Jury Selection - Really Deselection

You get a letter in the mail and it informs you that you need to be at the courthouse on a certain day and time to serve as a juror. You win!!! Make sure you show up on the right day and on time. It is also a good idea to take a book or something to do while waiting. It is a great thing in our country that we have the chance to serve as a juror and if you have ever been involved in a case it can be down right scary as to how the actual jury which hears the case is determined. First of all it is called jury selection, but that is completely wrong. It is actually jury de-selection. Attorneys get to argue to the Court that certain potential jurors are not suited for this particular case and they can be excused. They also get to strike (get rid of) a certain number of potential jurors just because we don't like a particular answer they gave or attitude even if there is not enough grounds to get rid of them for cause (evidence that they can't be completely fair in this trial). What does that mean -- fair? Not have any bias or prejudice. Not much help huh! The problem is it depends on the each case. A person may be a great juror in one case and terrible in another. If you had been robbed and were called to be a potential juror in a robbery case you might not be able to be unbiased, but in a business dispute it might be fine. What happens when you show up for jury duty? I can give you some information about Fort Bend, Harris, Brazoria, Wharton and other counties in Texas (as well as some other states), but most are fairly alike. You are generally initially selected by driver’s license and/or voters registration. You show up and they ask you to verify the information they have and fill out some more information which will be provided to the attorneys if you make it that far. They first qualify you which means they make sure you still live in the county, are not disqualified (not a felon or medically unable to participate) and do not choose to take a waiver (young children at home, student, etc.) Once you get that done, you wait. As the Courts need jurors they call names out and those people leave and go away?? Where? What happened to them? Is it better that you are still there?? If you are never called you are excused and get to leave. If you are called you are taken to one of the Courts where you will form the jury panel. It could be a criminal or a civil case which you find out when you get to the Court. The attorneys will have had about 5 seconds to review all the information that every potential juror provided as the Court explains a little about the case who the attorneys are and what will happen. Still in the dark, not surprising! At this point the attorneys begin vor dire. They get to ask you questions to see if you are the right person (in their mind) to serve on the jury. What each party really want is every juror to believe them and rule in their favor, but what we hope for is a jury that can be fair. How do we get there? We ask questions which we hope will allow us to learn a little about you to determine who we need to get rid of. We don’t get to select who we like. We get to get rid of some - ask the Court to get rid of some - and the first 6 or 12 (depending on Court) people left after all sides are done make up the jury. So in reality if you are on the jury it is because there was no good reason to get rid of you. I know you really want to know how to improve your chances of not ending up on the jury.
First – Do not just sit there quietly hoping no one will notice you. They won’t which means no reason to strike you and you end up on the jury.
Second – Tell the truth and answer the questions that are asked. If you do that and you end up on the jury it is a good thing and you will appreciate it if you ever have to be in a trial as that is the type of person you would want.
Third - If you are not comfortable with being a juror in that case let the attorneys know why. If it is personal ask to go up to the bench for a private conference with the judge and jury. No one wants a person on the jury who should not be there.
Question I have heard from potential jurors (not about me- I hope.)

Why do lawyers ask such stupid questions? Not a clue. Sometimes they have a reason for a question that doesn’t make sense at the time, sometimes it is just stupid.

Why do they argue with me about my answer? I really don’t know. Not only is it not smart, but it doesn’t get you any useful information. If I don’t agree with an answer a juror gives, I just make a note of it and move on.

Why won’t they answer my questions about… insurance, police report, etc. There are specific rules as to what attorneys are allowed to discuss and what we can’t. In an injury case we are not allowed to discuss anything about insurance, whether it exists (auto or health) what discussions, if any went on, etc. The police report and what they found may or may not come in depending on several issues. So if a lawyer will not answer you or avoids the question, it is probably because he is not allowed to discuss it.

Finally, don’t try to get off a jury panel. It may backfire. I have had jurors flat out lie and everyone knew it. Had an astronaut claim he wasn’t one and just an engineer. Everyone in the courtroom knew him and that he was an astronaut, but he kept swearing he wasn’t. The court called the lawyers up and said he didn’t know why he would lie, he was going to excuse him but also had lost all respect for him. We saw him the next morning on TV doing an interview. I also had a man claim he was a welder, but had a manicure and didn’t know much about the ins and outs of welding. Turns out he owned several welding companies and wanted to get on the jury to “stop the crazy verdicts”. He was struck. But how do you think he would have felt if his company was sued and a juror lied to get on to “make sure he lost”. He would be rightfully furious, but saw nothing wrong in his actions. I have also heard of jurors getting off a panel which would have been only a 1-2 day trial only to end up on a month long murder case. So tell the truth and generally it will all work out as it should. Hope this helps in jury de-selection understanding. If you have any other questions, about jury selection let me know. Next time we will talk about things that happen in trial.

