Navigating Voir Dire with Dennis Mulvahill

Sean Harris: Hello and welcome to OAJ’s Civilly Speaking Podcast. I’m your host Sean Harris, thanks for joining us. Today we have Dennis Mulvihill of the Wright & Schulte firm who will be talking to us about jury selection, Dennis, welcome.

Dennis Mulvihill: Thank you, Sean.

Sean: Dennis, tell us generally how you approach jury selection these days?

Dennis: My thought behind jury selection is you have to find the people during voir dire who simply aren’t going to listen to your case. And that is getting increasingly difficult when you have courts that don’t want to give you the time to actually find those answers. So really, from my perspective, the most important aspect of jury selection is weeding out the people who are tort reform group, that will not listen to the evidence, have made up their mind before they come into the courtroom and the challenge is that for the most part, they don’t even recognize that is their own mindset. So you really have to have some time to dive into it with them in order to figure that out.

Sean: Now you mentioned it a couple times there, the amount of time you have and really it is probably too late the morning of trial to start figuring out how much time. What do you do in advance of trial?

Dennis: Personally, at the first case management conference I talk to the judge about jury selection and anytime we are front of the judge or the staff attorney, I talk about voir dire and what the judge does in voir dire and why. If the judge isn’t willing to give us enough time, why it’s important to give enough time and start that discussion early so that you’re not surprising anybody the day of trial.

Sean: And how about motions in limine on this issue?

Dennis: Well it’s not so much a motion in limine because you’re not asking the evidence to be excluded or admitted but what you’re doing is getting the issue in front of the courts so certainly you can file a motion for expanded time if the judge has already told you that there is not going to be enough time to actually talk to the jurors or otherwise just file a bench brief on the issue, sure.

Sean: Traditionally voir dire was focused on trying to establish a relationship with the jurors. Is that your approach?

Dennis: No, that’s certainly the way we were taught going with the OATL and AAJ that you need to establish a relationship, that they need to like you and they need to like your client and really that’s all you can hope to accomplish. I think that if you do voir dire right, and you treat the jurors respectfully, they will respect you and maybe even like you but that’s not the goal of jury selection. The goal of jury selection is to find those people that simply won’t listen to your case and excuse them for cause.

Sean: I’ve heard people describe it as jury deselection.

Dennis: Right

Sean: Deselected folks that going to be the worst.

Dennis: I think that’s a fair way of saying it.

Sean: How do you get these folks to open up? Here they are and studies show that people are more afraid of speaking in public than death itself.

Dennis: I think you have to do a couple things. You have to start the jury selection with that in mind, Sean. You have to give them permission to say the socially repulsive. Nobody wants to say in a group of people, in public, in a courtroom, with a judge three or four feet higher than them in a blue or black robe that they can’t follow the law. Or that they can’t be fair and impartial. That is something that is very difficult for some people to do. So you really can’t go about it in a direct way. If you ask someone, “can you follow the law?” Unless they want to get thrown off the jury, they’re going to say yes. So you have to be a little more creative in how you ask the questions. So there is a challenge of getting to those questions in an indirect manner when you know a direct question won’t give you the answer that you need and won’t give you information you can work with.

Sean: So how do you do that in an indirect manner?

Dennis: Just depends on what you’re talking about. I think there are a lot of ways of going about it. One of my favorites is at least with respect to a statutory clause challenge. If they can’t follow the law, they can’t be on the jury and so one of the things you can talk about is burden of proof. Particularly if you have a higher value case where you are going to be asking for a lot of money and talk to the juror about whether it is civil burden proof is and the preponderance of the evidence. What a criminal burden of proof is; beyond a reasonable doubt. And you say something along the lines of “if I told you I’m already going to be asking for about $5 million with this case. Do you need something more than a preponderance of the evidence? Do you need more from me because I am asking for so much money?” It is much easier for the juror to say, “you know what, I do need more than what the law requires.” Rather than simply saying “can you follow the law?” which will always get an affirmative answer.

Sean: You raised an issue there that I want to ask you about. Let’s talk about the specific amount of money being discussed during jury selection. Sounds like it is something you’re pretty open about.

Dennis: I’m a big proponent of it. I think you don’t want to scare jurors at the end of a case if they’re not prepared for it. I think you can turn people off. I also think you what you do in jury selection, you can then do in opening and then you can also do in closing. You can then say, “listen, I told you three weeks ago, three days ago, five minutes ago, that we were going to be asking for X amount of dollars and here’s why. This is the evidence I’ve brought you to substantiate exactly what I’ve told you at the beginning of this case.” That way I think you develop a rapport because with jurors and particularly with the larger number cases that won’t award X amount of dollars, no matter what the evidence is and that’s another good way to go after a juror. If you have a case that realistically justifies a $5 million or $7 million verdict from the jury and you have people who just can’t give that money no matter what the evidence is. Jurors have a duty to follow the law and part of following the law is that they have to listen to and evaluate the evidence. If they are unwilling to evaluate the evidence because you’re going to be asking for something that goes beyond their preconceived range of acceptability then they’re not following the law and you can excuse for that as well.

Sean: I’ve heard some lawyers say that they’re concerned that if they give them a particular number in jury selection and the evidence comes differently, that I might have to change that number later on. Any concerns along those lines?

Dennis: Well sure, but then I would say that you don’t know your case very well if you don’t what the evidence is going to be in trial. Asking the jury for a number or telling them what you’re going to be asking for presumes you know what the evidence in trial is going to be.

Sean: Fair point. Looking back over your jury selection experience any memorable stories or answers that jump out in your mind from potential jurors?

Dennis: A few, and I would say there are no hard and fast rules on jury selection. You may get someone who you believe is a tort reformer anti-plaintiff-type juror but then they give you an answer that causes you to rethink all of that. You don’t have to exercise challenge clauses if you don’t want to. It’s a motion to excuse a juror and if you don’t want to raise the motion, you don’t have to. I’ve had some people who I otherwise would have immediately reflexively kicked off the jury or tried to kicked off the jury who gave answers toward the end of voir dire, that in my mind kind of rehabilitated them and I left them on the jury and it worked out. I remember one time I was in a very conservative county and we were talking about what caps should be on cases because it was a wrongful death case so there was no economic component, it was just pure the family lost their retired father and what the verdict was going to be assuming we won the case. This guy is someone I had a checklist of “I don’t like him, I don’t like him, I don’t like him,” and then I asked him what he thought the cap should be in the case and he said $25 million. That no juror should ever award more than $25 million and I wasn’t asking anywhere near that amount for this case. I left him on and it turned out he was a very strong juror for us who I would have otherwise excluded but for that answer.

Sean: I take it that the old theory of selecting jurors based on demographics is old-fashioned?

Dennis: I think it is not only old-fashioned, it’s potentially unconstitutional under Bateson v. USA. I don’t think you can make socio- with respect to race and gender decisions anymore. And I think that is probably your best argument for getting more time from the judge. If the judge is going to say you have 20 or 30 minutes to do voir dire then you kind of have to fall back into those old socioeconomic stereotypes which I don’t think work at all and you can really tell the judge, “listen, if you think that I can find out who’s fair and impartial in 25 or 30 minutes when I am talking to 20 or 30 people, you’re crazy and what you’re then going to ask me to do is perhaps make unconstitutional decisions about these people because you’re not letting me know anything about them and I am falling back to stereotypes.

Sean: In a case when you have limited time, are there topics regardless of the case that you know you want to cover?

Dennis: That’s the $64,000 question and I don’t know if I’ve completely figured that out yet. I think the hot button topics that really get people riled up in jury selection where you can really explore their biases are the amount of money you’re going to ask for, how they feel about lawsuits generally and whether or not they think if they make an award for your client that their costs, their insurance costs, their costs for products, those kinds of things, are going to go up. If you get affirmative answers to any of those, those are big red flags for people you really try to outta get for cause and if you can’t, than use your preemptory exempt.

Sean: Dennis, you mentioned a limited amount of time and I know that’s something a lot of trial lawyers are facing around the state for jury trials regardless of the size of the case or the length of the trial. How do you set up a judge in advance in order to get more time?

