Another Reason to Hate the Plaintiffs' Bar

From today’s Wall Street Journal. Basically this amounts to advice to keep the people described below off of juries by whatever means are available (peremptory challenges, etc.):

‘Personal Responsibility Bias’

We’ve all heard of race bias, gender bias, class bias, sexual orientation bias, et cetera. But maybe only a psychotherapist turned trial lawyer could come up with something called “personal responsibility bias.” Apparently this affliction is especially pronounced among strange people with “traditional family values” and “strong religious beliefs.”

That, at least, is the view offered by David A. Wenner in an $800 handbook offered by the American Trial Lawyers Association. Entitled ATLA’s Litigating Tort Cases, the book is advertised as “essential to every trial lawyer’s library!” As a recent dispatch by reports, in a chapter on juries Mr. Wenner suggests that Americans with a keen sense of personal responsibility are just not the type of people with whom you want to try to play the “blame game” – especially “if the plaintiff was in the best position to avoid the injury.”

“The personal responsibility juror,” writes Mr. Wenner, who served as co-chair of ATLA’s Blue Ribbon Commission on Juror Bias, “tends to see the world with bright line rules on how people should act… 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.”

Hmmmmn. Mr. Wenner tells us these passages have been distorted: All he’s trying to do is ensure a fair trial for plaintiffs. But what does it tell you about the current state of our legal system that the same virtues that would be an asset in a friend or spouse or employee are deemed a liability in a jury of one’s peers?

Updated January 12, 2004

God in Heaven… Where is the apocalypse when you need it? Maybe another flood and we can start allover… This is just friggin bullcrap on a cracker. WTF? The idea of persons being responsible for their actions is now a form of bias? What a crock… what a damn crock…

I took trial tactics in 1995 and it was accepted that rural jurors were less likely to award judgements than urban jurors. The reasons given were an acceptance of personal responsibility, independent minded and the belief that sometimes “accidents” happen without fault. The advice, try your cases in as large a city as possible and eliminate as many people from the jury holding the rural mindset as possible. People tend to forget our system is adversarial by nature and has nothing to do with “fairness” or “justice”, it’s all about the law.

I think this sucks too, but I really don’t see how it’s anything more than codifying the practice that was already taking place. I mean, if you were a defense attorney, you would challenge anyone that you had reason to believe had a propensity to award a large judgment. It seems like the author simply pointed out that there was an elephant in the room.

Now, if the thought is that this is some form of condition which should disqualify someone from a jury and not count against the standard number of challenges, then I would have a much bigger problem with it. Otherwise it seems to just be another part of the whole psychological game that a trial has become.

–Good God, why did I choose law school and not just be a doctor or businessman instead…

Jurors can challenged for any reason or no reason at all (except for race, religion, etc.) So, who cares why an attorney gets rid of a juror, it doesnt make a damn bit of difference. The attorney who wrote the manual said what every trial attorney knows.

Also, common sense has elude the legal system for some time now. This should’nt suprise anyone.

–Good God, why did I choose law school and not just be a doctor or businessman instead…

Because you’d end up getting sued out of business.

Yes yes, I realize that this is considered “trial tactics” in our adversarial system, and it goes on all the time. However, I think law school warped our brains. I understand the value of the adversarial system, and it makes a whole lot of sense in the context of arguing the law itself.

However, I think it has gotten out of hand when it comes to trying to game the system by taking advantage of the procedures surrounding the actual substantive law. The concept here, which we apparently blithely accept, is that it should be OK to try to stack the jury with people whose pre-held concepts of fault disagree with those of the law, and who are likely to vote based on those rather than on the law with which they are instructed. I’m a few years removed from torts and civ pro, but I do not recall any states having systems that dismiss the concept of individual fault.

In the broader scope, I find the whole idea of trying to cull the jury pool of anything other than actual bias to be disturbing. The system has moved itself away – a long time ago, you’re right – from the idea of an actual representative jury pool. Personally, I think all torts/financial cases should be bench trials, perhaps with 3-judge panels. Complex financial matters are over the heads of the jury pool in general – they end up voting for whichever lawyers they like more.