A Matter of Opinion

All too often recently trials have been conducted before juries who did not listen, who are not impartial, and who do not follow instructions. We cannot remember a time when prospective jurors have been so antagonistic and negative toward litigants, and yet so anxious to serve on juries. Many venire members who have obvious biases or prejudices will not own up, and they seem to know what to say, and what not to say, to keep from being excused for cause. These people need to be identified and weeded out, and trial judges need to participate actively in that process to protect the integrity of justice in their courts. Instead, we are seeing some judges impose arbitrary and inadequate time limits for voir dire, judicial reluctance to disqualify members of the venire on discretionary grounds, and frequent instances of judges intimidating prospective jurors into claims of impartiality.

All trial judges should strive mightily to provide a forum and a format which is truly fair to the litigants. We tell prospective jurors that the overriding purpose of voir dire is to find a group of people who can be fair, impartial and open-minded so that the case can be decided on the evidence and the law. This means identifying people with biases, prejudices, and preconceived notions which is not so easy. Some people's feelings are deepseeded and need to be rooted out, and some are concealed and need to be weeded out, but in any event, it takes latitude in questioning and a courtroom atmosphere which encourages candor. Unfortunately, all too often judges put potential jurors on the spot to deny that they might have views which might interfere with their ability to treat all sides equally.

If a single person with a strong personality and closed mind is allowed to sit on a jury, this will often undermine the entire process of trial. If there is more than one such person on a jury, one side or the other may never have a chance no matter how meritorious their case.

Today, more people have more preconceived opinions about litigation, lawyers and courts than ever before, and most of it is negative. The public has been bombarded with media and public relations against the jury system for at least the last twenty years. Many jurors are personally affected or greatly concerned about insurance rates. They are concerned that a verdict could embarrass them with their peers. They have a mistrust of attorneys in general. They fear and resent changes in the health care delivery system. They harbor stereotypes about plaintiffs and cynicism and skepticism about claims. They have heard horror stories about friends or relatives who have been sued. They are offended by attorney advertising. They have been wronged without redress. Some identify strongly with the establishment, and some would love to award large sums of somebody else's money. More and more people