A guide for trial lawyers advises them to be wary of Americans with "extreme attitudes about personal responsibility" when selecting jurors in personal injury lawsuits. The author of the guide says such jurors typically "espouse traditional family values" and often "have strong religious beliefs."David Wenner is a trial lawyer and nationally recognized expert in identifying alleged biases in potential jurors. The Association of Trial Lawyers of America (ATLA) named the former psychotherapist co-chairman of its "Blue Ribbon Committee on Juror Bias" and included a chapter on the topic written by him in ATLA's Litigating Tort Cases , the industry's guide to winning product liability, medical malpractice and other personal injury lawsuits.
In his writing, Wenner accuses those who support tort reform of "stealing" the message of personal responsibility from plaintiffs in personal injury lawsuits. Because of the existence of a "personal responsibility bias" among many jurors, he suggests, "reframing personal responsibility as the plaintiff's message." But some jurors, Wenner believes, are more difficult to convince than others."It is helpful to divide the jurors into two groups: the personal responsibility group and compassion-altruistic group," Wenner wrote. "Jurors who are extreme on the personal responsibility bias, or who have a high need for personal responsibility, will strongly favor the defendant. In contrast, jurors who are extreme on the compassionate-altruistic bias, or who have a high need for compassion, will strongly favor the plaintiff."Based on his research, jurors who believe in moral absolutes tend to have what Wenner called a "personal responsibility bias."The personal responsibility juror tends to see the world with bright line rules on how people should act," Wenner wrote. "People should be self-reliant, responsible, and self-disciplined. When people act irresponsibly and are not self-disciplined, there are consequences. People must be accountable for their conduct."Such jurors, Wenner believes, are likely to question whether the plaintiff could have done something to avoid the injury they suffered."The motto of these jurors is that if a person is committed to personal responsibility, then he or she must first accept blame before blaming others. That means playing the blame game is unacceptable if the plaintiff was in the best position to avoid the injury," Wenner wrote. "If the plaintiff has not been completely responsible, do not expect the personal responsibility jurors to find for the plaintiff, even though the plaintiff may have been only partially at fault."Potential jurors "who hold extreme attitudes about personal responsibility," Wenner found, also tend to share a common belief system."The personal responsibility jurors tend to espouse traditional family values," Wenner continued. "Personal responsibility jurors often believe that when someone harms you,the best response is to turn the other cheek.
A lawsuit is viewed as revenge and unproductive ... often, these jurors have strong religious beliefs."If such a "bias" appears insurmountable, Wenner suggests that the plaintiff's attorney take decisive action before it's too late. "The only solution is to identify these jurors during voir dire and exclude them from the jury," Wenner concluded. Voir dire is an archaic French term for questioning potential jurors.Rob Boston, spokesman for the liberal advocacy group Americans United for Separation of Church and State is troubled by Wenner's inclusion of religion in his profile of "personal responsibility jurors.""Certainly a good lawyer will try to ferret out any evidence of prejudice, whether it's religious prejudice or racial prejudice, prejudice against women, whatever, that's legitimate," Boston said. "But, for a lawyer to simply assume that certain religious beliefs will dictate certain behaviors is naive and I think it does a disservice to our legal system."
Boston believes many potential jurors would react negatively if they were aware that their religious beliefs were being evaluated as factors in determining their fitness to decide a case."Although I know jury duty isn't the most favorite pastime of the American people," Boston explained, "I think a lot of folks would be pretty angry if they felt that they were being summarily excluded because of what they believe or don't believe about God."Todd Young serves as policy director for the Southeastern Legal Foundation, a conservative public interest law firm. He called the prospect of even considering potential jurors' religious views "incredibly dangerous."There used to be, many years ago and to the great shame of this nation, the exclusion of minorities and women from juries. That has since been found unconstitutional and rightly so," Young recalled. "It's beyond bold that the trial lawyers' association or people speaking on their behalf would suggest [eliminating] people of faith from juries."That is akin to saying, 'there's a black person, strike them [from the jury pool] because they're black,' or 'there's a woman, strike her because she's a woman,'" Young said. "[Will they say,] 'There's a Christian,' or 'there's a Jew' or 'there's a Muslim,' strike them because they're Christian or Jewish or Muslim? It's incredibly dangerous."
In an interview with CNSNews.com , Wenner insisted that discriminating against people of faith has never been his intention."That's exactly the opposite of what I was suggesting. In fact, my mother would be really upset that she spent all that money on bar mitzvah lessons for me if that's what I had meant," Wenner said, laughing.The goal of identifying potential juror "bias" based on religious beliefs, Wenner said, is to insure that people of faith avoid what he believes in an unfair crisis of conscience when their religious teaching contradicts secular law."You are now asking that person to make a choice between their religious beliefs and the laws that exist in your specific state," Wenner explained. "Why should they have to be put in that position?"The psychotherapist-turned-trial lawyer said if such a conflict becomes apparent while interviewing potential jurors, he acknowledges it."I say, 'you know, Mr. So-and-so' or 'Ms. So-and-so, that's perfectly okay to have that belief.
You have every right to believe that and to think that and, from your standpoint, it may be the right way to believe. That's okay,'" Wenner said. "I say, 'but, because of how you feel, Ms. So-and-so, don't you think it would be better for you, and for this plaintiff who has a right to bring this case, for you to sit on ... a different type of case where it doesn't ask you to choose between what the civil justice system says is allowed and your religious beliefs?'"His job during the pre-trial process, Wenner explained, is "to pick a jury that is going to start the case and give each side a fair hearing on the evidence without too many prejudgments influencing the decision-making process."That does not mean, Wenner stressed, that plaintiffs' attorneys should have any less respect for potential jurors with deeply held religious beliefs."Lawyers shouldn't vilify jurors or be suspicious of them because of their beliefs," Wenner said. "On the contrary, I teach [attorneys] to accept [jurors] where they are and to use those [beliefs] to help [jurors] understand the world they live in, so [attorneys] can better communicate with [jurors] rather than trying to change them."Mario Mandina is chief executive officer of the National Lawyers Association (NLA), which bills itself as "a national bar association, organized to improve the image of the legal profession, to advance legal institutions and respect for the law, and to educate the public on such matters." The group has become a refuge for conservative attorneys displeased with the liberal positions often taken by ATLA and the American Bar Association (ABA).
While Mandina understands that people of faith might be offended by Wenner's advice, he said the principles are not as controversial as many might believe."If you're going to put out a book to tell lawyers to pick good juries to get you money for your clients, you've got to tell them the truth," Mandina allowed. "Unless it was derogatory, I couldn't fault somebody. If you're going to do that, you'd better do it right, or you'll get sued. You couldn't ignore the obvious."Mandina explained that the primary duty of a lawyer is to represent his or her client "within the bounds of the rules of ethics."As an officer of the court, he or she is empowered or expected to notify the court of any violations of the code of ethics and not to present perjured testimony," Mandina said. "If it crosses that, you've got a duty [to report it]. But say it doesn't cross it? Say it just gives you a choice between an extremely liberal panel or an extremely conservative panel? No lawyer worth his salt would ignore those factors."But the duty to one's client would be no excuse, Mandina said, for attorneys to make sweeping generalizations about people of faith serving on juries. Mandina is concerned that some trial lawyers are moving in that direction."They may start asking questions like, 'Do you believe in the Ten Commandments?'
Someday, the way this country's going and, if you raise your hand, you would be automatically excluded," Mandina speculated. "If you can't set aside, for example, your personal views of Christianity - which no true Christian could do - then you'll be excluded from the panel. Those days are coming if things don't change in this country."Wenner agreed that jurors should not be excluded merely for their religion. But he still contends that there are some potential jurors who will not or cannot work within the system."There are a lot of people out there who have very, very, very strong feelings about the jury system today, who can't be fair because of their beliefs," Wenner claimed. "That presents a problem for the trial lawyer."The attorney's goal, Wenner contended, should not be to stack a jury in favor of his or her client, but to strive for an objective hearing for their side of the case."I'm not asking for a biased jury and I'm not teaching people how to get a biased jury. I would not want to see other people teaching [attorneys] how to manipulate a jury," Wenner said. "All I'm asking for is a fair jury."
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