Beware the Potential Juror Who Is Similar to Your Client
It happens periodically: there is someone in the venire who has key similarities to your client. You might be representing the plaintiff who lost a leg in a workplace injury, or a corporate defendant being sued for breach of contract and fraud. And we have all felt that tug on our consciousness: "Cool! This person will understand my client; this person will sympathize with my client; this person will get our story." And, of course, we have all watched what happens. It's not pretty.
So the rule of practice is that if you can avoid it, stay away from potential jurors who are too much like your client or have had experiences similar to your client's experience in whatever gave rise to the suit. Many lawyers have already figured this out, but many others still say, "Alright! This person lost a leg at work, just like my client!" That person will probably kill your client in deliberations.
Part of the reason for that is the Fundamental Attribution Error, which holds that people tend to attribute conduct to the other person's character rather than to circumstances... even though circumstances explain it perfectly, and even though we tend to view our own behavior as driven by circumstances. Examples: He is disorganized; I've been asked to do too much at once. He's lazy; I'm conserving my time and energy for something else. He's dangerous; I have received conflicting signals from management about safety versus speed of operations. Thus, someone on the panel who is similar to your client will automatically jump to thinking, "Hey, you were a reckless idiot; I was truly victimized by circumstances." And this is true whether they are similar to your plaintiff client or defendant client. ("I would never, ever, ever get a 12b-5 filing wrong, because I am careful and alert. You, by logical deduction, must not be careful or alert.")
Another reason the similar juror will kill your client is what might be called False Normalization, the unconscious process by which our own experience becomes the norm by which we gauge everyone else's. One deadly example for the hypothetical plaintiff with a broken leg: "You only broke your leg in one place; MY leg was broken in TWO places, so yours isn't so bad." Or, "When I suffered MY injury, my medical care and rehab was just fine; so if you are still having problems, it must be something unusual about you."
A final reason worth mentioning is the phenomenon of the Self-Professed "Expert" in the Deliberation Room. Anyone with some life experience that is even remotely connected to the events of the case (and you might be shocked/horrified at just how remote) will likely become the jury's in-house expert on that topic. And this will likely kill your client. This person will announce authoritatively How Rehab Works (you can almost hear the capital letters highlighting their authority), or How Corporate Recordkeeping Works, or How Insurance/WorkComp Works, or How Police Use of Force Really Works, and on and on. This would be great if this person could be counted upon to be correct, but that almost never happens. They are reporting their experience, idiosyncratic as it might be, and sincerely believing that that's the norm. In any case, it almost never helps your client.
So what to do? GET AGGRESSIVE ABOUT DEVELOPING CAUSE CHALLENGES! There is a choregraphy to coaxing out responses that will show that this person holds views and opinions based on their experiences that will be unfairly prejudicial. I'll cover this more later in some posting to this blog, but it's something our firm is quite committed to-- preserving peremptories by pursuing cause challenges effectively and fearlessly. And frequently.
Still, if you've tried your best at cementing a cause challenge and the judge still doesn't grant it, then consider spending a peremptory. Of course, whether to strike the person is driven by many factors that dictate whether this person's harsh judgmentalism toward your client or his or her faux "expertise" is a bigger risk to you than leaving on someone else whom you might otherwise excuse. There might be reasons that someone else is worse for you and you don't have enough bullets left to dismiss the really horrible jurors. But consider similarity to your client as a pretty bad factor, likely worth kicking that juror off unless you simply cannot.
So the rule of practice is that if you can avoid it, stay away from potential jurors who are too much like your client or have had experiences similar to your client's experience in whatever gave rise to the suit. Many lawyers have already figured this out, but many others still say, "Alright! This person lost a leg at work, just like my client!" That person will probably kill your client in deliberations.
Part of the reason for that is the Fundamental Attribution Error, which holds that people tend to attribute conduct to the other person's character rather than to circumstances... even though circumstances explain it perfectly, and even though we tend to view our own behavior as driven by circumstances. Examples: He is disorganized; I've been asked to do too much at once. He's lazy; I'm conserving my time and energy for something else. He's dangerous; I have received conflicting signals from management about safety versus speed of operations. Thus, someone on the panel who is similar to your client will automatically jump to thinking, "Hey, you were a reckless idiot; I was truly victimized by circumstances." And this is true whether they are similar to your plaintiff client or defendant client. ("I would never, ever, ever get a 12b-5 filing wrong, because I am careful and alert. You, by logical deduction, must not be careful or alert.")
Another reason the similar juror will kill your client is what might be called False Normalization, the unconscious process by which our own experience becomes the norm by which we gauge everyone else's. One deadly example for the hypothetical plaintiff with a broken leg: "You only broke your leg in one place; MY leg was broken in TWO places, so yours isn't so bad." Or, "When I suffered MY injury, my medical care and rehab was just fine; so if you are still having problems, it must be something unusual about you."
A final reason worth mentioning is the phenomenon of the Self-Professed "Expert" in the Deliberation Room. Anyone with some life experience that is even remotely connected to the events of the case (and you might be shocked/horrified at just how remote) will likely become the jury's in-house expert on that topic. And this will likely kill your client. This person will announce authoritatively How Rehab Works (you can almost hear the capital letters highlighting their authority), or How Corporate Recordkeeping Works, or How Insurance/WorkComp Works, or How Police Use of Force Really Works, and on and on. This would be great if this person could be counted upon to be correct, but that almost never happens. They are reporting their experience, idiosyncratic as it might be, and sincerely believing that that's the norm. In any case, it almost never helps your client.
So what to do? GET AGGRESSIVE ABOUT DEVELOPING CAUSE CHALLENGES! There is a choregraphy to coaxing out responses that will show that this person holds views and opinions based on their experiences that will be unfairly prejudicial. I'll cover this more later in some posting to this blog, but it's something our firm is quite committed to-- preserving peremptories by pursuing cause challenges effectively and fearlessly. And frequently.
Still, if you've tried your best at cementing a cause challenge and the judge still doesn't grant it, then consider spending a peremptory. Of course, whether to strike the person is driven by many factors that dictate whether this person's harsh judgmentalism toward your client or his or her faux "expertise" is a bigger risk to you than leaving on someone else whom you might otherwise excuse. There might be reasons that someone else is worse for you and you don't have enough bullets left to dismiss the really horrible jurors. But consider similarity to your client as a pretty bad factor, likely worth kicking that juror off unless you simply cannot.
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