own, they see a doctor.

Defense lawyers will attempt to capitalize on this delay, pointing out that the plaintiff did not ask for an ambulance, did not go to the emergency room, and did not seek any treatment whatsoever until two weeks after the wreck. They will often imply that the plaintiff belatedly saw a doctor only because he or she first saw an attorney and decided to build a case.

The key to winning such cases is to find jurors who will see your client as a strong person--someone who first tried to live with the pain and saw a doctor only when the pain would not go away. For example:

      Q: The morning after the wreck, John woke
   up with soreness in the back of his neck. It'll go
   away, he thought. The next day, the pain was
   worse. He took some Advil. The pain continued
   for days, which turned into weeks. Each day,
   his wife, Susan, told him to see their doctor, but
   he said, "No, it'll go away. I'll go tomorrow if it
   doesn't." Finally, when the pain didn't go away
   after three weeks, he saw his family doctor.

      Some of you might not believe that John
   was hurt in the wreck because he didn't go to
   the doctor until three weeks later. What do you
   think, Mr. Nguyen? Do you think John could
   have been hurt in the wreck when he didn't see
   a doctor until three weeks later?

      Mr. Nguyen: I'm not sure. If he was seriously
   hurt, he should have gone to the hospital
   sooner, but I guess he could have waited.

      Q: Thank you. Let me ask another way:
   Does anyone know someone who was hurt or
   sick but waited a long time to go to the doctor?

      [A few hands go up].

      Q: Yes, Mrs. Rivera. What experience did
   you have?

      Mrs. Rivera: Well, my husband had stomach
   pain for a long time, but he just wouldn't
   go to the doctor. I kept telling him to go, but
   he waited months before he finally went.

      Q: And what was wrong?

      Mrs. Rivera: He had an infection so bad
   they had to remove part of his intestines.

      Q: That's terrible. How did the doctors do?

      Mrs. Rivera: He got better, but it was scary.

      Q: I'm sorry you went through that. I guess
   you can understand how John could have gone
   three weeks before seeing a doctor?

      Mrs. Rivera: Yes, I can understand that.

      Q: Mr. Nguyen, what do you think about
   what Mrs. Rivera said?

      Mr. Nguyen: Well, I guess people sometimes
   don't go to the doctor right away. I'd just
   have to hear the evidence to decide whether he
   was really hurt in the wreck.

      Q: What kind of evidence would you want
   to hear?

      Mr. Nguyen: Whether he missed work,
   whether other people noticed him in pain, that
   kind of thing.

Such an exchange prepares the jury to accept evidence of injury other than medical treatment, to listen to witnesses who saw the plaintiff in pain, to consider the plaintiff's absence from work, and so on.

Jurors think their insurance rates will increase if they award damages. One goal of the tort "reform" movement has been to convince people that if jurors award damages, everyone will end up paying for those awards through higher insurance premiums. Jurors who believe this will poison the panel, so make every effort to identify and eliminate them. Resist your instinct to argue with them; you're not likely to change their minds. Worse, arguing with a juror who reveals this bias makes others who agree less likely to identify themselves.

To avoid these problems, say, "I think some of you might hesitate to award money damages to my client because you are afraid your own insurance premiums will go up. Does anyone think lawsuit awards make insurance costs rise?" Once you have identified the hostile jurors, you may want to try to establish challenges for cause.

Although connective tissue injury cases are challenging, they can be won. These voir dire techniques will help you take the first step toward obtaining justice for your injured clients.

Michael R. Cowen practices law in Brownsville, Texas.