I was a young defense lawyer.

Many years ago.

Eager to try cases.

I was assigned this case to try.

I had never seen it before.

I knew nothing about it.

Trial was scheduled to take place in two weeks.

In Queens County here in New York.

It was a medical malpractice case.

I was representing one of the doctors who was being sued.

The patient claimed that her doctor was careless.

She claimed that his carelessness caused her injury.

She also claimed that her injury was permanent.

The doctor who was being sued said "Nonsense!"

He said this case is bogus.

He said he did nothing wrong.

He refused to settle.

He refused to pay a dime.

At that time he was able to decide if an offer to settle woudl be made.

The insurance company had no choice.

They had to go along with his decision.

It was in their insurance contract with the doctor.

That meant this case was going to trial.

A jury of six people in the community would decide.

They'd decide if the injured patient was more likely right than wrong.

I started my trial preparations.

Usually, preparing for trial takes months.

I didn't have that luxury.

I had only two weeks.

The two experts we had consulted were not confident of winning.

They felt we had a weak defense.

They felt the patient actually had the better case.

That made it even worse for me.

Knowing that there's a chance we'd lose at trial made it seem like I was setup to take the fall.

I didn't care.

I just wanted to try cases.

I wanted to do the best I could for my client.

He deserved the best I could offer.

Together with my two experts I came up with a trial strategy.

I planned on seeding this strategy while picking a jury on this case.

I needed to plant certain ideas with the jury.

"Do you agree that just because someone brings a lawsuit doesn't mean they have a valid case?"

"Would you agree that just because someone claims to have suffered injury doesn't necessarily mean it was because of my clients' actions?"

Getting the jury to keep an open mind about different possibilities was important for the improbable success of this trial.

Two weeks flew by in an instant.

I had devoted all my waking hours to preparing for this trial.


Getting exhibits ready.

Making large posterboards to show the jury.

Meeting with my experts.

Preparing for cross examination.

Meeting with my client.

Preparing legal briefs for the judge.

Preparing a detailed list of legal instructions I wanted the judge to tell the jury about.

It's now time for jury selection.

I meet my adversary for the first time.

We shake hands.

Professionally of course.

There's no love for each other.

I have not worked with him before.

His reputation in the community precedes him.

He's had some remarkable successes at trial.

He's well known in the medical malpractice legal community.

As for me?

I'm just a hard-working young associate in a well regarded defense firm in New York City.

I thought this would be a blast.

I was hoping to learn a lot from my opponent, although I didn't share that with him.

I think my boss actually assigned this case to me just so I could learn everything I could from this formidable adversary.

You should know that the term 'jury selection' is really a misnomer.

It's not reflective of what lawyers actually do.

We don't go into a room and pick the jurors we want.

Instead, here's what happens...

The jury clerk randomly selects 25-30 people from a bin.

Those people are put into a windowless room to await the attorneys.

There's an awkward silence in the room while jurors are waiting.

The attorneys are finally told they can enter.

The jurors look to us, at least initially, to learn what's going to happen in this little room.

The attorney for the injured patient gets to explain briefly what's going to happen.

He takes charge and begins asking jurors questions.

He wants to get them to talk.

At the same time, he wants to enlighten them about what this case involves.

He'll claim that he wants people who are fair and impartial to sit on this jury.

(Do you think anyone will voluntarily admit they're not fair and impartial?)

After forty five minutes, he tells the group of 30 people he has no more questions.

It's my turn.

I start asking questions.

I too want to seed the jury with important ideas.

I need them to be open minded.

I need them to not make up their mind just from what they heard the plaintiff's attorney discuss.

I learn that some of these jurors think the patient's claim is frivolous.

Even without hearing any testimony.

Without hearing any evidence.

Some jurors think it's total bull that an injured patient can bring a lawsuit just to try and obtain money.

The patient's attorney quickly realizes his case is going to crap.

The jury is slowly poisoning itself with harmful ideas to his case.

He immediately sees he has to do something to salvage his case.

If he were to sit silently and observe without comment, he risks having a jury of six people who are hostile to his case before ever hearing a single piece of evidence.

There are a few ways to intervene here.

  1. He can rationalize with the jurors

  2. He can sympathize with them

  3. He can express their frustrations and tell them he identifies with them

  4. He can get angry at them for voicing their true thoughts

  5. He can lecture them and tell them that their prejudices have no place in the courtroom

  6. He can accuse them that they have already made up their minds before ever hearing any testimony

Or he can do something extreme.

He can call them racist.

He can trick them into believing that their ideas and beliefs are contrary to our system of civil justice.

He can poison the jury (figuratively) with the idea that they're not smart enough to sit on this jury.

Before you shake your head wondering why he'd do those things, you must understand this concept.

Jury selection, when done correctly, can have a dramatic effect on the outcome of your trial.

It can make or break your case.

Picking the right jurors at the beginning make a very big difference in whether you win or lose.

During this jury selection, I could see that the patient's attorney realized quickly that the jurors were turning against him and his client.

I didn't know what he was going to do to remedy his predicament.

I wasn't sure what could be done to improve his chances with getting a good set of jurors.

I didn't have to wait long.

In fact, as soon as I was done talking to the jurors, I knew they were almost all in my corner.

He asked to make a few more remarks.

I didn't think it was a big deal.

But that's because I was a young naive attorney.

I had a good number of trials under my belt, but I hadn't encountered this scenario yet.

I said "Sure. Go ahead."

The patient's attorney stood up.

He then started pointing his fingers at each potential juror in the room.

He accused them of being biased.

Of being prejudiced.

Of hating his him and his client.

Of not giving him and his client a fair shake.

He raised his voice.

With indignation.

With anger.

He started calling them names.

"You're all pathetic losers!" he yelled.

"You're all selfish!" he screamed.

He shamed them.

I finally realized what he was doing.

It took me a few moments.

Then, I had no choice but to stand up and yell "Objection! How dare you talk to these people like that! Step outside counsellor," I said.

Outside in the hall I started yelling at my adversary.

"What the hell are you doing? You're poisoning the jury! Either they'll all get up and leave or you intentionally want to bust up this jury panel and start with a new panel..." I said.

As soon as I said it, I could see a slight glimmer of a smile begin and then immediately fade from the attorney's face.

He turned serious again and said "If you don't like it, take it up with the judge."

I could have kicked myself.

I should have seen it coming.

I didn't.

He did this on purpose.

He wanted to kick off all the jurors in this room.

He wanted a new group of 30 jurors to start fresh.

He poisoned these people to the point where the judge would have no choice but to put in a fresh batch of 30 people so we could start from scratch.

He didn't care if the judge yelled at him.

There were no repurcussions for this outburst.

At least none from the court.

I should have known better.

But I was young.

I was outmaneuvered.

He pulled a fast one on me.

Lesson learned.

So what happened here when we went to see the judge?

Exactly what he predicted would happen.

I made a stink about his outburst.

I told the judge how he offended the jury every way possible.

The plaintiff's attorney admitted he got carried away.

He apologized to the judge for his behavior and his comments.

Predictably, the judge disbanded the entire jury panel in our room and ordered that we start over again with a new group of 30 people.

My boss was right.

I did learn something from this attorney.

It's a lesson I'll never forget.

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

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer