Voir Dire in Insurance Litigation: Avoiding an Adverse Jury
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Prior to trial, an insurer, like any party to litigation has a right to “conduct a reasonable examination of each juror orally.” Fla. R. Civ. P. 1.431(b). The goal of this examination is “to obtain a fair and impartial jury, whose minds are free of all interest, bias or prejudice.” Hoskins v. State, 965 So. 2d 1, 13 (Fla. 2007).
Trials can be won or lost before they begin, during voir dire. Voir dire provides for an opportunity to eliminate prejudiced or otherwise unfavorable jurors and to persuade and build rapport with the jury. It is critical that attorneys and insurers involved in voir dire understand how to effectively question, evaluate, and communicate with prospective jurors.
Uncovering jurors’ thoughts and preconceptions is crucial to effective voir dire
To effectively evaluate a jury, counsel needs to understand the jury pool, their preconceptions that may impact the case, and any potentially prejudicial positions they hold. Only then can an insurer’s counsel effectively decide when and how to make effective for-cause or peremptory challenges to eliminate unfavorable jurors.
Understanding a juror’s value systems allows insurers to anticipate how they will react to issues of the litigation. To determine a juror’s value systems, attorney’s in voir dire can question what the jurors admire, what television shows they watch, what books they read, what organizations they are members of, and what hobbies they have. While this list is certainly not exhaustive, these questions are effective because each answer provides attorneys insight into what the given juror believes and values.
Generally, in insurance litigation, insurers should favor jurors that place a high value on agreements, business relationships, logical reasoning, and personal responsibility. Insurers likely should avoid jurors that place a high value on companionship, property, and convenience. Insurers likely should favor a juror who says they admire politicians, industry leaders, and inventors, over a juror who says they admire family members when questioned.
Insurers should favor jurors who provide answers that reveal a logical, rather than emotional or visceral approach to the world. To determine how jurors approach the world, insurers should consider the jurors value systems, work or educational experience, and how the jurors describe themselves. For insurers, juries prone to strong emotional attachment and responses are often unfavorable.
Insurance litigation is about money. Understanding jurors’ thoughts and preconceptions about money is critical to effective voir dire. It is important to understand a juror’s frugality, the extent of their understanding of the value of money (interest rates, present value, etc.), and their thoughts on money as compensation for nonmonetary damages. Often jurors will impute their own thoughts about money onto plaintiffs. Frugal jurors or jurors who are meticulous and organized with their finances may be less likely to excuse an insureds failure to pay a premium regardless of the proffered reasoning.
It is also important to understand if the juror typically makes financial decisions. If the juror does not typically make financial decisions, it may indicate passivity and they may play a less influential role in jury deliberations. If the juror has previously been a foreperson of a jury or previously been on a jury, they may be more likely to be foreperson of the jury. Questions that reveal the activity and passivity of jurors in group settings are crucial when it comes to insurers and attorneys exercising their challenges. Insurers and attorneys who are capitalizing on the opportunities available to them in voir dire will exercise their challenges in a manner that will increase the likelihood of a favorable or neutral foreperson of the jury.
The insurers preferences for a juror type identified here are general, the specifics of a given case will ultimately alter the preferred profile for a juror in the associated litigation. In some cases, mock jury research may be appropriate. Regardless of juror preferences, it is important that insurers and their counsel identify a preferred juror type. During voir dire, an insurer’s counsel must execute a strategy to identify a juror’s thoughts and preconceptions and to effectively challenge potentially adverse jurors.
Avoid misunderstanding and misinterpretations: a focus on how questions are asked
First and foremost, when asking a question, it is often worthwhile to ask why the juror has answered the question in the way they have. The type of reasoning employed is often more revealing than the answer itself. Additionally, to ensure that the answer is correct, it is crucial that the insurer’s council minimize the risk of any misunderstandings.
Attorneys often use legalese when they speak, particularly in cases involving industry professionals often enthralled in litigation like insurers. It is important that attorneys limit or eliminate the use of legalese during voir dire. Most jurors will not understand legalese and those that do may have an understanding that differs from the intended understanding.
When communicating with jurors, most attorneys avoid legalese through the use of metaphors. While metaphors are undoubtedly useful, attorneys need to be particularly weary of misunderstandings that can result from the use of metaphors. Metaphors can be interpreted in multiple ways. In cases where there are multiple interpretations of a metaphor used in voir dire, the juror will be presumed to have answered in the manner that did not indicate prejudice. See Weinstein Design Grp., Inc. v. Fielder, 884 So. 2d 990 (Fla. Dist. Ct. App. 2004). Thus, in evaluating jurors and setting the stage to assert challenges, it is crucial that attorneys are careful in their use of metaphors.
Metaphors that many believe are “common knowledge” may not be easily understood by every juror in the room. The most common examples of such metaphors are those that revolve around sports – a strike, being behind the 8 ball, being blind-sided. While these metaphors are common, they require a base of sports knowledge to fully understand. A juror who’s never played pool may not understand that being behind the eight ball is a bad thing, or that the eight ball represents an obstacle between the player and their objective.
Further, if there are multiple possible interpretations of the metaphor, metaphors can lead to misunderstandings. While the Fielder case cited above represents one such example in the context of having an “edge,” there are many examples of misunderstandings due to multiple interpretations of metaphors. A “strike” (which again requires a base of knowledge for the jurors to understand) is bad for a batter but good a bowler. An individual who is a “shark” may be vicious, simply talented at a particular game like pool or poker, or both.
While many jurors will have the requisite base of knowledge and will understand the intended meaning, some will not. Insurers and attorneys should limit the use of metaphors when possible, particularly those that require a base of knowledge or that can have more than one meaning. The best practice is, immediately after using a metaphor, ask the juror to explain what they understand the metaphor to mean. Metaphors are often used because the concepts attorneys and insurers are attempting to convey are complex. It is often easier to have a juror explain the meaning of the metaphor in a vacuum than to have a juror convey an understanding of a complex concept.
Voir dire: who the decisionmakers are matters
Voir dire is only useful for insurers if they and their counsel effectively determine a juror’s thoughts, values, preconceptions and prejudices. Misunderstandings, legalese, and poor questioning can hinder or eliminate the usefulness of voir dire. It is important that insurers and their counsel understand how to effectively question and analyze prospective jurors so they can challenge adverse jurors. Effective voir dire techniques can be determinative in insurance litigation. From damages to liability, who the decisionmakers are matters.