The answer is, I could.
The better questions is "Should I ask a potential juror what he thinks about someone who brings a lawsuit?"
The answer is definitely yes.

You might be wondering why I would ever ask such a loaded question.
You might question my sanity knowing that this potential juror could give me an earful that I probably don't want to hear.
You might even say that asking such a question will poison the other jurors in the room and get them thinking about frivolous cases.

The reality is that I NEED to ask this question.
I NEED to know the answer.
Just asking the question doesn't mean I'm going to get a straight answer, but I hope the juror will tell me the truth.

You see, we don't hook jurors up to lie detectors when picking a jury.
We don't know with certainty whether the answers they give to our questions are entirely truthful.
We just don't know.

That's why attorneys have to learn to trust their gut feeling.

When asking a loaded question like the one I posed, there are very few answers.
Typical answers are:

1. "No, I have no problem with people who bring lawsuits."
2. "I don't think anyone should bring lawsuits."
3. "I think people who bring lawsuits are only out for money. Before I give someone a dime, I want to make sure with 100% certainty that what they were claiming is true."
4. I think these types of lawsuits against doctors are frivolous.

There. They've said it.
The cat's out of the bag.
That's the big elephant in the room.

One juror has spoken up and thinks cases like these are frivolous.
Another chimes in and joins the chorus.
"Yeah, these cases are frivolous. Why not leave the poor doctor alone. He's just trying to help sick patients!"

This is good.
Good to establish jurors thoughts and feelings about cases like these.
Good for me to know so I can start to strategize about teaching these jurors why their view of cases like these are wrong and how to excuse these jurors from our jury panel.

I need to know if a juror is leaning in favor of one side or the other.
I need to know if a juror has obvious feelings toward doctors where the doctor can do no wrong.
Or, do they have an open mind and realize that even with good intentions, a physician may still be careless and cause harm.

I need to know if a juror can accept the fact they don't have to be 100% certain about our claim in order to reach a verdict in our favor. In fact, we ONLY have to show that we are slightly more likely right than wrong. That means we ONLY have to show that we are slightly more than 50% right that what we're claiming is true. Even 50.1% means a verdict in our favor.

I need to know that a juror understands this is the only way to compensate an injured patient. This is our system of justice. If we can show that the physician was careless and that his wrongdoing caused you harm, then by law, he is obligated to give you money as a form of compensation. "Can you follow the law as the judge gives it to you?"

If I don't ask the question, I'll never know the answer.
I'll never know this juror's opinion or bias.
I'll never know whether this juror is leaning in favor of one side or another before we begin our trial.

The bottom line is that I NEED to know.

To learn more about how jury selection works, I invite you to watch the quick video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer