June 24, 2008

Use Photos to Identify Juror Bias

Larry D. Lee
Boulder, Colorado

Proving injury in a rear-end collision case is often difficult. The typical rear-end collision is low impact with little or no property damage. The plaintiff claims a neck or back injury and/or "hidden pain." Focus group outcomes suggest that many potential jurors believe plaintiffs sue out of greed, not because they were really harmed. Make the most of voir dire by getting opposing counsel to stipulate to the use of photographs of the cars involved as you question the jury panel. Find a reason to use the photos, even if it's to test jurors' eyesight. Ask:

• "Does anyone believe there is not enough property damage here for anyone inside the car to be injured?" (If a panelist says it is absurd for someone who was inside that car to claim injury, you might encourage further, open discussion by saying, "That's OK. I need to know this information. You're doing fine.")
• "Could anything convince you that somebody inside this car was in fact hurt when there is no property damage?"
• "Has anyone already decided that the plaintiff is faking, now that you have seen the photographs of the vehicle?" (You might reassuringly add, "It's OK to believe the plaintiff is faking. I need to know whether anyone has already decided the case.")

Showing photos of the cars and asking the panel questions about them will help you eliminate those who would be biased against the plaintiff from the outset.

—From TRIAL magazine's "Good Counsel" (May 2004)

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