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In Jury Selection, Can I Get Rid of Jurors If I Don't Like Them?

The short answer is yes.

The long answer is that jury selection is not really jury selection.

The words"jury selection" give you the sense that lawyers go into a room and actually choose jurors we want on the jury.

Nothing could be further from the truth.

Jury selection should really be called jury de-selection.

Let me give you a great example.

Let's go back to your elementary school days.

Remember during recess you'd play a game and you'd have to pick teams?

You'd have two captains who would get to pick the 'best' players first.

Then after the 'best athletic kids' were picked first, you'd have a bunch of kids left over.

Some were good.

Some were ok.

Some were terrible.

Yet, everyone got picked for a team.

But being picked last sucked.

It was demoralizing.

It made you feel like crap.

Everybody knew you weren't that good, but they needed a someone to make the teams even.

When picking teams in grade school, you were often picked by your athletic ability or how cool you were.

Jury selection is nothing like that.

Lawyers don't go into a room full of strangers from the community and look at a piece of paper and say "I want Jim, Jane and John. They're they best jurors here. You can have the leftovers."

It doesn't work that way.

Jurors are not chosen by their athletic ability.

Jurors are not chosen by their profession or the work they do.

Jurors are not chosen by their age or whether they're a boy or girl.

Jurors are not chosen by their prior jury service.

However, jurors are chosen based on their life's experience.

Jurors are chosen based on their opinions and beliefs.

Here's a secret that's not often shared with potential jurors...

There's really only one way to be chosen as a juror in a civil lawsuit here in New York.

That is if you're left on the jury after the attorneys have finished removing those people whom they don't like.

Yes, I've said it.

You don't often hear lawyers talk about this.

If you're left on the jury panel after other jurors have been removed, you will be part of the jury that sits in judgment to decide this case.

It's almost as if you get picked by default.

Jury selection is really a misnomer.

It's not the correct term for what we do during the jury process.

We don't select those jurors we like.

Instead, we remove those jurors whom we don't like.

Whoever is left over, sits on the jury.

You see, each attorney gets to remove a certain number of jurors.

I can remove three jurors for any reason.

If I choose to remove any three jurors, I simply whip out my "Remove this juror" card and away they go, back to the jury room.

I don't have to tell anyone why I removed this juror either.

How cool is that?

I don't like juror #3.

"Mr. Smith, you are juror #3. You are excused. Please return back to the main jury room. Thank you. Please take your jury card with you."

I don't like juror # 6 either.

"Ms. Goody-Two-Shoes, you are excused from this case. Have a nice day and thank you."

I've got one more "Remove this juror" card I can use now.

The next two people who take the place of those I just sent back to the jury room aren't great for my case either.

I'd love to excuse both of them.

I've got a problem.

I only have one more "Remove this juror" card to use.

I choose to use it on Juror #6.

"Mr. Cranky, thank you for your answers. You are excused. Thank you."

Now, my problem is real.

I've got juror #3 whom I really don't like.

She doesn't like me.

She doesn't believe that injured people have a right to bring lawsuits.

She doesn't care who was careless or what injuries they received.

She doesn't believe in our system of justice.

My opponent loves her.

He'd do anything to keep her on this jury.

He's probably salivating right now hearing her say these outrageous things.

What option do I have now to remove this poisonous juror?

Since I no longer have any "Remove this juror" cards left (they're not really called that, but you get the idea), I now have to ask my adversary if he'll consent to remove this juror.

What do you think he'll say?

He wants to desperately keep this juror.

I need to get her off the jury panel.

He's not going to consent, but I have to ask him anyway.

He laughs at me, knowing my predicament.

He's not going to help me.

Fine. Don't help me.

I'm going to enlist the Judge for help.

We notify the jury clerk we have a problem and need to see the Judge.

The judge controls jury selection.

You see, there is no Judge present during jury selection.

Just the attorneys and a room full of strangers who have been called in for jury duty.

When we go before the Judge he'll ask "What's the problem?"

"Judge, I have a juror who tells me she doesn't agree with our system of justice. She says that my client doesn't have the right to bring a lawsuit and seek money damages," I say.

The defense lawyer chimes and and says "Yes, Judge, that's what she said, but when I asked her if she can still be fair and impartial, she said yes." 

I can see my opposing attorney smiling with glee at my predicament.

The judge asks a few more questions about this potential juror.

He clearly gets the sense that she cannot be fair and impartial and immediately orders that she be excused 'for cause'.

My adversary is no longer smiling.

As we head back to the jury room, I'm smiling inside.