Let me know your experiences with jury duty or jury selection?

Voting - parties - judges

You still have a few days left for early voting. The lines are small and the weather is great so no excuse. Voting early is easy. Voting is your right and duty, so get out there and do it! Take action on who will be in charge of your community, state and country. The Democrats and Republicans parties are out doing what they should which is pushing for their candidates and a straight ticket vote. I don’t vote straight ticket because neither party has every candidate that I support. To be clear, I am fed up with both of the major parties. On the state and national level, each party talks about how the other will destroy the country, taxes will go up, morals will collapse, etc., etc. but it appears what the parties really want is to continue the status quo of making sure they get in office and stay in power. If the politicians are really serious about doing what is best for our country they should do what all of us have to do - don’t spend more than you have –period. Further if you pass a law you should have to live by it. You want new health care for the country? Great! Dissolve your current government provided plan you enjoy and live under the program you enacted into law. You want to change retirement fund regulations? Then do the same for your plan. Don’t tell us we have to cut back and be more conscious of our environmental footprint and then hop on your jet and fly around the country. How about calling Southwest and booking a flight like the rest of us and really saving some money? They won’t even charge you for all that baggage:>) They will even set you up with a rapid rewards number where you will get to fly free after a few of your vacations- sorry fact finding missions.
So what does all this mean to us voters? Look at the person not the party. How many times to we have to see someone elected who is not qualified just because he or she is in the --------- party? We have lost great people because they were voted out on a sweep in the judiciary by one party or the other. I have heard people say that I don’t agree with everything they are doing, but they are better than the other party. Stop!! Why are we settling for they are not as bad as the other instead of demanding the best from our elected officials. So when you are voting, before you pull that straight ticket - just think and look down the list. Then ask yourself: Do I want this person to decide my JP case? Do I want this Judge to be the one to decide my family’s case? Who is this clerk and what do they want to do or change and what are their qualifications? This brings me to Judges and their election.
In Texas we get to vote for our judges. I am a firm believer that is the right way to go. But it means you have to actually do some thinking before you vote. Judicial candidates are almost always associated with some political party. However; I suspect most of them would prefer to just run on their qualifications if they could. So each election we get to select judges based upon ----what?? If you don’t practice in front of them and/or know them you may get a sound bite here or there or a five minute speech at a meet the candidate event. I have had the great privilege of being a trial lawyer for almost 25 years and have had cases before Courts around the country and specifically Fort Bend, Harris, Brazoria, and Wharton Counties. There are some great judges and some great candidates for judges in races in these counties. But how do you know who to vote for? Ask a trial lawyer. We are before the judges on a fairly regular basis and if we don’t know a judge we call around to anyone we know who has been before them before we go to a hearing or trial in that Court. Why wouldn’t you do that before you vote to have someone make decisions which will impact you and your family for years to come? I am constantly amazed when one of the parties put up a candidate who is technically qualified in that they are a licensed lawyer, but has virtually no trial experience. Every lawyer has to start somewhere and get experience. I am all for that and court room experience is something that can only be gained through time. However we are not talking about hiring a lawyer. We are talking about voting for a judge. I firmly believe a candidate should have trial experience and should have practiced in the court (district, county, jp) that they hope to be elected to. What do I look for in a judge?
If the candidate is an incumbent I want to know how they have ruled on motions. Do they follow the law? Do they treat lawyers, court personnel, witnesses, juries, etc. with respect? Do they move their dockets, but understand that justice can require continuances to make sure all the parties have adequate time to gather their evidence? Do they treat all parties equally? Do they use common sense along with the law? Do they allow lawyers to do their jobs representing their clients while following the rules of procedure? What do other lawyers say about the judge? Finally what is it about the current judge that causes you concern about their ability to continue? If they are doing a good job why would you replace them simply to put someone from a different party in office?
If the candidate for judge has not sat on the bench previously I want to know how much trial experience they have? Who knows them and what do those lawyers say about them? How are they perceived by the lawyers they have tried cases against? Do they know what they are doing? If they tell you something can you believe them? Do they have an agenda i.e. do they believe all personal injury cases should be thrown out or conversely that all personal injury claims are valid and should result in a recovery? Do they believe that anyone charged with a crime is guilty and should be convicted or alternatively that most persons charged are probably wrongly charged and should be dismissed? I believe judges should follow the law and apply it to the case in a fair and impartial manner.
Finally what is the candidate’s qualification to be a judge? The fact that they have not been one before is not an issue. Obviously until they are elected (or appointed) they will not have had that experience. If you take all the other information gathered from lawyers that have been against them or worked with them you should have a good idea of their ability and qualification to be a judge.
In all this ranting, information, questions, etc. about how to select a judge did any of it come down to what their political party platform states? Why not? Because I want a judge who is impartial and not going to decide a case on the party stance on an issue, but on the law and do so impartially and fairly It seems kind of simple to me, but I am just a small town lawyer, what do I know. Let me know your thoughts.