Dennis: A couple of things. You have to do it in the beginning as I mentioned. You have to start at the initial case management conference and that conversation has to continue every time you see the judge so you are priming the judge for it. I think you have to let the judge know, in my experience has been, that most judges want to limit time because A- they’re too busy or B- they think you’re going to argue your case or talk about your case. I don’t mention anything about the case, hardly at all. I don’t want the jurors knowing my case, I don’t want the jurors knowing my client, I don’t want them to know how badly my client was hurt because then I think you get fairer answers from the jury. They are not pre-influenced by what they think this case is about. If I come in the courtroom with someone who is horribly burned or horribly paralyzed, suddenly people who would be more willing to spill venom and hang themselves and get themselves off the jury are probably less likely because it becomes more socially repulsive to say they can’t be fair when you’ve got somebody who is horribly burned or sitting in a wheel chair. So the more they know about the case, I think the less likely they are to reveal their own deep seeded biases.

Sean: You want to know what they’re thinking before they hear anything about the case?

Dennis: As little as possible and that’s why I try to encourage the judge to do. So what I think what you have to tell the judge and this is what I’ve done with some success and some failure is I’m not going to be talking about my case. I am not going to be arguing my case. I am here to follow the statute and to follow the statute explicitly as to whether or not someone can be a fair and impartial juror, whether they will follow the law and it really is getting into their bias because everyone now has thoughts about things. I think we are more entrenched now in our own beliefs maybe than we ever have been and I think the various news organizations probably reinforce that in people’s minds. I think now more than ever we have to have time and I think you can bring that to the court and there are a lot of studies out there that talk about how once people have made up their mind about something, they’re not going to change it. I’ve actually brought studies to judges before and said here take a look at this; this is why I need time. We have to find these people. Listen, its one judge at a time, one trial at a time trying to turn the judges to allow us to have an appropriate amount of time to actually conduct a voir dire.

Sean: Dennis, how do you deal with jurors who are attacking you, attacking the client, attacking the system, just as you say spewing venom.

Dennis: I encourage it for the most part. I want enough evidence to take to the judge that Juror A, B or C has said enough to actually disqualify themselves from service under the statute. And I think there is very little risk of those jurors infecting other jurors. In fact, in my experience with some of the more aggressive jurors, the rest of the jury pool kind of laughs at how unfair they are. I think it really sets the tone. Now there is an exception to that, if your juror is an expert in the field. Let’s say for example you have a claims adjuster who has spent her or his entire career adjusting these claims and they start talking about how 95% of these are frivolous and it’s all bologna and everybody is just out to rip off the system. The jurors actually may listen to that juror because he or she is an expert in the field. Much like if you had a doctor in a malpractice case and the doctor has talked about how frivolous all of these cases are. The jurors may actually listen to that. But for the most part, encourage people to spew their venom. Ask who else agrees with that. Continue the conversation. The more venom you get the more chance you have to excuse jurors for cause.

Sean: Dennis, it is now the time on the podcast where we play 5 questions. Alright, I know you are not prepared for this and that is part of the fun. Question number 1: what is your musical guilty pleasure?

Dennis: I don’t know if I would call it guilty, but I definitely have a preference for 80’s alternative.

Sean: Question number 2: who do you want to play you in the move of your life?

Dennis: There is nobody who is interested in a movie of me, so that is nobody.

Sean: Not going to happen? If a movie was made against your will, who would you preference be?

Dennis: To play me in a movie? Manute Bol.

Sean: Perfect. Let’s just let that sit in and sink in.

Dennis: That is a joke, obviously. Everybody, everyday asks me how tall I am. He was the guy that came to mind as the tallest actor that could play me.

Sean: What is the most interesting job you’ve ever had, other than being trial lawyer?

Dennis: Interesting? I would say high school teacher.

Sean: Why?

Dennis: The day to day dynamic and dramas with the kids and their families.

Sean: How long did you do that?

Dennis: 2 years.

Sean: Question number 4: What was your first car?

Dennis: Chevy Citation.

Sean. What year?

Dennis: 76… I can’t remember the name of it, but it was a 1976 complete lemon. It was a Chrysler not a Chevy and it was in the repair shop all of the time.

Sean: Question number 5: True or False… you will try a case with that beard?

Dennis: False.

Sean: Dennis Mulvihill, thank you very much for being here.