In the world of civil litigation, many cases are tried in front of a jury.
In New York, that means having six members of the community decide if you are more likely right than wrong.
Civil lawsuits involve claims of car accidents.
They involve claims of improper medical care.
They involve wrongful death.
Jury selection is the very first part of trying your case.
Let's say this is a medical malpractice case.
In New York, these cases typically take 2-3 years from start until trial.
The litigation process takes a long time.
You believe your doctor was careless.
You believe his carelessness was a cause of your injury.
You claim that your injuries are significant and permanent.
Your doctor disagrees.
Your doctor claims he did nothing wrong.
He then argues that even if he did something wrong, so did you.
Your doctor then claims that even if he did something wrong, that did not cause your injury.
To get you even angrier, your doctor and his attorney argue that your injuries are not really as bad as you claim them to be.
Your doctor refuses to take responsibility for his actions.
Your doctor refuses to negotiate.
That means your case is going to trial.
In most civil lawsuits the injured victim often wants to have a jury of their peers decide their case for them.
Rather than a judge making the decision.
At this point, the litigants have been unable to resolve their dispute for years.
They cannot reach an agreement.
They have been unable to settle this matter prior to trial.
That means your case will be scheduled for trial.
On the date your trial is scheduled to begin, testimony does not start on that date.
Instead, jury selection begins.
The process of picking a jury goes back hundreds of years.
In modern times, we have very specific procedures, rules and guidelines that we must follow when “picking a jury.”
First, where do these jurors come from?
These are people who have been selected at random to appear in court to be available for the next case that comes up for jury selection.
Many times a name will be selected from the role of voter registrations in the State.
Other times a random list of licensed drivers is generated from the Department of Motor Vehicles.
Each one of the people who have been summoned to court receive that dreaded jury duty notice.
It's a document that literally summons you to appear in court for jury duty.
Some people look at it as a burden.
Others look at it as a civic duty.
No matter which way you view it, you must respond to that jury duty summons.
Failure to do so could result in all sorts of lovely penalties as described in the notice.
Many jury duty notices tell you to call in on a specific day to see whether you are needed for jury service.
If your number is called, you know you must appear in court the following day.
If you are not needed, you can return back to work until you are needed the next day.
What happens when you now show up in court?
When you are finally told to appear in court, you will walk into a large room known as the central jury room.
This is really a big holding area designed to accommodate many jurors throughout the day.
The lawyers often refer to this as “Central jury.”
The clerk who oversees jury service is responsible for taking attendance and dealing with those jurors who have various excuses and are unable to serve.
While sitting in Central jury, you will notice people reading.
Some will be on their phones checking their e-mail.
Some will be on their laptops.
Some will be reading the newspapers.
There is not much to do in Central jury except sit around and wait.
You must wait to be called by the clerk.
You must wait to be called for a case that needs a group of jurors.
You might be waiting around all day without ever being called into a small room for a case.
If you have not yet been called into a jury room by the end of the day, the jury clerk will tell you if your jury service has ended.
What that really means is that no additional jurors were needed that day.
Here's what happens if you get called into a small room from Central jury...
You, along with 25 or 30 other people will be walked directly into a small room not far from Central jury.
The clerk will have small cards with the names of each person he is taking into the small 'jury selection' room.
When you arrive in this windowless tiny room, you'll likely see at least two people wearing suits and carrying briefcases sitting at a table near the front of the room.
Those are the attorneys who represent the litigants.
The clerk will hand those cards identifying each juror to one of the attorneys.
Or, she will deposit those cards directly into a large bin sitting on one of the tables with a handle that rotates.
You will be directed to sit anywhere in the room except for the front six seats.
Those fronts seats are reserved for people who will be called momentarily after one of the attorneys reaches into the bin and picks out a card at random.
Theoretically, this is “jury selection.”
Actually, it's not.
All that's going on is that six people are randomly picked from a rotating bin in order to seat them in the first six seats in the room.
This is not selecting the ideal jury, by any means.
Six people have been asked to sit in the front of the room.
The attorneys now begin to learn who these people are.
Where do they come from?
What is their background?
How much schooling and education have they had?
Have they had jury duty before?
Have they sat on cases where they rendered a verdict?
Have they had similar problems?
Has anyone in their family or friends been involved in similar litigation?
Do they know any of the litigants or potential witnesses?
Do they own stock in any liability casualty insurance company?
There's a key reason why the attorneys want to learn this information.
They want to know whether those six people sitting in front of them are the ideal jurors to decide this particular case.
Each attorney has an opportunity to ask questions and to chat with the first six people.
Since the people who are in this room come from all walks of life, it's important to understand their backgrounds.
What do they feel about people who bring lawsuits?
Do they feel that doctors can do no wrong?
Do they have opinions about how much money they could give in this particular case?
Imagine if the attorneys simply took the first six people who were called and put them on the jury without asking who they are or their background.
We wouldn't know if any of them were biased in favor of one side.
We wouldn't know if anyone has strong opinions about a particular topic.
Let's say the case involved an improperly performed termination of pregnancy, also known as an abortion.
As a result, this patient suffered a perforated uterus and can no longer have children.
Do you think it would be important to ask these potential jurors what their feelings are on abortion?
Do you think it would be important to learn what they thought of doctors who performed these termination of pregnancy procedures?
If we didn't ask them, we would have no way of knowing whether they believe strongly for or against each position.
Just because a juror expresses a strong opinion in favor of or against a particular issue does not mean that they are going to be rejected as a juror.
Instead, it allows us an opportunity to explore those opinions and to see whether anyone else in the room had similar opinions.
If we know at the outset that a particular juror feels strongly one way or another, that could certainly influence their thinking before they hear any testimony or evidence in this case.
Let's say one of the potential jurors had a severe cardiac condition and a heart surgeon saved her life. Because of that episode, this woman believes that all doctors are amazing and can do no wrong.
That's her opinion and no one is going to change it.
You should know that our goal when questioning these jurors is not to change their opinion.
Instead, it's to learn who they are and what their opinions are.
We need to know whether any of those opinions or beliefs might cause them to lean in favor of one side.
If we don't address these issues during jury selection, the first time they will hear of these issues is during opening arguments at trial.
Imagine if this juror who feels doctors can do no wrong was a juror listening to testimony.
She now learns during opening arguments that this case involves claims of improper medical care that resulted in permanent injury.
Remember, this juror believes that doctors can do no wrong.
Clearly, she would be biased in favor of the doctor who is being sued.
That certainly would not be fair to the injured patient.
When it becomes obvious that a juror's opinions or beliefs favor one side before any testimony is presented, the juror often recognizes that this might not be the ideal case for them.
They begin to recognize that there are other cases in the courthouse where they can serve as a juror.
In that instance, these jurors acknowledge that this would not be the best case for them to sit on.
Where the attorneys agree that this juror cannot fairly judge this case, the attorneys will agree to release this juror back to central jury to await being selected on a different case.
There are many different types of trials that go on each day in the state courts here in New York.
Speaking of courts, you should know the hierarchy of the court system to give you a quick overview.
In the civil justice system in NY, there are three levels of courts.
The first level is the trial court.
Then there is the first appeals court.
Then there is the final appeals court.
The trial level court in New York is known as the Supreme Court of the State of New York.
There is a trial level court in every county in the state of New York.
For example each county such as Nassau County, New York County, Kings County, Queens County, Bronx County has their own trial level court.
If a litigant loses at trial, they must appeal their case to the Appellate Division.
In the New York metropolitan area, the First Department in the Appellate Division covers New York County and the Bronx.
The Second Department in the Appellate Division covers Nassau, Suffolk and Westchester.
If a losing party wants to appeal their case to the highest court in New York, they must get permission from the highest court to do so.
The highest appeals court in New York is known as the Court of Appeals.
Let's get back to jury selection...
The attorneys are given a limited amount of time in which to chat with the first six people called up to the front of the room.
I tell the entire room a few facts of this case.
"Ladies and gentlemen...this case involves a careless gynecologist who failed to diagnose my client's breast cancer in a timely fashion. That cancer has now spread and she has come to you for help to decide whether she and her claim are more likely right than wrong."
We are not allowed to go into much detail.
There is no judge present in this tiny jury room.
There is no court reporter present to record any of the statements that we make.
The litigants themselves are not present in this tiny room.
There is no evidence being presented in this room.
Instead, it's an opportunity for us to determine if these folks who've been called for jury duty are ideal jurors for our case.
Once each attorney has an opportunity to chat with the first six jurors, the attorneys go into the hallway to make their first round of decisions.
The term “jury selection” gives someone the impression that the attorneys now select which jurors they want to be on this jury panel.
Actually, that's not how this works.
That's now how any of this works.
Lawyers don't select the jurors they want.
That would be too easy.
Instead, they select the jurors they don't want.
They remove those jurors who they feel would not be appropriate to sit on this case.
Remember, each attorney has their own hidden agenda.
Each attorney believes that there is a certain type of juror that would be best for them and for their case.
Naturally, those viewpoints are clearly different between the two opposing lawyers.
Let me reiterate...
The attorneys go into the hallway to make their first round of choices.
The choices they are making do not involve picking the jurors they really want.
Instead, they go through their list and decide which jurors they do not want.
This 'jury selection' phrase should really be called 'jury de-selection'.
Here's a great analogy...
Imagine going back to grade school and playing kickball at recess.
You need to pick teams.
There's a captain for each team.
In grade school, the captain would typically pick those players who are excellent athletes.
Those great coordinated athletes always got picked first.
Then, the kids who were not so great athletes would be picked after them.
Then, after the best athletes were picked and after the not so great athletes were picked, you were left with those kids who had very little athletic ability.
Not only did those kids feel miserable being picked last but it was obvious for all of their classmates to see that they were the lowest of the low on the totem pole.
Imagine instead of selecting the best people first, the captains turned around and said they did not want the following kids on their team.
It just so happened that those kids were the ones who could barely run and kick.
After each side had exhausted their opportunities to remove those kids they did not want, now whomever was left over would be on their team.
That's pretty much how jury selection works here in New York in civil cases.
Lawyers don't get to pick the best jurors that they want.
Instead, they get to remove those jurors who are most harmful to their case.
Whoever remains in those first six seats become jurors on this case.
You should know there's a little twist to this.
The attorneys who are “deselecting jurors” do not have an unlimited number of choices.
Rather, each attorney has a limited number of chances to remove jurors they do not want sitting on their case.
In a trial involving an injured patient who sued her doctor, you would have one attorney representing the injured patient and one attorney for the doctor.
In that scenario, the law allows each of those attorneys only three opportunities to remove jurors from the jury panel.
Legally, these are known as “peremptory challenges.”
A “challenge” simply means that an attorney is raising an objection to one of the jurors.
When an attorney says in the hallway “I'm challenging juror #2” it means he does not want juror #2.
What happens next depends upon what type of challenge he raises.
You see, those limited opportunities to remove jurors are very important.
An attorney who uses one of his 'peremptory challenges' does not need to tell anyone why he is removing that juror.
Maybe he doesn't like the way they look.
Maybe he doesn't like the book that the juror is reading.
Maybe he doesn't get a good vibe when talking to this potential juror.
Maybe there's something this juror said that clearly indicates this person is not for you.
Let's say this is a medical malpractice trial.
We're in jury selection.
Juror #2 tells me that she believes doctors can do no wrong.
She has the highest regard for doctors.
Because of their dedication and years of training, she does not believe that any patient should ever bring a lawsuit against a doctor.
The defense attorney loves this juror.
He's going to do everything possible to keep this person on the jury.
When I tell him that she is biased in favor of the doctor, he refuses to agree.
If he were reasonable, he would have no problem agreeing to excuse this juror and send her back to central jury to await another case.
However, many defense lawyers will do everything in their power to keep this person on the jury.
That means he's not going to agree to excuse this juror.
Here's my problem...
I do not want to use one of my precious peremptory challenges to have this juror removed.
Those peremptory challenges are to be safeguarded and only used when absolutely necessary.
So what do I do?
The answer is simple.
I demand to see the judge in charge of jury selection.
You should know that during jury selection, there are many instances where the attorneys will disagree.
Maybe one attorney said something during his chat with the jurors that was inappropriate and needs to be fixed.
Maybe the attorney needs to be reprimanded by the judge for saying or doing something in front of these potential jurors that he should not have done.
Maybe the defense attorney is being unreasonable when I ask him to excuse a juror with an obvious bias or prejudice.
In that instance, the attorneys proceed directly to the jury clerk and let her know we need to speak to the judge in charge of jury selection.
As soon as the judge is available, we now present the issue to the judge.
“Judge, this is a medical malpractice trial and my client claims that her doctor was careless causing her injury. Juror #2 tells us that a heart surgeon saved her life and she feels that no doctor can ever do wrong in her eyes. She believes that patients should never sue their doctor under any circumstance. I've asked my adversary to consent and agree to excuse this juror and he refuses.”
The judge will then turn to the defense attorney and ask his reasoning for not excusing a juror with an obvious bias. The attorney must give the judge some rational legal explanation why this juror can be fair in light of her answers to my questions.
The judge then makes an immediate ruling.
If he decides in my favor, that means that this juror will be excused “for cause.”
What that really means is that I do not have to use up one of my precious peremptory challenges to excuse her.
However, if the judge disagrees with me and feels that this juror can be fair, then I will have no choice but to use up one of my precious peremptory challenges to get rid of this juror.
What happens though if I have no more peremptory challenges to use?
That's a problem.
In that instance, where the judge refuses to excuse this juror “for cause” that means I would now be stuck with this juror on our jury panel. This could destroy the outcome of your case.
Let's say that during this first round of removing jurors, we removed four jurors who were not right for your case.
We excused two of these jurors “for cause.”
That means each attorney has used up one of their peremptory challenges.
That means we now have two peremptory challenges left.
Out of the six jurors we started with, we're now left with two jurors.
We removed the other four.
Here's what happens next.
The attorneys march back into the small jury selection room.
One of the attorney's announces that the four people who have been excused can return back to the central jury room with their cards.
Each one of them is thanked for coming in and chatting with us.
The remaining two 'selected' jurors are sent out to the jury clerk and identified as “selected jurors”
The jury clerk then advises them to wait around until the remaining jurors have been picked.
One of the attorney's now reaches into the revolving bin containing the names of the people still sitting in the jury selection room.
Four names will be called in order to fill the seats of the four previous jurors who were just excused.
Those new four people now march up to the front of the room and take seats at the very front.
We must now begin the process of chatting with these four jurors once again to learn about their thoughts, their beliefs, their opinions and their background.
You should know that during the second round of chatting with these people the attorneys have even less time to talk to them.
Some courts give the attorneys only 15 minutes each to talk to these jurors during the second round.
Some allow the attorneys to chat for half an hour.
After the attorneys have spoken with these four new jurors, we then go into the hallway and again begin the process of removing those jurors whom we do not want on our jury.
We look for the most harmful jurors and do everything we can to get them removed.
We do everything we can to have them excused “for cause” so we do not have to use up our remaining peremptory challenges.
If you ask me why we don't simply pick those jurors who we believe are our perfect jurors, I could not honestly tell you the answer for why the courts do it this way.
That's the way it's been done for years and years.
I've been in practice for more than 28 years now and can tell you that's the process that has been in existence in New York for the past 28 years.
It's also my understanding that this jury de-selection process has been in existence for many more years before that.
This 'jury selection' process continues until the attorneys have used up all of their peremptory challenges or six jurors have, by default, been selected.
The reality is that the remaining jurors are ones that the attorneys can live with or have no choice since they ran out of challenges.
Learning how to pick a jury and remove jurors who are not ideal for your case is more an art than a science.
Experience plays a great role in picking the right jury and learning the right strategies and tactics to identify those potential jurors who will be most favorable to you in your case.