Free Speech is Never Free

As I was preparing to write this weeks’ blog I had intended to write about how much is a life worth and methods courts, juries and attorneys can use to try and explain how to calculate compensation for a family who has lost their loved one. Then last night, I learned of a young navy seal Lt. Brendan Looney, 29, a native of Silver Spring. that died in a helicopter crash while serving our country in Afghanistan. He was an Annapolis graduate and married and was buried at Arlington National Cemetery. His mother is a friend of my sister-in-law and he has family in the Maryland area. His is a story of courage and sacrifice. A story of fighting for our freedoms including freedom of speech and that is where this blog comes in. A group showed up to protest the war carrying signs and trying to yell out “comments” about the family and solider that died for his and their country. This group has chosen to protest the war not at the White house or Pentagon but at funerals of our fallen soldiers. The group has been sued before and was ordered to pay several million dollars in damages for this same type of action, but continue to exercise what they claim is their free speech. That case has been appealed and is scheduled for oral arguments before the United States Supreme Court tomorrow. A copy of the complaint can be found at http://blogs.kansascity.com/files/findlaw.pdf and the issues before the Supreme Court can be found at http://www.supremecourt.gov/qp/09-00751qp.pdf.
The question is how free is free speech? Should a person be allowed to protest at a funeral? What about on the way to the funeral? Can they hold signs, but not yell? What if they are a mile away, but on the route to the cemetery? Should it matter if it is a private person vs. a public person? Are there certain areas which should be free from all protest and how do you determine what those areas should be and how near/far from them? The irony of this discussion and what makes me proud is that those who are fighting and have fought for our freedom to have these arguments are also some of the strongest supporters of the right of the protestors – not the appropriateness of the action – to protest.
Back to Lt. Looney and his funeral. The protestors were there with their signs and trying to yell at the family. What are they hoping to gain by protesting at a funeral? Are they really expecting change of policy or just publicity for their own selfish gains? Here is an idea how about the media just doesn’t cover the protestors. Don’t quote them, don’t take any pictures, and don’t even mention that they were there. They are only a story if the media makes them one.
There are heroes in this story. They include the Looney family and all the others who have paid the ultimate price for freedom. They also include Clyde Fleming and others around the county who attend the funeral of our fallen soldiers. We saw them here in Sugar Land escorting home a local solider who was killed overseas. They have been in attendance at funerals across the United State and they were there again at Arlington Cemetery for the Looney family.
Michael E. Ruane staff writer for the Washington Post reported on the events in his story which can be found at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/04/AR2010100407104.html Clyde Fleming and others (vets and non-vets) went to Arlington on motorcycles and placed themselves between the protestors and the family procession and as Mr. Ruane reports “Moments before the funeral procession appeared, the bikers arrived with a roar, several flying large American flags from their motorcycles. As they lined up and revved their engines to ear-splitting levels, occupants of cars in the procession gave a thumbs-up sign.” "I'm a vet myself, and I think what these people over here are doing is horribly wrong," said motorcyclist Clyde Fleming, 62, who said he lives on the Eastern Shore. "If you want to protest a war, you do it with government officials, not with the soldiers who died for you," he said. "You don't disrespect them and their families with such hatred." “He (Clyde Fleming) said the church "absolutely" had a right to its protest - "just as we have a right to block their noise and their rhetoric."
Free speech wasn’t free for the Looney family and the hundreds of thousands of others who have given their lives for this country. My thanks and prayers go out them and all the other families who have sacrificed to allow us to have these discussions. The Supreme Court will ultimately decide the legality of this type of protest, but we have the freedom to speak out against it and to show up and support our troops and their families when they need us most. We have the freedom to do like Mr. Fleming and the thousands of other riders across the country to show up and support the family of our fallen heroes and shield them from this type of abuse. So the next time you hear about a solider being brought home, say a prayer for them and their family, but also make the time to go and show your support and thanks for all they have sacrificed for you.

Where did our premiums go?

