Let me ask you a question...

If a total stranger walked up to you and asked "Hey Mr. Jones, are you prejudiced?" how would you answer?
I'll tell you how you'd answer.
You'd be reluctant to talk to this stranger.

You'd be reluctant to open up and discuss your true feelings with a total stranger.
Who is this guy to ask you about your personal feelings?
There's no way in hell you'd start telling a perfect stranger your deep inner-most thoughts.

"What if the stranger disagrees with me?" you might ask.
"What if this stranger is targeting me and looking for people who think x, y or z?" is another question that might be going through your mind.
"I'm not getting into a discussion about this...it's private and it's none of his business!" you think to yourself.

All of those are valid responses to a stranger asking you this seemingly bizarre question.

Yet this type of question is asked every day by attorneys to jurors who show up to the court house for jury duty.
Honestly, it's a terrible question.
It's terrible for another reason.

A deep seated reason.
The fact is that nobody wants to admit they're prejudiced.
At least not in public.

Nobody wants to say what many are thinking for fear of what others will think of them.
"He's prejudiced!"
"He's biased!"
Those labels can be embarrassing, especially when made in front of a group of strangers.

It takes a really strong-minded person who simply doesn't care what anyone thinks to stand up in a room of 30 strangers and say "Damn right I'm prejudiced! I don't think those types of people should have any rights to blah, blah, blah..." the opinionated juror declares while the entire room has their collective jaws drop to the floor.

The plain fact is that nobody wants to admit they're prejudiced.

Nor does anyone want to admit that they're in favor of one side or the other.
That's really what bias means.
They favor one side because they have an affinity for one or the other.

It may be rational.
It may seem logical.
But bias means you favor one side before you've heard or seen any evidence.

That gives one side an advantage.

Getting back to jury selection and the types of questions I want to ask jurors...

As we're getting ready to start a medical malpractice trial, we are asked to select six people from the community who tell us they can be fair and impartial.

The sad reality is that not everyone tells the truth. (Gasp! Can you believe I uttered those sacred words?)
Although witnesses get up on the witness stand, put their hand on the bible to tell the truth, do you think there are times when a witness simply lies? Unfortunately, yes. It's our job to show a witness is being less than truthful. 

But in jury selection, when we're trying to pick those jurors who are right to sit on your case, asking them if they're prejudiced is simply an awful question. Everyone will always say "No, I'm not." Great, you got the answer you're looking for, now ask another question counselor.

There are different ways to elicit a response that is more indirect and less offensive.
But the point is it is critically important to discuss prejudice and bias during jury selection.
Let's say a juror is married to a doctor.

She may feel that all injured patients have frivolous cases when they sue a doctor.
Maybe her husband the doctor has been sued before.
Being married to a doctor may cause her to lean in favor of the doctor you're suing in your case.

That would be very important to know before deciding if she is the right juror for your type of case.

I might ask "Mrs. Jones, are you a little closer to the people who feel that doctors should be put on a pedestal where a doctor can do no wrong?" "Or are you a little closer to the people who feel that everyone should be held accountable for their actions regardless of their job or profession?" Then I'd follow up with "Tell me why..."

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


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer