Trial Preparation: Voir Dire Diagram
With use instructions and jury selection tips.
by Leonard Bucklin
Excerpted from Building Trial Notebooks
- Tip and Form: Medical Bills
- Form: Plaintiff’s Request for Admissions Re Medical Expenses
- Form: Personal Injury Special Damages List
- Form: Voir Dire Diagram
-
The attorney’s notes on the type of jurors to have or not have on the jury, and the questions he wants to ask the jurors on voir dire.
-
A juror voir dire form, in as many copies as you will use during voir dire.
-
When available, the jury panel list of the people to be voir dired.
-
After the jury panel list has been obtained, information you have gathered on individual potential jurors.
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A three-minute summary of the case you can present to the voir dire panel to quickly explain what the case is about.
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How much the case is worth to you as an attorney, and how much in resources you can afford to spend on the case.
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If there are holes in what should be known about damages. Your staff can work on filling gaps while you are out of the office.
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Immediately send the defense a nice letter enclosing a medical authorization from your client for them to inspect medical records. Opposing counsel will get it sooner or later, so give it to them right away to justify step 2 below.
-
Sixty days later send out the following Request for Admissions.
-
For a matter to be pleaded, at the time of pleading you must have factual information that provides a reasonable ground for you to prevail at trial.
-
For a matter to be denied on a request for admission, you must have factual information that provides a reasonable ground for you to prevail at trial.
-
You may not give lack of information as a reason for failure to admit the following items (unless you state that in fact you already have made a reasonable inquiry to ascertain any reasonable ground to believe that you might prevail on this matter).
-
“An assertion that the request presents an issue for trial is not a proper response.”
-
The attorney’s notes on the type of jurors to have or not have on the jury, and the questions he wants to ask the jurors on voir dire.
-
The juror voir dire form, in as many copies as you will use during voir dire.
-
The jury panel list, which is the list of people called to be on the jury panel to be voir dired.
-
Information you have gathered on individual potential jurors.
-
The attorney’s three-minute summary of the case designed for use in voir dire.
This section in your trial notebook is the place for:
This is the place for a summary, not
a long description.
When the judge asks, “What are
your damages?” When the jury needs to know, “What is the rational way of
adding up the economic damages from loss of the contract to sell 1K
Widgets?” When the mediator asks, “What are your out-of-pocket costs?”
When your defendant’s insurer questions, “What are plaintiff’s
out-of-pocket expenses?” “How long was the plaintiff in the hospital?”
“What are the injuries that were diagnosed?” Those are the times you
must be able to respond with a bulleted list which is short, direct,
categorized, and dollar-specific.
We provide a form to summarize
damages in a personal injury case. Begin completing the form as soon as
the case starts. It will help you determine:
§13.1 Tip and
Form: Medical Bills
In the typical bodily injury case the
defense puts in a general denial of everything you pleaded. That means
that at trial you will have to prove the medical treatment was
reasonable, that it was caused by the accident, and that the charges
were reasonable. Do not be caught flat-footed at trial by an objection
to introduction of the medical bills on the ground that they have not
had the necessary foundation of testimony on what was reasonably
necessary for medical treatment.
As soon as the defense gives
you a general denial answer, including a denial of your pleading of
medical expenses, do two things.
We place this Request for
Admissions Re Medical Expense behind the “Damages List” tab so that you
will handle it during the first ninety days of the litigation. That is
the crucial time period for you to establish that you will take no
nonsense from the defense.
The Request for Admissions re
Medical Expense mentions at length the consequences of failure to admit,
including that a denial questions the professional conduct of the
medical provider. This is first to make the defense attorney think
seriously about her game of denying everything you pleaded.
Second, if the defense attorney
does deny the requests, your treating doctors will become wonderfully
cooperative after you tell them that the nasty guy on the other side is
questioning their medical ethics. Suddenly doctors who would not talk to
you about the case are willing to appear at trial to say how badly your
client was hurt, and why his patient had to endure both the injuries and
the expense of treatment.
If the defense admits the
items, make a large posterboard of the admissions, signed by the defense
attorney. Do as we do in the form — make the actual place for them to
sign a separate page so it is easy to copy and enlarge separately. Offer
the enlarged-size admission in evidence in chambers before opening
statement. Then show the enlarged admission to the jury at the beginning
of the case to establish that the opposition has no defense to the
damages you will be seeking at the close of the case.