Texas Windstorm Insurance Association (TWIA) is in court in Galveston attempting to convince the Judge to order the Plaintiffs attorneys to turn over the total amount of fees they have made in representing people who had their hurricane claims denied or underpaid. The TWIA has already tried to set the stage against the “greedy” plaintiffs lawyer. There has also been talk about the legislature needing to know the amount of fees so they can possibly do something about them. Here's another crazy idea TWIA -- evaluate the claims fairly and pay them timely and guess what there would be NO attorney fees. What a novel idea. An insurance company actually paying a claim. I realize it is a shock to the insurance world that someone would ever suggest that they do anything other than collect premiums, but normal people actually expect to be covered in exchange for all the money they have paid over the years and they get a little upset when after having their $150,00.00 home destroyed that you want to write them a check for well below the value or that you tell them that the fact that their roof blew off is just a coincidence that it happened after a hurricane.
Sorry I drifted off into the world of how normal people think and not the land of insurance where intelligent life is scarce. So instead of just paying the claims and avoiding the lawsuits and attorney fees completely, the insurance companies whine and moan about how much money the attorneys who are representing their insured’s are making. They want to start an investigation into the amount of fees and make it all public. What they really want to do is create a smoke screen where they can hide. They want to use their same old “greedy lawyers” argument and hope that it gets people to forget that they have made millions (if not billions) of dollars off the people of this state in premiums and then refused to pay the claims.
The only time you generally need insurance is when something bad happens. The only time you generally need a lawyer is when someone has done something they shouldn’t have. I see a correlation here. It does not seem to be apparent to the insurance industry. So why should that surprise us? Instead of hearings on attorney fees paid out, how about hearings and an investigation into how to prevent this type of abuse by the insurance companies in the future. Make the failure of an insurance company to pay a valid claim a claim in which not only can the person who paid their premiums get their attorney fees and the real value of the claim, but punitive damages or an automatic 10x the claim value. Maybe that will get the insurance companies to do what is right in the first place.
I do have some questions of my own: How much did the insurance companies make off of Texans in the last 10 years? How much did they make off of interest in the premiums they have kept and money they have not paid out for the hurricane claims? How much do they pay their lobbyists and others who try and convince our representatives to “protect” them (in other words don’t make us actually pay any claims or worst case let us delay them for years and then only pay the very minimum)? Which representatives received money from the insurance companies and how much?

responsibility

Toyota admits that its black-box recorder readers have a software error that can cause wrong speed readings.

SUV’s have warnings that state avoid sudden turns, but don’t define what that is or how you are to avoid them if someone pulls out in front of you, or if a child runs out in front of your car.

Child safety seats were found to be incorrectly installed 75% of the time by NHTSA in 2009.

What do all these have in common? The manufacturers know of a defect or problem, but rather than fix the problem and save lives they continue to try and blame the driver and parent.

The buzzwords “personal responsibility” is something that manufacturers love to throw out when they are discussing a case. The driver needs to take responsibility. The parent needs to take responsibility.

I have an idea. How about the manufacturers start taking responsibility and fix the problems instead of spending millions of dollars on lobbyist, defense attorneys and advertisements in trying to shift the blame. They have known of the problems for years and yet do nothing about them. Stop blaming your customers and look in a mirror. If any other business was having 75% of their customers not using a product correctly they would probably get the hint that they need to change something. The problem for drivers and parents is that the manufacturers are able to blame them because a jury generally only sees that one case, and not the hundreds or thousands of other claims or lawsuits regarding the same issue filed across the country. The manufacturers can imply this was just a freak accident or this one driver just failed to handle the situation. In those rare instances in which the Courts allow the jury to know about the other incidents the juries usually award significant damages. Does the manufacturer admit they did something wrong and vow to correct the problem and apologize to the family? Do they thank the plaintiffs and jury for helping them become aware of a dangerous defect which is maiming and killing people? No. They generally talk about how the jury was misguided and they how they will appeal this miscarriage of justice. Here’s a solution. Take some responsibility, fix the problem, save the families from having to deal with the sorrow of their children, parents and other family members being injured or killed because you choose to ignore a problem.

Thanks to my partner for the idea for this blog post.

Facebook, myspace, etc.

I love Facebook and Myspace, but maybe not for the reasons you think. Yes I do have a facebook account and probably spend too much time reading about what is going on and checking out the photos, but the real reason I love them is because they provide great information for cross examination in lawsuits (and unfortunately sometimes against me). There is the old saying that don’t say anything you wouldn’t want written in the paper, now it should be don’t take, or be in a picture you don’t want to be brought up in a trial, job interview or just used to embarrass you. I have seen such things on profile as swinger, escort, weekend drunk, and photos that make for great exhibits in cases. I know you some of you are thinking whew, it is a good thing I have my privacy settings so only my “friends” can see that stuff. Well it might not be so secure. Maybe the picture of you drinking several beers on the weekend are in your friends pages or friends friends and they are not protected. It might it also be that one of your “friends” is not really a friend (or is also friends with the person you are against or interviewing with) and turns your information over. You get asked in a deposition or interview did you drink anything over the weekend, you answer no, but there is a picture of you with a beer in your hand surrounded by empty beer bottles. Again the solution is simple. First don’t put yourself in a bad position and second don’t lie about it.

OK Mr. and Ms. professional, I only put professional stuff on facebook, see above, you never know who took what pictures where you were in maybe without you even knowing about them. There is this thing called tagging, not sure what it is, but my daughters do and it gets you tracked down. Now the others Linkedin, etc. these are professional sites and surely can’t be a problem. Generally that is true as long as you follow the tell the truth. It is useful to find out the background on a person, who they worked for, how long and who they are linked to, but here is another useful piece of information. Say you as a lawyer are trying to determine who to depose at the other parties company in the lawsuit. You send discovery asking for the person with knowledge regarding the topic, they give you a name and/or produce someone OR you get on linkedin and do a search for that company and see who all is listed and what their job titles are. Sometimes they are pretty interesting such as risk assessment and management, operations security, safety training and enforcement. These people may know more and be more interesting to depose than the people they offer.

So the moral of this blog is don’t be stupid as it will show up somewhere sometime on social media and don’t lie about it if asked because you should assume if they (attorney, job interviewer) are asking the question they already know the answer. If your company is sued you should review your own employees social sites, including linkedin to see what they have listed as their jobs and descriptions of job. This may help you determine who may be deposed and help prepare them (and you) for questions. Finally never assume that just because you deleted it that it is gone. It seems like the worse the picture, statement, or information the more somebody wants to keep it around.

Trial lawyer

I am a trial lawyer. I try cases. Not a hard concept to grasp, but apparently it is beyond the comprehension of some who try to use the term as some type of attack. Case in point. Houston Chronicle article today by Peggy Fikac which discusses the $2,000,000.00 judgment against the Republican Governors Association (RGA)for violating state law relating to donations made to Rick Perry in 2006. The RGA’s spokesperson, Mr. Schrimpf who was quoted in the article is really fond of the term trial lawyer. (As you can see I am kind of fond of it myself) He describes the suit as being brought by a “Democrat trial lawyer” and later said “Unfortunately, this junk lawsuit has gone on for four years, and to the Democratic trial lawyers’ dreams, will likely go on two or three more.” Wow it must really be tough to try and get “trial lawyer” into every sentence while still throwing in junk lawsuit and managing to avoid the issue that your organization was found to have violated Texas law. You do manage to state that you will immediately appeal. Let me help you out here. The lawyer you used during the trial of the case was (I would hope) a “trial lawyer” and now you will probably hire an “appellate lawyer” unless your trial lawyer is also your appellate lawyer. I wonder if you would have preferred using an auto mechanic to try your case, or maybe a surgeon, baker, banker or candlestick maker. It appears that your focus groups have convinced you that the term trial lawyer will cause ordinary people to suddenly lose all sense of justice and blindly ignore what your organization did in trying to buy an election. Trial lawyers try cases. We also advise clients to resolve claims and disputes, not file cases if there is not a claim and not file frivolous (you apparently know the it by the term “junk”) lawsuits or defenses. Trial lawyers understand this. Maybe you should have hired a trial lawyer, or better yet just not violated the law. Wow what a concept, then you wouldn’t have needed that evil trial lawyer.

Arbitration - mediation

Arbitration is evil. Mediation is good. Is that clear enough. In arbitration you are putting your legal issues before a person(s) who charge a bunch of money and make a decision which you can not appeal, which may be wrong, and may not even follow the law. While it may be the only time you are before that arbitrator the other side may have been before them several times and as arbitrators can be stricken by a party how would you feel knowing that the decision on your case will be made by someone who knows that your opponent will be back in the future and he may never see you again.

Mediation is a voluntary settlement conference where both parties meet with a neutral person in an attempt to come to an agreement. Neither side can be forced to settle and the mediator does not make a decision which can be forced on you. If you don’t settle the case in mediation, you can continue on to trial and nothing is allowed to be discussed about the mediation, what was said or done. It is as if it never happened. Mediation has about a 85% success rate for settlement.