I accomplished my objective to get this poisonous juror off our panel.

This process continues until each side has exhaused our "Remove this juror" cards and the judge refuses to remove any other juror 'for cause'.

Whoever is left on the jury panel becomes the jury who will decide our case.

To recap, jurors are only selected if they remain in their seats after all other jurors have been removed by the lawyers who did not like them.

That's what I meant when I said this process should be called jury de-selection.

Not a single juror is ever chosen by an attorney who says "I want jurors #1, 4 and 6 to sit on this case.

Instead, an attorney will say "I'm removing jurors #2, 3 and 5. Who are you taking off?"

Then those seats get filled with jurors from the back of the room and we go through the question and answer process all over again.

You might be wondering how an attorney knows whether a juror is good or bad for their case.

Good question.

A few different ways...

A potential juror says something in response to a question I ask that sets off warning bells.

"I don't care what you or the judge says, you don't bring a lawsuit for any reason..."

"I think all doctors are liars," one juror blurts out.

"I don't think anyone deserves millions of dollars. Look at me. I got hurt and got nothing."

These comments are poisonous.

I have to address these comments head on.

I have to let that person know that despite their beliefs, the law allows an injured patient to bring a lawsuit.

I have to let the other jurors in the back of the room know that their comments are not acceptable in order to be selected as a juror.

"Maam, you have every right to believe that all doctors are liars. However, in this case, my client has sued only one doctor. It's our claim that at a particular date and time he was careless. My adversary will rightfully be concerned that you think every doctor is a liar. Can you be open to the possibility that not every doctor is a liar or that not every doctor is a liar at all times?"

The way a juror answers a question gives me an idea if they are a good juror.

Another way is body language.

Are their arms folded with a scowl on their face when I'm talking?

Are they relaxed and smiling?

What book are they reading here in court?

What hobbies do they have?

What experience have they had with this medical issue?

There might be something personal a juror tells us outside, away from the other jurors.

"Listen, my sister is going through this now and there's no way I can be fair here."

"I've been to this doctor and let me tell you what I really think of him...your injured client should get every penny she's seeking."

Other times attorneys must rely on their gut instinct, often called a gestalt.

What is your visceral reaction to this person and their beliefs?

The inherent problem with picking jurors this way is that it's unpredictable.

You don't know whether a juror is telling the truth.

You don't know whether a juror is just saying what you want to hear.

Jurors are not hooked up to lie detectors when being picked for jury service.

Now that I've answered the question about getting rid of jurors if I don't like them, let me share with you the mechanics of how jury duty actually works...

 

When you are called for jury duty, you get the dreaded summons in the mail commanding you to appear in court on a certain date, at a certain time.

Once you check in, you're told to hurry up and wait in a big room commonly known as the jury room.

While you are there, you will see lots of other jurors reading, using their laptops and being on their smart phones waiting to be called.

They're all waiting for the opportunity to perform their civic duty and sit in judgment.

These are all civil cases.

Cases involving accident matters. 

Cases involving improper medical care resulting in harm.

Cases involving accidents and medical malpractice resulting in death.

In these civil lawsuits, an injured victim seeks money as a form of compensation.

Money to pay for the harm.

Money for their injuries.

For all their losses.

For their pain.

At some point during your jury duty, you will be called into a room along with twenty five other strangers.

People from the community.

People from all walks of life.

You will wonder what you're doing in this small, often windowless room.

Here's what you'll observe...

The jury clerk will walk into this small jury room with a stack of cards.

Each of those cards has one name on it.

The name of every juror called from the big jury room.

The clerk will hand those cards to one of the lawyers standing in the front of the room.

The jury clerk will leave.

The lawyer with the stack of cards will walk over to a table with a round drum on it.

The drum has a handle to rotate it.

The attorney will open a door on the drum and drop in all those cards with your names on them.

He will close the door and then begin to turn the handle.

He will rotate the drum a few times to allow the cards to get mixed up.

When he stops, he'll open the drum door and reach in and randomly select six of those cards.

Those six people will be asked to come to the front of the room.

They'll be asked to sit in the first six seats.

These are the 'hot seats'.

These are the jurors who will be questioned first.

The other jurors will be asked to pay attention as their turn will come when they will also be called up to sit in the hot seat.

I often think of jury selection as if you are applying for a job.

Even though you did not volunteer to be a juror, you are there to fulfill your civic obligation.

When you arrive for jury duty, you'll be asked to fill out a questionnaire.

It's not for the court.

Instead, it's to hand to the attorneys when you walk into the small jury room.

