The power of myth1 is unparalleled in the media reports of a so-called “medical malpractice crisis” and an alleged need for “tort reform.” Unfortunately, many of the attitudes, beliefs and mores of the American public are based upon these myths and media reports that doctors are being driven out of their practices by so-called “ambulance chasing” attorneys filing “frivolous lawsuits” that raise medical malpractice insurance premiums beyond what the market can bear. A myth, however, is defined as a “legendary narrative” to explain a belief, practice or phenomenon.2 It also is defined as “an imaginary or unverifiable person or thing.”3 Myth-makers, under this definition, are the storytellers of fiction, fable and legend. At least one author has explained that it is the business of mythology proper to turn tragedy into comedy by creating a path between the two.
The so-called “medical malpractice crisis” and need for “tort reform” are longstanding myths in our society that must be dispelled. They are myths created to make a comedic path directed away from the tragedy that has befallen each of our clients as victims of medical malpractice. We, the attorneys representing these victims, know only too well, however, that the so-called “medical malpractice crisis” only exists because the doctors are committing malpractice on our clients and the only way to end this so-called crisis is to end the occurrence of malpractice. In order to vindicate our clients, these myths must be dispelled from the jury who will decide our client’s cases. We are the storytellers chosen by our clients to tell their tragedy to the jury and make the jury see the tragedy for what it really is. Attorney conducted voir dire is our first opportunity to do that and we now have the opportunity to conduct voir dire and dispel the media-created myths in our medical malpractice cases pursuant to RSA 500-A:12-a (2005).
I. Attorney Conducted Voir dire – Its History and Purpose
Voir dire means “to speak the truth.”5 It denotes the “preliminary examination which the court and attorneys make of prospective jurors to determine their qualification and suitability to serve as jurors.”6 Once jurors are selected and sworn, their duties are “to inquire of certain matters of fact and declare the truth upon evidence to be laid before them.”7 Until the legislature codified the right of attorney conducted voir dire in RSA 500-A:12-a, however, New Hampshire Courts rarely allowed attorneys to conduct voir dire of the jury,8 except upon motion to submit additional questions for the Court to ask the jurors and, then, only if the Court granted the motion pursuant to RSA 500-A:12.9
In State v. Goding, our Supreme Court recognized that the existing RSA 500-A:12 was “skeletal and must be supplemented . . . by questions targeted to the particular bias that might be involved in a given case.”10 The Court observed that “[o]ne touchstone of a fair trial is an impartial trier of fact . . . . Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors.”11 The Court noted that voir dire also serves to provide counsel with sufficient information to intelligently and meaningfully exercise their challenges, finding that “[w]ithout sufficient information, . . . the voir dire is rendered an empty ritual.”12 The Court then found that when a trial court refuses to ask any of the questions propounded by a party, that refusal is a failure to exercise discretion and is unsustainable on appeal.13
As early as 1927, our Supreme Court observed that voir dire in civil causes is often required for counsel to meaningfully exercise their peremptory challenges.14 The Court found that the attorney’s right to meaningfully challenge jurors is as important to securing a fair trial as the Court’s right to do so.15 Furthermore, the Court found that the right to challenge jurors is as important in civil causes as it is in criminal causes.16 Indeed, the Court noted that a party:
[C]annot be compelled to make a peremptory challenge until he has been brought face to face, in the presence of the court, with each proposed juror, and an opportunity given for such inspection and examination of him as is required for the due administration of justice.17
The Court found that if the attorney’s right to meaningfully challenge jurors is lost or impaired, then the empanelled jury was not fairly established and the party whose right of challenge was impaired is not required to submit to its verdict because he has not had the jury trial required under the law.18
In light of this longstanding jurisprudence, it is interesting that it has taken so long for this substantive right of attorney conducted voir dire to be codified into New Hampshire law. One Superior Court recently found that the statute allowing attorney conducted voir dire was an unconstitutional legislative usurpation of the essential functions of the judiciary because it established procedural rules for jury selection.19 We think that the Supreme Court will likely disagree with that decision due to the longstanding jurisprudence in New Hampshire regarding statutory provisions regarding jury selection. Indeed, in interpreting other statutes regarding juror selection and challenges, the Supreme Court already has ruled that “[t]he terms of statutes relating to it are construed as substantial rather than technical.”20 Because of this, we think that the Supreme Court will uphold the right to attorney conducted voir dire and encourage attorneys to expose the biases and prejudices held by potential jurors, which includes dispelling the myths of the medical malpractice crisis and need for tort reform through seeking the truth in voir dire. Only then can we insure that our client’s cases are decided by “jurors as impartial as the lot of humanity will admit.”21
II. From Comedy to Tragedy – Dispelling the Myths
Comedies are defined as light, amusing stories with happy endings.22 Tragedies are defined as serious stories with sorrowful or disastrous endings.23 Comedies with happy endings all end alike, but each tragedy with its sorrowful ending, as we know with each of our client’s cases, ends in its own way. This is why myths are created for the masses to form their beliefs, by turning individual tragedies into fictionalized comedies that end in the same manner.
For example, the so-called “McDonald’s Coffee Case” is considered by most jurors as the mythical example of a frivolous lawsuits. Jurors are unaware of the actual tragedy of the extent of injuries and number of surgeries Stella Liebeck endured when she was burned by the coffee she purchased from McDonalds. Nor are they aware of the evidence that was presented of corporate cover-up and failure to remedy a known danger. Rather, the media created a comedic myth of a frivolous lawsuit brought by a woman who received millions for spilling her own coffee. The media and corporate America created this myth, and the public have latched onto it as their example of frivolity in the civil justice system.
During voir dire, we can dispel myths such as this by asking questions that seek the truth about the juror’s own individual tragedies and about their prejudices, biases and impressions of all aspects of the civil justice system – including the mythical McDonald’s Coffee Case. These are the truths that will allow us to meaningfully use our peremptory challenges. As our Supreme Court has observed, the fundamental right of using peremptory challenges is “a right to reject, rather than select jurors.”24 Additionally, we can introduce the jury to our client’s own tragedy through generalized hypothetical discussion, to see who can and cannot relate to the individual tragedy that has befallen our client.
Dispelling the media myths is essential to vindicating our client’s right to a fair and impartial jury. This principle is especially true in medical malpractice cases. Jurors are consistently bombarded with negative images of lawyers. Simultaneously, jurors consistently receive positive images of doctors. Meanwhile, jurors are surrounded by the media promotion of the insurance company myth that plaintiffs, and their lawyers filing “frivolous lawsuits,” are creating a national crisis that threatens the existence of the basic medical services on which jurors rely. In order to properly address these myths, we need to get the jury engaged in an open discussion of them in order to see the degree to which each juror adheres to the beliefs on which they lie.
Engaged discussion is the key to a productive voir dire. Merely asking a jury if they can decide the case fairly and put to the side any media myths they have heard will not meaningfully help you select or reject jurors. The courtroom imposes an appearance of respect and fairness and many jurors will dress, speak and act in accord with that appearance of respect for the court and may even convince themselves that they can decide a case fairly. Engaging the jurors in their own discussion about their own life experiences, attitudes and beliefs, however, will reveal far more than any individual answer to a direct question we might ask. To do this, many articles suggest using a talk-show format by listing talking points for discussion and raising them for the jurors to debate amongst themselves. These talking points may include issues like racial bias, stereotypes, frivolous lawsuits, injuries, the medical profession, healthcare, amounts of money they might find frivolous in light of their own economic experience, the value of pain, suffering or other non-quantifiable damages, and any other issue that might arise as a turning point in your case. An additional use of this discussion is to find out what really affects each juror and who they affiliate or associate with, because this may help you focus on appealing to your actual audience as you present your case.25
If we do not maximize our use of attorney conducted voir dire by engaging in informed discussion about the issues that will expose and dispel myths, bias and prejudice, we will end up selecting our client’s jury based upon our own closely held beliefs, stereotypes, generalizations and myths that we are trying to dispel from the jury. Notably, if we do engage in this type of limited inquiry to our panel, we also will be guilty of unconstitutionally selecting and rejecting jurors based upon the stereotypes and prejudice we hold.26
III. Practice Pointers – Using Voir dire to Vindicate the Victim
A growing number of Courts are allowing attorney conducted voir dire into the mythical issues of the so-called medical malpractice insurance crisis, tort reform and damage issues because they are recognizing the potential for bias and prejudice through the extensive political and media campaigns on these issues.27 Because of this, many trial psychology pundits are proposing practice pointers as general guides to engage in an effective jury voir dire on these issues. Jaine Fraser, Ph.D., from the Trial Psychology Institute, suggests that the attorney should set his or her sights on three specific goals in order to have an effective jury voir dire:
Discover what beliefs, opinions, and experiences the jurors bring into the courtroom with them.
Determine which of those beliefs or experiences are not good for the facts or issues in your case.
Make it as easy as possible for jurors to express any biases they have that will allow you to challenge them for cause.28
She specifically advises attorneys not to try to impose their own beliefs about their case on the jurors and not to try to change the closely held beliefs a juror may hold, because each of those strategies will only alienate the jurors and end any effective discussion produced on voir dire.29 Dr. Fraser also suggests that attorneys determine what each juror finds normal for standards, rules, regulations or laws, and tell the jurors what is normal for the issues in your case.30 Finally, Dr. Fraser advises that attorneys have someone else with them to take note of all group dynamics such as who the likely leaders of the jury will be and who on the jury will be easily swayed by others.31
There also seems to be a general consensus on the most effective ways to get a jury to talk during voir dire in order to maximize the use of your challenges in an intelligent manner. The three stated goals of jury selection are: (1) Gathering information; (2) Educating the jury about your case and the legal process; and (3) Rapport.32
When gathering information about potential jurors attorneys should follow a few basic rules that may be counterintuitive to the legal profession:
Ask open ended questions;
Listen – Let the jury talk;
Don’t talk like a lawyer;
Don’t be judgmental;
Listen – Don’t take notes;33
When educating the jury about your case and the legal process attorneys should make sure that they do not lecture, but rather make the jury think about what will be happening and what their job will be in the trial. The attorney should intersperse specific facts of the case with general questions to see how jurors react. It may be helpful to use current events as well to bounce juror opinions off of one another.34
Finally, in order to establish rapport with the jury, it is imperative that an attorney be honest about the issues that scare them the most such as insurance, frivolous lawsuits, damages for pain and suffering, prior injuries or medical conditions, value of a child or elderly person’s life, the players involved like the doctors and lawyers, and particular damages. Once these issues are on the table, more probing questions may be necessary to cement the juror’s bias and opinion so that it cannot be rehabilitated by a judge’s questions of fairness or impartiality. Finally, make sure that you thank the jurors for their honesty and frank discussion so that you do not alienate them once trial has begun.35
As attorneys, we are storytellers for our clients’ tragedies and are charged with presenting our client’s case to a “jury as impartial as the lot of humanity will admit.”36 Because of this, we have a duty to our clients to maximize our use of jury voir dire, now that we have the statutory right to do so. We must reject as well as select jurors through this process, and only through effectively dispelling the myths of the medical malpractice crisis and need for tort reform, can we properly represent our client and portray his or her tragedy to the jury.
Campbell, J., et. al, The Power of Myth (Doubleday Pub. Co.,1988).
The Merriam-Webster Dictionary, New Edition, 487 (1994).
Campbell, J., The Hero With a Thousand Faces, p.29 (Princeton Univ. Press, 1949).
Black’s Law Dictionary, 1575 (Sixth Ed., 1990).
Id. at 855.
See State v. Goding, 124 N.H. 781, 783 (1984).
Id. (quotation omitted).
Id. (internal quotation omitted).
Id. at 784.
Shulinsky v. Boston & M. R. R., 83 N.H. 86, 86 (1927) (decided under prior law).
Id. at 87.
Id. at 86 (quotation omitted).
Id. at 88.
See Leblanc v. Monadnock Community Hospital, Merrimack Co. Super. Ct. Docket No. 2003-C-555 (decided January 29, 2005) (Fitzgerald, J.)
Shulinsky, 83 N.H. at 87.
Id. at 88.
The Merriam-Webster Dictionary, Supra. at 160.
Id. at 762.
Shulinsky, 83 N.H. at 87.
See Macpherson and Rose, Obstacles to Persuasion in Opening Statements, (National Jury Project/Midwest, 2000) (presented at ATLA Toronto 2005 Annual Convention).
See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986).
See Levine, H., Levine on Trial Advocacy: Jury Selection, §§6:66 through 6:91 (West 2004); Ruth, R., Annotation: Propriety of Inquiry on Voir dire as to Juror’s Attitude Toward or Acquaintance With Literature Dealing With the Amount of Jury Awards, 63 ALR 5th 285 (2004).
Fraser, J., Inside the Juror’s Mind – The Psychology of Decision Making (ATLA Toronto 2005 Annual Convention Papers).
McGinn, R., Cause Strikes: How to Discover Jurors’ True Beliefs and Eliminate Those who Deny Justice (ATLA Toronto 2005 Annual Convention Papers).
Shulinsky, 83 N.H. at 88.