BY LLOYD N. BELL, BELL LAW FIRM
Voir dire is the single most important phase of trial, followed closely by opening statement. Without an open and honest jury that is emotionally available and willing to receive your case, the likelihood of obtaining a favorable verdict is almost non-existent.But identifying your favorable jurors and striking those whom you determine are hostile to your case and/or client is only part of the goal of voir dire. The following discussion will address the process of “framing” your case through your voir dire questions to a) help reveal the favorable and unfavorable jurors, and b) set the favorable jurors on a cognitive path that most closely aligns with the values of your case and puts you in the best position to obtain a just verdict.
What is “Framing”?
The term “framing” gets thrown around a lot by trial commentators and means different things to different people. Framing has been used interchangeably with words such as “heuristic,” “schema,” and “theme.” In his book, Case Framing, Rhode Island trial lawyer Mark Mandell succinctly describes a case frame as “the fundamental principle that gives meaning to a case.”1 He identifies two essential qualities of a case frame. First, it must be relevant to the facts of the case, and second, it must be a principle that has near universal application to society.2
As I will use the term in this discussion, framing is the deliberate emotional structure that you erect around the facts of your case. For example, imagine visiting your client at their home. You walk into their living room, sit down on the sofa and see a framed photograph of their son in his Army uniform. Your emotional response might be admiration, respect, personal connection if you or a family member are prior service, or a myriad of other possible, likely positive, emotions. Now imagine you see the same photograph at your client’s home, but it is framed with a neatly folded American flag in the shape of a triangle, with an engraved, bronze plaque at the bottom that says: “1988-2014: Iraq.” You realize that your client has suffered the death of their son. Your entire emotional response to the photograph changes. In this extreme example, the literal framing of the photograph provides the emotional context by which you perceive the image.
Framing during jury selection is the careful and deliberate choice of questions that will not only reveal the factual information you need to intelligently exercise peremptory strikes, e.g. prior experience with lawsuits, past dealings with defendant corporation, etc., but also to test the emotional responses of jurors to the questions so you can evaluate their suitability as jurors in your case. Equally important, framing during voir dire conditions your favorable jurors to be receptive to the larger case frames that Mr. Mandell discuses in his book and that we will touch on in a moment.
How do you frame
the jury in voir dire?
Before addressing how an effective plaintiff’s lawyer frames the jury, it is important to recognize that experienced defense counsel also attempt to frame the jury against the plaintiff. How many times have we heard defense counsel ask some version of this question: How many people think that just because a plaintiff has filed a lawsuit, she is entitled to get some money? By asking this seemingly innocuous question, defense counsel is communicating several negative case frames. Defense counsel misleadingly frames the jury to believe that the relatively simple act of filing the lawsuit is the trigger “entitling” plaintiff to “money.” More accurately, the defendant’s negligence that caused the injury is what places the obligation on the defendant to pay money damages. Injecting the words “entitled to get some money” is also a negative defense frame designed to diminish the plaintiff by casting her as a money-grubbing person with an entitlement mentality.
For a plaintiff to frame the jury during voir dire, the trial lawyer must first identify the emotional triggers in the case, what Mark Mandell calls the “I just can’t get over issues” in the case. For example, a case may involve an on-call doctor who did not care enough about his patient to get out of bed and come in to see her in a timely manner. The frame is a medical professional who puts his own interests above those of his patients, and may lead to the following voir dire questions: How many folks have been to see a doctor in the past year? Now the jury is thinking about their experience with a doctor and are moving into alignment with the plaintiff who also went to the doctor. How many folks think that the level of care you receive from doctors today has gotten better than the care you received from doctors 20 years ago? How many folks think the care has gotten worse? Stayed the same? Not only are you learning valuable information about the juror’s personal experiences that will trigger further inquiry, but also you are framing the jury in a way that causes them to focus on the defendant doctor and explore feelings that medical professionals do not care as much about patients now in the age of managed care as they did in the past.