§13.2 Form:
Plaintiff’s Request for Admissions Re Medical Expenses
[Usual Court Heading]
REQUEST FOR ADMISSIONS TO (*2)
(REQUEST NO. *)
REGARDING REASONABLE MEDICAL EXPENSES
(*1) serves and files this Request for Admissions pursuant to the Rules
of Civil Procedure. (*1) demands that, on or before the 30th day after
the service of these requests on Defendant, Defendant specifically admit
or deny the following.
The Rules of Civil Procedure provide that:
To assist you in your reasonable inquiry, we draw your attention to the
medical records you have and to the medical authorization which you have
been furnished and allows you free access to get all the necessary
medical bills, records, and information to establish whether the charges
were reasonable. We assume that your reasonable inquiry has included
obtaining all the records necessary for you to prepare for trial.
____________________________________________________________________________________
NOTICE TO GIVE YOU ACTUAL NOTICE OF THE FOLLOWING.
We want to make it clear that we are presenting this demand for
admissions as a professional courtesy to you, so that you have the
opportunity now to purge
yourself of any penalties and assessments for making what we believe are
assertions made without a reasonable ground to believe you would prevail
at trial. A subsequent opportunity will not be given to you.
If you now deny any of the following requested admissions, notice is
hereby given that upon receipt of a denial of admissions by you, we will
then immediately undertake
attorney expenditure of time, fees, and costs as necessary on this
issue. First, we will spend time making deposition or trial testimony
arrangements with the medical providers. The medical doctors or other
medical providers involved will be sent a letter, informing them that it
is only because you have made a public document contending their
treatment was not reasonably necessary and/or the medical charges are in
excess of reasonable amounts. After informing the doctors of your
contention regarding their medical ethics and medical judgement, we will
request an interview with them to discuss your accusation of
unreasonable treatment and/or charges.
In making a denial of the matters requested, you must know that the
medical doctors and other providers will be sending us bills for their
time spent in the interview. Therefore, a later retraction by you of any
denial to these matters herein requested will be considered by us as
evidence to be presented to the court that the denial of the matters
requested was knowingly made to cause attorney time and expenses to the
plaintiff.
This notice is provided to give you fair warning of the award against you
by the court that may be expected for our time, and costs that will be
incurred if you deny any of these requested items. The court at the time
of our motion will be provided with a copy of this notice to you,
together with proof of service upon you.
You are further placed on notice that if you deny any of the requested
admissions, before trial we will inform the trial court of the reason
for expending time in proving medical expenses and ask the trial court
for a hearing and determination whether AT THIS TIME you had a
reasonable ground for denying the requested admissions. We will ask the
Court to assess fees and costs as provided by the rules regarding
Requests for Admissions and applicable statutes, including, if
appropriate, sanctions and penalties for frivolous matters.
____________________________________________________________________________________
The matters to be admitted by you follow on the attached page.
[your usual signature block and date
line]
THE FOLLOWING ARE THE ITEMS ON WHICH
ADMISSIONS ARE DEMANDED
REQUEST NO. 1:
After the injuries of (*1) _______________, which are
the subject matter of this litigation, (*1) _______________ incurred the
medical expenses shown on the attached Exhibit A.
ADMITTED: _______________ DENIED: ______________
REQUEST NO. 2:
The medical expenses shown on the Exhibit A were reasonable charges for
the items and services rendered.
ADMITTED:
_______________
DENIED:
_______________
REQUEST NO. 3:
The medical expenses shown on the Exhibit A were reasonably necessary for
treating the injuries of (*1) _________________.
ADMITTED:
_______________
DENIED:
_______________
REQUEST NO. 4:
The expenses shown on the Exhibit A are for medical services or goods
that were in fact provided, by the organizations or persons listed, to
(*1) _________________.
ADMITTED:
_______________
DENIED:
_______________
[Signature block and date line for the
defense attorney only!
You want the defense to use your form and send it back to you. Then if
they admit the items you only need to photocopy it and enlarge it to
posterboard size for an exhibit in the trial.]
|
Read
this instruction sheet. Then place this instruction sheet as the
last item in this tab section. Throw this instruction sheet away
after everyone is so familiar with this section that you no
longer need this instruction sheet. |
§13.3
Instructions to Staff
If this is a personal injury case,
insert a double-sided copy of the FORM: PERSONAL INJURY SPECIAL DAMAGES
LIST. If the form has insufficient room, type a similar list and use
that instead.
For other types of cases
make your own summary list of the out-of-pocket (i.e., special) damages.
List all special damages in a short form with a dollar amount. Group
items in categories. For example, in a fire case, you may have such
categories as Building Damage, Personal Property Damage, Temporary
Living Expenses, Site Clean Up, Architect’s Fees, Construction Contract,
etc. The important point is to have a list, in short form, with specific
categories, items and dollar amounts.
Also place in this section any
summaries and other compact information which allow convenient and
correct references to the amount and type of general damages.
§13.4
Form: Personal Injury Special Damages List
Date of birth: ____________
Age on date of the accident was _________________
Life expectancy: __________
years on date of the accident
SHORT DESCRIPTION OF INJURIES (If you had to tell a friend in 90 seconds
what kind of case you are working on, what would you say the injuries
are?)
|
SPECIAL DAMAGES
HOSPITALS (Name of hospital and
date of last billing)
1.
2.
3. |
$ ________
$ ________
$ ________ |
|
DOCTORS (Name of doctor and date
of last billing)
1.
2.
3.
4.
5.
6. |
$ ________
$ ________
$ ________
$ ________
$ ________
$ ________ |
|
PHYSICAL THERAPY, NURSING
SERVICES, APPLIANCES, DRUGS AND OTHER MEDICAL EXPENSES (Name and
date of last billing)
1.
2.
3.
4. |
$ ________
$ ________
$ ________
$ ________ |
|
TRANSPORTATION AND TEMPORARY
HOUSING EXPENSES |
$ ________ |
|
AUTOMOBILE DAMAGE
Is this Repair Estimates, or
Actual Cost of Repair, or Total Loss minus Salvage?
Year, Make & Model:
Collision Insurer & Deductible Amt.:
Market Value Before Accident:
Market Value After Accident: |
$ ________ |
|
PAST LOSS OF EARNINGS CAPACITY
Occupation:
Employer:
Rate of Pay:
Dates Lost From Work: |
$ ________ |
|
MISCELLANEOUS OTHER EXPENSES
|
$ ________ |
|
SPECIAL DAMAGES TOTAL |
$ ________ |
As the case progresses, you need to
think about the theme you ultimately will be presenting to the jury, and
the type of juror you want to have. Jot down these thoughts. You will
also be thinking of questions to be asked on voir dire. Write them down.
This section of the trial notebook will draw into one place these random
notes you make from time to time.
Each judge or court has their
own procedure for when and how you can obtain from the clerk of court a
list of the entire juror panel from which your jury is to be drawn.
Place this juror panel list in this section.
§19.1 Using the
Voir Dire Form
If possible, have an assistant or
emotionally calm client sit next to you during voir dire and make notes
about the prospective jurors as you ask questions. If you have to stop
to write a note about the juror’s response before you ask the next
question, jurors will note that you hated an answer and perhaps adjust
their future responses.
Most of the time you will
not have a trained assistant available to take helpful notes during voir
dire. Moreover, even the best-trained observers will miss important
juror reactions. To solve these problems, we include a juror voir dire
form containing key items ready to be checkmarked. Thus, while you are
talking you may jot down a couple of words or checkmark an item about
each prospective juror.
Our form has six columns
because many judges seat two rows of six potential jurors in each row.
If your county has a different form or shape to the juror box, or uses
courtroom benches for more than 12 persons to be questioned at one time,
redesign the form accordingly. For example, for judges who seat the
panel in four rows of ten persons each, redesign the form to have four
rows of ten persons. You will need more than one sheet.
As each juror is called to the
box, or otherwise identified in the courtroom, write the juror’s last
name at the top of the form’s row corresponding to the juror’s seat.
Then it will be easy to jot a few notes about each prospective juror.
For example, if it is developed that the person is an executive who
thinks corporations make no mistakes worthy of suit, you can draw a
circle around the plus or minus sign on “corporation” as a quick
indication to you what that juror is like. If a juror knows a witness,
the name of the witness known can be jotted next to “witness” on the
form’s box for that potential juror. You are then reminded which
potential juror works with witness Jones.
Our form includes the following nine items. Usually, you need to know this much about a juror. The list can easily be modified.
__
Friendly to corporations.
__ Tort reform mentality makes him distrust any
plaintiff.
__
Occupation bears upon the matter at hand.
__
Government employee or engaged in a medical
occupation.
__ Knows an attorney, party, witness or the accident site.
__
He or his immediate family has been involved in a
similar type of occurrence.
__ He or
his immediate family has either sued someone or been sued.
__ He or his immediate family had the same sort
of injury or damages.
__ (Most important.) The juror’s personality is such
that you consider it a “plus” or a “minus” in your personal relationship
to that juror during the course of the trial.
