EDITORIAL, Vol. 13 No. 3 (1995)

William F. Gallagher

EDITORIAL

JURY ORIENTATION REFORM

Any trial lawyer selecting a jury in Connecticut will attest to a definite shift in the attitudes of the public regarding personal injury cases. Although most jurors will answer that they have no negative "feelings" about personal injury cases, the majority, when pressed, disclose a decided reluctance to award money damages for an injury. The questions go something like this:

I think people should be responsible for their own conduct, and I would want to evaluate that before considering money. (This juror is telling you: "Take me and you lose.")

(The most common response) - It depends on the case. I would not give an award of money if it is frivolous.

But, of course, whether the case is "frivolous" in the juror's eyes cannot be determined until he or she hears the evidence, and the evidence can't be discussed on the voir dire. Maybe the juror would give no damages not because of liability, but because she thinks the injury claim, or the case itself, is "frivolous." A Pandora's Box of legal issues is opened by this kind of an answer, which is not the subject of this editorial.

We attribute this shift in attitude to changing times, and propaganda in the form of Readers' Digest articles, Wall Street Journal articles and editorials, or television or radio commercials, all financed by the insurance or medical industries, or corporate America.

But what if the answers of these jurors are the result of bias in jury orientation? At present, the jurors are shown a film produced by the judicial department concerning jury duty and the court system, and are then instructed by a judge in the judicial district or geographical area where the juror is required to serve. There are no rules concerning the attendance of parties or their counsel at juror orientation sessions, nor is there any requirement that these proceedings be on the record.

A Connecticut lawyer was recently selected for jury duty. He arrived at the prescribed location at 8:00 a.m. and after filling out the jury questionnaire sat through the Judicial Department video. Outside the presence of any of the parties or the attorneys, a Superior Court judge then gave a "little talk" to the jurors about the jury system, and their duty as jurors and what they will be experiencing that day. He told the panel that if its members ever had occasion to bring a lawsuit as a result of a motor vehicle accident, they probably would not be proper persons to sit on a jury involving a motor vehicle accident. He also stated that he agreed with some, but not all, jury verdicts in civil cases. He stated that it was not the job of a jury to "give away the courthouse in arriving at a money damage verdict." He then indicated, while pointing at himself, "some of us believe that plaintiffs should only get medical bills and then go on about their lives." He then pointed away from himself and said "others believe that the whole courthouse should be given away. That is not your job."

Another lawyer on voir dire learned from a juror that the judge instructing the panel that day had told its members that many plaintiffs get better after some of that "green poultice" is spread around. This plaintiff's attorney moved to discharge the entire panel, arguing that the panel had been told that an injured plaintiff gets better after money is awarded. The presiding judge granted the motion.

In another incident, several lawyers heard a judge tell a panel that two fractured legs would be worth $30,000, and that $1,000 per year for a 10% permanent partial disability would be an appropriate award. Other examples abound.

We are not interested in naming names, dates and locations, but will do so if necessary. We are interested in rectifying the situation, as it is manifestly unfair and an abuse by those in power at the expense of plaintiff litigants. It is unimaginable that the opposite comment would go unnoticed for more than thirty minutes. If a judge were to tell a jury that most awards are too low, and that they should seriously consider substantial damages in appropriate cases they might consider, there would be a hue and cry that would resound off the walls of the courthouses of this state. Recriminations would abound, and the Judicial Review Council would no doubt undertake an investigation. We propose to remedy this situation by the following legislation:

AN ACT CONCERNING THE

ORIENTATION OF JURORS

Be it enacted by the Senate and House of Representatives in

General Assembly convened:

(NEW) (a) All oral, written or audio-visual material presented to the jury panel with respect to the orientation of such panel shall, to the extent reasonably necessary and appropriate for the orientation of such jury panel, describe the procedures in the courts of this state and discuss the laws of this state. All oral remarks made to the jury panel in connection with the orientation of such panel shall be stenographically transcribed.

(b) In any civil or criminal action tried before a jury, all parties, or their counsel, shall have the right, prior to the voir dire of jurors, to examine all written material, audio-visual material, and the transcript of oral remarks made or given to such juror in connection with the juror's orientation. In lieu of making such material available to the parties, or their counsel, the court may permit counsel to be present during the orientation of the jury panel.

Until this proposal becomes law, we suggest that lawyers representing plaintiffs in personal injury actions attend the jury orientation, or inquire on the voir dire as to the instructions.