One of the most powerful case frames is Do Your Job. Whether the defendant is a truck driver, a safety manager, or a neurosurgeon, it is a universal principle that everyone must do their job. So when you have a defendant radiologist, for example, that misreads a CT image and fails to note a blood clot in the brain, the frame might be, “the doctor didn’t do his job.” During jury selection, you want to begin framing the jury by introducing the Do Your Job frame through your questions.
In this case, you are going to hear evidence that the doctor didn’t do his job when he misread a CAT Scan. How many of you have ever worked with someone who did not do their job and someone was hurt as a result?
How many folks work at a place where if they don’t do their job, someone could get seriously injured?
These questions are entirely appropriate under Georgia law because they are designed to gather facts necessary for you to intelligently exercise your peremptory strikes, but the added benefit of the questions is to introduce the case frames or principles to lead the jury down the proper path.
Another important, perhaps most important, case frame is System Failure. Jurors will tend to forgive simple mistakes such as failing to look in the right direction at the right time, or in a medical malpractice case, nicking an organ with the scalpel or over-tightening a screw. “Everyone makes mistakes,” I’ve heard jurors say. But jurors are far less forgiving if they perceive there are widespread system failures that endanger not just the plaintiff, but every other patient as well. A system failure might be a hospital that does not have adequate policies and procedures to ensure proper hand-off communications during nursing shift changes, so that critical information is not passed along and the patient suffers harm.
During voir dire, you might want to introduce this frame of System Failure by asking the panel, How many of you have ever played the game “telephone” as a kid, where you sit in a circle and try to whisper information to your neighbor that gets passed around the circle? How did those games end up? In a hospital, the medical professionals pass along a lot of patient information from one medical professional to another just like in the telephone game. What are your thoughts about how medical professionals should ensure information gets passed along accurately and does not end up garbled and confused like when you played telephone as kids?
By these questions, you are framing the jury to a key issue in your case, System Failure, by connecting it with the shared, common experience of the jury. Jurors now begin to wonder about and scrutinize the defendant hospital and wonder where the System Failure might have occurred that led to the plaintiff’s injuries.
Know Your Limits, is another powerful case frame that has application in all types of cases. In medical malpractice cases, it is increasingly common to see family care physicians working as “hospitalists,” the gatekeepers at hospitals who admit patients from the emergency department to the main floor. In my experience, these hospitalists often do not have the neurological training to recognize stroke signs and symptoms, which can have disastrous consequences for the patient. Know Your Limits can be an effective case frame to underscore the importance of calling for a specialist consult when the patient has a neurological condition consistent with stroke. The Know Your Limits frame can be introduced in voir dire with questions such as:
How many folks have ever worked at a place where a co-worker did a task that was beyond their training and expertise and caused someone to get hurt? Anyone ever heard the expression, “you have to know your limits?” What does that mean to you? Why is it important to know your limits?
In a trucking case, where the defendant driver is accused of driving while fatigued, the Know Your Limits frame might revolve around knowing when to pull over and get some rest. Again, the Know Your Limits frame has universal application and will resonate with just about all potential jurors.
As with most things in life, success at trial is a function of the preparation that takes place long before you show up at the courthouse with bankers boxes. It is critically important to do the hard work of identifying the case frames for all phases of trial, liability and damages. Focus groups are essential to this purpose because they provide the trial lawyer an opportunity to not only test possible case frames on “real people” who may approximate a jury, but also because focus group members can offer frames that you may have overlooked. Once you have identified the critical case frames, you should carefully craft your questions for voir dire to introduce your frames and set your jury down the proper path ultimately leading to a just verdict for your client. ●
About the Author
Lloyd Bell is an experienced medical malpractice trial attorney who has been lead counsel in over 75 civil jury trials over his 25-year career. After graduating with honors from the Virginia Military Institute, Mr. Bell attended Mercer University Law School where he graduated in 1992. Upon graduation, Mr. Bell began his legal career in U.S. Army JAG Corps, serving four years on active duty, first as a prosecutor and later as defense counsel where he represented soldiers accused of crimes.
1. Mark Mandell, Case Framing (Trial Guides, LLC 2015).