By Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract, but had prevailed in avoiding an interlocutory injunction shutting down his new company.  We have moved through discussions of the discovery process, mediation/arbitration and are now on to a final trial.

The process of a final jury trial is so complicated that it could consume our discussion for the remainder of the year.  In order to move along, we will discuss the trial process in just two articles.  For this month, we will look at jury selection.  Next month, we will look at the actual trial process and verdict.

Jury selection is a very misunderstood process outside of trial lawyers.  Most non-lawyer members of the public believe that they are “selected” or “picked” for jury service.  In fact, it is quite often the case that in post-trial interviews jurors want to know “Why did you pick me?”.  The reality of the process is that jurors are not “picked” but rather jurors are “struck” and the jury which ultimately tries the case consists of those jurors who remain and are not stricken by either party.

The process begins with a qualification process administered by the Court.  If a jury of 12 (with 1 additional alternate) is to be seated, the Court will generally bring 36 or more eligible jurors into the Courtroom.  The Court will generally confirm that the jurors brought in are eligible to serve (over the age of 18, residents of the County and not been convicted of a felony).  The Court will then confirm that the jurors do not have any personal relationships or connections to the case being tried so as to be impartial or biased.

Once the jurors are confirmed as eligible, the parties to the case begin a process called “voir dire.”  The term is so archaic that lawyers cannot even agree as to how to pronounce it.  In regions outside of the South, “vwah deer” is the prevailing pronunciation.  Much as we do with all such things, Southerners tend to eliminate the European accent and say “vor dire.”  The process is more actually called “Q & A.”

In this process, each lawyer will ask the potential jurors are variety of questions about themselves.  The lawyers can ask questions based on the case, but not ask anything specific about the case or ask the jurors to prejudice the case in any way.  By way of example, in our case involving Dick and his former company, both lawyers would be interested to know which jurors owned businesses and which jurors were employees of businesses.  The lawyers might be inclined to know which jurors had left a company to start up their own business.  Deeper questions might involve asking the jurors to discuss or opine on whether they believe a contract was inflexible and binding or whether concepts of freedom and liberty of employment were more important.  The process walks a fine line in trying to solicit the personal leanings and sentiments of a jury without impermissibly asking them to judge the case at hand.   Most lawyers also have a series of standard, general questions designed to elicit personality types (leader v. follower), understandings of the legal system, prior dealings with Courts and lawyers, etc…  For example, a juror who reveals that he/she is an ardent fan of legal TV shows like Law & Order, CSI and NCIS will often have an unrealistic expectation of evidence and the drama of a real trial.

During the Q & A process, both sides of the case take notes and score the jurors for positive and negative attributes related to the case.  When the questioning is complete, both sides have the opportunity to strike or excuse any jurors for cause (meaning the juror is biased, has a personal conflict or something that prohibits them from serving).  Next, a sheet listing all of the jurors is given to the Plaintiff’s attorney.  The sheet lists the first 24 eligible jurors and the next 3 eligible jurors.  From the first 24 names, the Plaintiff “strikes” out one name and passes the sheet to the Defendant.  The Defendant then “strikes” out one name and passes the sheet back.  This continues until each side has stricken out 6 names, leaving 12 remaining.  Each side uses their strikes to remove the jurors they believe to be the most harmful to their case.  Jurors cannot be stricken for reasons related to gender, race or age and if a party believes such behavior has occurred, the party can challenge the other party to provide a non-prohibited basis for the strike.  There is incredible strategy in the order in which jurors are stricken.  Often times a party will hold off on striking a potentially negative juror to see if the other party will strike that juror first.  This gives the first party the ability to strike another juror.

After the first 12 strikes, the 12 individuals remaining will constitute the trial jury.  From the next 3 eligible jurors, each side strikes 1 name and leaves the remaining person to serve as the alternate juror.  In high profile cases or cases which will last an extended period of time, a Judge might require that 2 or 3 alternates be selected.  The alternate juror sits through the entire proceeding not knowing that they are the alternate.  If at any time a member of the 12 is excused for behavior, illness, emergency, bias or any other reason, the alternate is moved onto the formal jury.  If the trial ends without using an alternate, then the alternate is excused and does not take part in deliberations.

As you can see, a jury is not “selected” but rather “eliminated” which is the basis for the phrase “striking a jury.”  Quite often, the jury seated is made up of individuals who answered few, if any, questions during the voir dire process.  By largely remaining silent, these jurors gave very little information from which one side or the other could make a negative association.

In other words, if you want to increase your chances of NOT being on a jury, speak up early and often during “voir dire.”

By Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract, but had prevailed in avoiding an interlocutory injunction shutting down his new company.  We then looked at the discovery process.

For this month, we switch to attempts to settle a lawsuit amicably.  Generally, parties during the case will send and receive settlement offers by and through their attorneys.  Some cases are in a settlement posture from the very beginning.  Other cases require discovery and the exchange of information in order for the parties and their lawyers to accurately evaluate the case and possible outcomes.  In either scenario, most every case eventually goes to mediation.

There is some public confusion about the difference between mediation and arbitration.  Mediation is a good faith effort by the parties to resolve the case by agreement (or at least resolve parts of the case).  The parties meet and work with a trained mediator.  At mediation, the parties will usually meet with the mediator for a period of time to outline their case and contentions.  After the joint session, the mediator will break apart and spend time with each party privately.  These individual sessions are called “caucus.”  In caucus, the mediator will often speak candidly with each party about their position, the strengths and weaknesses of their case and the potential for settlement.  The mediator then moves back and forth between the parties relaying offers of settlement and compromise.  If the parties can reach a result, a memorandum of settlement is prepared and signed.  Unlike arbitration, mediation is not final and binding on the parties if they choose to adjourn.  Either party can reject the position of the other party and continue in Court.  The discussions, offers and exchanges at mediation are confidential and cannot be admitted at trial.  Neither party is able to subpoena the mediator to trial and try and use anything gained at mediation in evidence.

Arbitration is a completely different method of dispute resolution.  In arbitration, the parties present their case just as they would in trial.  However, instead of presenting the matter in Court, the matter is presented to an arbitrator (or panel of arbitrators) selected by the parties.  Quite often, arbitration is the result of language buried in contracts such as credit card applications and other commercial transactions wherein an entity wishes to ensure that disputes are litigated in a common forum rather than in local courtrooms across the Country.  The enforceability of these adhesion style arbitration clauses is the subject of extensive case law.

In other instances, arbitration can present a high degree of value, particularly for sensitive cases, very high net worth cases and clients and other matters wherein the parties may require or desire a hearing officer with a certain level of expertise or background.  In lieu of waiting in turn for available time and attention with a Judge, the parties in arbitration can often privately schedule the matter at times and dates which are convenient for them.  In addition, arbitration is not a public proceeding whereas Courtrooms must almost always be open to the public.  In certain cases, privacy concerns can be a paramount reason for selecting arbitration.  Unlike mediation, the parties are bound by the decision of the arbitrator and cannot withdraw from the process, once commenced.

In an employment case such as Dick’s dispute with his former employer, it is a virtual certainty that the parties would be ordered to attend mediation in an attempt to resolve the case.  It would not be unreasonable that the parties might also consider a private arbitration for the reasons stated above.  For purposes of our continued discussion/education, we will assume that arbitration was agreed upon and that a Court-ordered mediation failed to result in settlement.  Thus, our discussion next month will turn to the process of a final jury trial.