A prospective juror that expresses strong opinions on issues adverse to a case can be a critical landmine during voir dire. Such opinions risk swaying other members of the venire. However, during jury selection in a 2018 medical malpractice case, Nick Rowley upended a prospective juror’s pro-tort reform stance when introducing his damages claim.
During voir dire in a Washington State Court trial over claims that medical negligence led to a child’s catastrophic brain damage, Rowley, of Carpenter, Zuckerman & Rowley, introduced the issue of non-economic damages. He noted he believed the evidence would show an award of “tens and tens of millions of dollars” was warranted.
When Rowley asked if the possibility of that kind of award offended anyone, one prospective juror took center stage.
"I would be for tort reform,” the prospective juror answered. “Trying to limit the monetary … penalties, I think would be in my best interest, and everybody’s best interest. So I have a strong feeling about [that].”
“There are states that have caps on damages, and tort reform states,” Rowley replied. “And, brutal honesty, if there are tort reformers on here, those of us on this side want to know.”
In answering the man, but for the benefit of the rest of the pool, Rowley then went on to characterize tort reform as giving politicians the ability to dictate damage amounts, as opposed to allowing a jury to decide the appropriate award.
“Is there anyone here who… wants tort reform, [where] it could affect you as a juror on this case? [Do] you want to give politicians the ability to make decisions about damages for injury victims and families, or do you want to keep it within the scope of the ability and power of the jurors in the community... [to] decide?”
The questions seemed framed to make it easier for the panel members to come out against tort reform. And they led another prospective juror to answer that she believed damages should be determined on a case-by-case basis.
“Raise your hand if you’re in agreement on that,” Rowley said, working to isolate the pro-tort reform opinion. “A case-by-case basis. Leave it to the community.”
Rowley then turned back to the tort reform supporter. “Would you leave room for the possibility that those who have convinced you that tort reform is the right thing might have given you some misinformation?”
Still, the man pushed back, noting that his wife was forced to carry malpractice insurance, and jury awards he considered “exorbitant” had influenced her rates.
Rowley responded, again likely as much for the rest of the pool as the man he was answering, that those who have equated large damage awards with increased malpractice rates were misinforming people like the man’s wife.
Nonetheless, Rowley asked, “Is the fact that your wife has paid a lot of money for malpractice premiums, is that something that you think could influence you here, make you biased in their favor and against us?”
“Well, it factors in, yes,” the man replied, before saying that he would not know how he felt until he heard a specific damage request following evidence.
“Will you keep an open mind if you end up on this jury?” Rowley pressed. “Will you give me a chance to show you why this could be worth tens of millions of dollars for a little girl?”
“That’s all I ask for is an open mind,” Rowley said, when the man acknowledged he could.
The exchange helped efficiently blunt the man’s pro-tort reform argument and likely kept it from swaying other jurors.
Ultimately the parties settled the case after opening statements.
Email Arlin Crisco at firstname.lastname@example.org.
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