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Voir dire tips for med-mal cases

Every trial lawyer knows how important it is to pick a good jury.

Voir dire gives attorneys the opportunity to unearth biases and winnow out jurors likely to vote against their clients.

In medical malpractice cases, questions posed during voir dire can identify potential jurors’ feelings about lawsuits and damages in general. It’s also a chance to unearth beliefs about physicians and the medical profession, as well as the patient’s role in the health care process.

Lawyers USA asked several veteran trial consultants and plaintiffs’ trial lawyers to share their favorite voir dire questions in med-mal cases, and to explain how those questions can increase the odds of a courtroom victory.

Here’s what they said:

Carl Bettinger, Shapiro Bettinger Chase LLP, Albuquerque, N.M.

Is what you do as a juror important, or is it just a waste of time?

“I like this question because I want the jurors to start feeling the power that they have to alter lives,” Bettinger said. “It gives them permission to speak up about tort reform and allows the attorney, who is willing to listen, to really explore what’s going on not only with the individuals, but with the group.”

Are old people really worth anything?

“In a medical or nursing home case, one of the difficult issues is getting jurors to look at the value of life, any life, and its loss or the harms to it. This question stimulates discussion on both sides, especially if the lawyer is willing to play ‘devil’s advocate’ and argue for the other side,” he explained.

How many people feel as though there has been a loss of trust in our world? What has been your experience with this?

“I want the jurors to start reflecting on the injustices and betrayals in life, as these are often common themes in my cases,” Bettinger said.

Paul Scoptur, Aikens & Scoptur, Milwaukee, Wis.

Has anybody ever been in a position to bring a lawsuit and chose not to?

As both a trial lawyer and consultant, Scoptur views voir dire as a chance to identify jurors who have what he calls the “stuff happens” attitude.

“There is an attitude some jurors have that, ‘It’s just an accident; it’s nobody’s fault; stuff happens,'” he explained. “One way to flush that type of juror out is to ask that question.”

While conducting a focus group recently in a med-mal case in Connecticut, Scoptur asked that question and was told by one juror: “My son lost his hearing, and we could have sued, but we chose not to. Our focus was to help him get better.”

“He literally said, ‘Stuff happens,'” Scoptur recalled.

The answers confirmed Scoptur’s belief that this question is a surefire way of identifying a juror who would never give a favorable verdict to a plaintiff, no matter what the evidence.

Steve Yerrid, The Yerrid Law Firm, Tampa, Fla.

How many of you understand the concept of running a medical stop sign?

This is one of a series of questions Yerrid uses to explain the concept of medical malpractice. He explains to jurors that if a motorist runs a stop light, “It doesn’t mean the motorist is a bad person. It simply means they have deviated from what we consider acceptable conduct.”

He then explains, “In the medical world, a medical mistake is called medical negligence.”

People don’t like the label “malpractitioner,” Yerrid continued. So, he simplifies the concept of medical negligence so that jurors can consider the possibility that a good doctor made a mistake.

Mark Kosieradzki, Kosieradzki Smith Law Firm, Plymouth, Minn.

Take your biggest weakness of the case and ask the jurors what their position is on it, head on.

For example, he said, in a case about a family suing a nursing home for the death of their 85-year-old mother, ask: “Is there any evidence you would consider for awarding damages for the death of an 85-year-old woman?”

If the answer is “no,” then you’ve saved yourself a lot of time by removing that person from the jury, he said.

“So many lawyers are afraid a bad answer is going to poison the jury,” Kosieradzki remarked. “Those jurors are poisoned already. What you need to do is find out which ones they are.”

Rodney Nordstrom, Litigation Simulation Services, Peoria, Ill.

Nordstrom, a trial lawyer and litigation psychologist, said that voir dire questions “must be designed to advance your case theme, and then link it to jurors’ life experiences.”

Here are a few questions Nordstrom suggests a plaintiff’s attorney consider to advance a med-mal case:

What is your definition of ‘quality medical care’?

How many of you check the Internet about your medical condition before you seek medical care?

What is a doctor’s primary responsibility?

Remember, Nordstrom added, that it’s not so much the particular answer to a question, but the information and rapport that is developing with potential jurors.

Questions or comments can be directed to the writer at: nora.tooher@lawyersusaonline.com