BY MATTHEW E. COOK AND KATE S. COOKWe recently tried a low-speed, one-level cervical fusion case in Cobb County and received a verdict of $2.7 million. This case presents issues that frequently arise in jury selection, including preconceptions about low-speed “whiplash” crashes, conservative venues, racial bias, pre-existing conditions, and resistance to significant pain and suffering awards. This article will focus on voir dire in such cases.
FACTS OF THE CASE
This case involved a 4.2 mph Delta V rear-end collision producing very little visible damage to our client’s car and no damage to the striking vehicle. Plaintiff declined medical treatment at the scene but visited an emergency room later that same day. After several months of physical therapy, an MRI revealed two cervical herniations. A one-level cervical fusion was performed approximately nine months after the wreck. Despite surgery, our client continued to require ongoing pain management. As of trial, our client’s treating surgeon had recommended additional surgery.
Our client, an African-American truck driver who was 31 years old at the time of the wreck, had suffered two previous minor neck injuries approximately 9 and 14 years prior, both of which were asymptomatic at the time of the subject wreck. At trial, Plaintiff had $127,000 in past medical bills; $20,000 in past lost wages; a future medical estimate of $201,000 and a future lost wage estimate of $37,000.
Voir dire is critically important in any case. It is the jury’s first introduction to the facts, counsel and, oftentimes, the overall litigation process. Great care should be taken in preparing your examination because the outcome of most cases is greatly influenced by voir dire.
First, determine how the process will unfold. Will the court allow immediate individual follow up questions after general questions or will it only allow individual questions later? Most judges prefer the former approach to expedite the process.
Second, structure your examination around the issues that you will encounter in the case, namely the expected proof and defenses. In formulating your questions, we typically divide our examination into “chapters” on each essential issue. This helps to organize your questions on a given topic, which you should begin to formulate and note as your case develops in discovery.
Third, be respectful in your interactions with jurors, but be careful of appearing as if you are trying to manipulate them. Do not talk to the panel like they are children or show over-familiarity. Jurors know you are there to persuade them – do so with the evidence and logic, not with supplication.
If you encounter a hostile juror, don’t argue with them, but do not wilt, either. If they express unnecessarily aggressive opinions, you should directly and immediately address them. For example, if a juror makes comments like “all lawsuits are frivolous,” or “plaintiffs are just money hungry,” you can respond with follow up questions like, “Is it your position that people have no responsibility to anyone even if they cause injury to another?” or, “Do you think sometimes people refuse to do the right thing just to save money?” Proper questions or responses to such jurors will prevent other panelists’ opinions on the issue from being unduly swayed, and provide you an opportunity to demonstrate the necessity of jury trials.
CHAPTER 1 – EXPERIENCE
WITH SIMILAR INJURIES
One positive note about a neck or back injury case is that you will find many panelists have some familiarity with such injuries. Those who have suffered a neck or back injury will understand the medical treatments and lifestyle changes necessitated by such injuries.
• “Does anyone currently suffer from a torn, ruptured or herniated disc or a pinched nerve in their spine?”
• “How did the injury occur?”
• “How long have you dealt with the injury?”
• “Have you ever had to undergo (surgery, epidural steroid injections, physical therapy, radiofrequency ablations, a discectomy, spinal fusion, etc.)?”
• “Has the injury caused you to alter any of your daily activities? Has it affected your job or your family in any way?”
• “Does anyone believe that a ruptured disc that requires surgery on your spine or near your spinal cord is a minor or insignificant injury?”
CHAPTER 2 – IMPACT
Insurers focus heavily on the severity or lack of severity of a given wreck and are firmly convinced that cases with minor impact damage are winnable. We disagree, but the details are important. For example, the plaintiff’s position in the vehicle at impact, the position of the headrest, or whether the plaintiff anticipated and braced for the collision are important details.
Address the fact of the low-speed wreck early and directly in voir dire. If you have your treating doctor testifying to causation, couple the low-speed crash with your questions on causation.
• “This is a fairly low-speed wreck – about 4-5 mph. Is there anyone here with particular expertise in any field – like an engineer, medical doctor or accident reconstructionist – who would be particularly qualified by that training to say that a 4-5 mph wreck CANNOT cause a ruptured disc if you are hit just right?”
• “How many of you have heard of wrecks at very high speeds – 40-50 mph – where people amazingly walked away with absolutely no injury?”
• “Conversely, have any of you ever heard of wrecks or other situations where people got seriously injured just because they were turned the wrong way or didn’t expect the impact?”
CHAPTER 3 –
Another favorite defense to a disc injury is the notion of pre-existing, degenerative conditions of the spine. If you’ve ever handled a herniated disc case, you are deeply familiar with this issue and should know how to head off those arguments in the depositions of your client’s treating doctors. You need to also deal with this ruse and distraction in voir dire.
• “The eggshell plaintiff rule means that if you hurt someone who had a pre-existing fragile medical condition that you cannot escape responsibility for the injury just because the injured person was weaker or more fragile than someone else. Is there anyone here who thinks that rule is unfair? Or who could not follow that rule because of some personal experience you have had?”
CHAPTER 4 – RACE BIAS
Unfortunately, racial bias remains a significant issue in our society, and the courtroom is not insulated from those concerns. Failure to address this issue can be a fatal mistake. Your approach can vary based on your case, venue, plaintiff and your individual personality. In cases we’ve tried for Hispanic clients, possible biases need to be discussed directly with the panel. You should lead into the discussion with something like, “Race is a difficult issue to discuss in public, but there is no political correctness in the courtroom and I need to talk to you about it.”
• “Some people have told me that my client’s injuries/pain/loss/life is worth less simply because they are a minority. Does anyone feel that way?”
• “Who agrees that there are some people of each race that you like and some you don’t? Will you agree to judge my clients based on who they are as individuals and not stereotypes?”
You should be vigilant for any Batson challenge opportunities where appropriate. Questions asked by opposing counsel, a pattern of striking persons of an identifiable group, and pre-textual excuses when such challenges are made, is crucial.
The good news is that most people are not racially biased when they are able to observe the individual character of a given person. It is your job to present your client in a way that reveals the quality of their character.
CHAPTER 5 – EXPERTS
In the recent case we tried, Defendants hired a biomechanical expert and an orthopedic surgeon. We relied on the treating doctors for causation opinions. Jurors understand the role of paid experts and have a natural distrust for them. You should explore such opinions.
• “Has anyone here ever worked as an expert witness? Has anyone earned any income (or all of your income) from being an expert witness for lawyers?”
• “How many of you typically accept your treating physician’s opinion on what is causing a particular ailment or condition?”
CHAPTER 6 – PAIN AND SUFFERING
Pain and suffering awards have been branded in the public as inflated and illegitimate. If the jury senses at any point that you are not worthy of belief, that you or your client are exaggerating, the pain and suffering part of your case will be diminished. In Cobb County, we chose to discuss pain and suffering as an element of one’s health using the language from the pattern jury charge.
• “How many believe that having good health and being pain-free is valuable?”
• “How many believe that if someone else negligently reduces your health or imposes pain on someone else, that there should be some consequences for doing so?”
Every case is unique, every panel is different, and you have to tailor your voir dire to each variable, including your own personality. Trials are about persuasion, which is accomplished by establishing credibility. That fight starts in voir dire. ●
About the Author
Matthew E. Cook is a 1999 cum laude graduate of Mercer Law School. He has handled a wide variety of plaintiff’s cases from catastrophic trucking injuries to medical malpractice actions. Kate S. Cook is a 2002 magna cum laude graduate of Mercer Law School. Kate has a broad range of experience in complicated class actions, construction site injuries and legal malpractice cases. Matt and Kate have tried several cases to verdict obtaining multimillion-dollar verdicts in each and every case tried before a jury. They practice together at Cook Law Group, LLC in Gainesville, Georgia and have cases throughout Georgia and the Southeast.