§19.2
Summary of the Case
At the start of voir dire, many judges ask the attorneys
to each give a short description of what the case is about. Do not waste
this opportunity. Be ready with a three-minute speech giving a story of
the case.
The old Perry Mason detective story titles had it
right. The titles were “The case of ....,” such as “The case of the
sixty orange signs” or “The case of the man who did not show a light.”
You need to tell the jury in your first sentence at least one factual
item you want them to key on. “This is an automobile accident case” will
not grab a juror’s interest. Be specific. “This is a case of a driver
who drove too fast.” Or “this is a case of a handshake that everyone
thought was a contract.” For goodness sake, do not just say, “This is a
medical malpractice case” if instead you can say, “This is a case of a
doctor who did not take time to read the pathologist’s clear report of
cancer, and John Smith is now dead.” Or if you are representing a
defendant, say: “This is a case of hidden cancer, that even the best
doctors, like Dr. Kirmis, have to work against.” In the voir dire, give
the prospective jurors a short skeleton of the fact story. Do not simply
list legal issues.
Make your case summary a compelling three-minute
description that you can use to great benefit when the judge asks,
“Counselor, describe the case briefly so the jurors will know if they
have a conflict with this type of case.”
|
Read this instruction sheet. Then place this instruction sheet
as the first item behind the tab. Leave it there. |
§19.3
Instructions to Staff
This “Voir Dire; Juror List” section is the place for:
INSERT FORM. For now, insert one
FORM: VOIR DIRE DIAGRAM. Just before a jury trial, the attorney will
make extra copies or adjustments in the form.
|
#
Name
|
#
Name
|
#
Name
|
#
Name
|
#
Name
|
#
Name
|
|
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
|
Knows
Atty
Party
Witness
Site |
Knows
Atty
Party
Witness
Site |
Knows
Atty
Party
Witness
Site |
Knows
Atty
Party
Witness
Site |
Knows
Atty
Party
Witness
Site |
Knows
Atty
Party
Witness
Site |
|
Sim. Occur.
Sim. Damage |
Sim. Occur.
Sim. Damage |
Sim. Occur.
Sim. Damage |
Sim. Occur.
Sim. Damage |
Sim. Occur.
Sim. Damage |
Sim. Occur.
Sim. Damage |
|
Sue
Been Sued |
Sue
Been Sued |
Sue
Been Sued |
Sue
Been Sued |
Sue
Been Sued |
Sue
Been Sued |
|
• persona
+ or - |
• persona
+ or - |
• persona
+ or - |
• persona
+ or - |
• persona
+ or - |
• persona
+ or - |
|
#
Name
|
#
Name
|
#
Name
|
#
Name
|
#
Name
|
#
Name
|
|
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
Corp + or -
Govern + or -
Medical + or -
Tort Ref + or - |
|
Knows
Atty
Party
Witness
Site |
Knows
Atty
Party
Witness
Site |
Knows
Atty
Party
Witness
Site |
Knows
Atty
Party
Witness
Site |
Knows
Atty
Party
Witness
Site |
Knows
Atty
Party
Witness
Site |
|
Sim. Occur.
Sim. Damage |
Sim. Occur.
Sim. Damage |
Sim. Occur.
Sim. Damage |
Sim. Occur.
Sim. Damage |
Sim. Occur.
Sim. Damage |
Sim. Occur.
Sim. Damage |
|
Sue
Been Sued |
Sue
Been Sued |
Sue
Been Sued |
Sue
Been Sued |
Sue
Been Sued |
Sue
Been Sued |
|
• persona
+ or - |
• persona
+ or - |
• persona
+ or - |
• persona
+ or - |
• persona
+ or - |
• persona
+ or - |
Leonard Bucklin has been elected a Fellow of the International Academy of Trial Lawyers, which attempts to identify the top 500 trial lawyers in the U.S. He served as a Director of the Academy from 1990 to 1996. He is also a member of the Million-Dollar Advocate's Forum, which is limited to plaintiffs’ attorneys who have won million or multi-million dollar verdicts, awards, and settlements.
On the other side of the table, Mr. Bucklin has been placed in Best's Directory of Recommended Insurance Attorneys as a result of superior defense work and reasonable fees for over 35 insurers. His legal experience spans 40 years, and has been balanced between commercial and personal work, between office practice and litigation, and between plaintiff and defense work. He is the author of Building Trial Notebooks, from which this article is excerpted.
C9
Updated 02/02/12