It's to help the attorneys understand who you are and what you do.

It's supposed to reduce the time attorneys spend asking you questions.

When you are sitting in the hot seats, the answers you give help the lawyers understand whether this is the right type of case for you to sit on.

Once six people are randomly chosen to sit in the front, I will then introduce myself.

"Ladies and gentlemen, welcome. My name is Gerry Oginski. I have the privilege of representing Mrs. Jones in this lawsuit that she brought against Dr. Clumsy Hands. Dr. Clumsy Hands is represented by attorney Son of a Bitch, a partner in the law firm of Tough-as-Nails here on Long Island.

Do any of you folks know myself, the attorneys or the litigants?"

I ask this question because if one of the jurors did know the attorney or the litigants, it might cause them to lean in favor of that person.

I then begin to explain what we are going to do.

"My client, Mrs. Jones claims that her doctor was careless and caused her significant harm and injury. The defense disputes these claims. We have a dispute that needs to be resolved. We need your help to resolve it. This case has been going on for the past two years and now we have reach trial."

"We are here in jury selection to picks six members of the community to sit in judgment and decide whether we are more likely right than wrong that what we are claiming is true."

"Have any of you served as jurors before?"

"Mr. Hamilton, are you a little closer to the people who believe doctors can do no wrong?"

"Mrs. Gonzales, do you believe that people should be held accountable for their actions? Even doctors?"

"For those of you who have had good experiences with your physicians, are you going to put Dr. Clumsy Hands on a pedestal and believe that there is no possible way he could have been careless?"

"Are you a little closer to the people who believe that surgical errors can happen and it is not the fault of the doctor when they happen?"

"Or, do you believe there are instances we're certain medical errors or mistakes can be preventable?"

My goal during jury selection is to explore the backgrounds and experiences of these potential jurors.

You can tell a novice attorney immediately if he asks a room full of jurors whether anyone in the room is biased or prejudiced.

Why?

Simple.

No one is ever going to voluntarily admit they are biased or prejudiced in front of a room full of strangers.

Even amongst people they know and feel comfortable with, admitting you are biased or prejudiced is not easy.

However, there are different strategies that attorneys can use to make a juror to be more comfortable in answering that type of question.

These jurors, applying for a job to sit in judgment on your case, don't know what answers we are looking for.

There are no right or wrong answers.

However, there are answers that suggest someone is not the right juror for this case. 

"I don't believe someone has the right to sue someone for money," says one juror.

"That's ok to believe and it's your right to have that belief. However, the law gives an injured patient the absolute right to sue if they believe their doctor was careless. Do you think that maybe this might not be the best case for you to sit on?"

That type of juror clearly would not be an ideal person to sit in judgment on our case.

If he agrees, he will be excused.

If he doesn't agree and says he can still be fair, he's now created a problem for me.

It's one that can be solved, but it's still a problem.

You see, he has now shown me a conflict.

He said he doesn't believe anyone should sue, regardless of who was careless and regardless of the injuries they suffered.

Then, he said he can be fair when sitting in judgment on this case.

Really?

Do you think he'd be fair?

Do you think he'd be fair to my client?

He's just come right out and told me that my client shouldn't be in court, regardless of what was done to her.

Regardless of his statement he could be fair, there's just no possible way that could happen.

Since he's not going to volunteer to leave this jury panel, I'm going to ask my adversary if he will agree to excuse him.

If I get my adversary's consent, then together we can excuse this potential juror and have him return to the jury room to wait for the next case.

If my opponent refuses to consent to excuse this juror, I now have two options.

You see, I need to get this juror off the panel.

I cannot, under any circumstances, allow this person to remain as a juror.

So here are my two options...

I can tell my adversary that I am using one of my "Remove this juror" cards.

I don't have to tell him why.

I can remove any juror for any reason with one of these cards.

What does that mean?

That means I have three opportunities to remove people whom I do not like.

The problem is that once I use up all three of my "Remove this juror" cards, I no longer have the ability to remove the next juror I don't like.

Instead, I must have a legal reason why this person should not be sitting as a juror on our case.

In case you want to know, when I talk about using a "Remove this juror" card, in law we call that a "Peremptory challenge."

I have three peremptory challenges I can use for any reason.

If I used up those three challenges, I must now announce a reason to get a juror excused.

That means I must now give a legal reason why this juror cannot sit in judgment on our case.

That means the judge will decide whether my legal argument is sufficient to remove this juror for a particular legal reason.

Legally, that's known as a "Challenge for cause."

To learn even more about how jury selection works here in New York, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer