Voir Dire

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Lorilland Tobacco Co. v. Elston Self Service Wholesale Grocs., Inc., Case No. 03 C 4753, Slip Op. (N.D. Ill. Oct. 21, 2009) (Gottschall, J.).
Judge Gottschall ruled upon the parties’ motions in limine in this Lanham Act case regarding the alleged sale of counterfeit Newport cigarettes. Of particular interest, the Court denied in part plaintiff’s motion to exclude evidence of the religious belief of any party or witness. In order to ensure that “no anti-Muslim prejudice infect[ed] the jury’s deliberation,” the Court allowed one defendant to state once that he was a Christian. The Court also noted that it would reconsider its order if plaintiff suggested a reasonable way for the Court to resolve the issue in voir dire.
The Court also agreed to read the jury a statement regarding the fact that the health of one defendant prevented his attendance at trial and that the jury should not hold his absence against him or consider it in their deliberations.
* Click here for much more on this case in the Blog’s archives.
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Continue Reading Court Allows One Reference to Defendants’ Religion to Avoid Jury Bias

Here are several blog posts that are worth your time on this Monday morning:
* At Deliberations, Anne Reed warns of six mistakes that can derail voir dire — click here to read the post. Anyone who follows Deliberations knows that when Reed discusses voir dire, everyone should listen.
* The Federal Circuit heard oral argument in Tafas v. Dudas last week. Here is some of the commentary: Patent Baristas; Patently-O; PLI Blog;
* At IP ADR Blog, Victoria Pynchon offers to arbitrate your patent case and says under expedited AAA commercial rules you can get a decision within 45 days of selecting the arbitrator — click here to read the post. Amazing, I may try that in the dispute resolution clause of my next license agreement.
* Anyone who read his 2007 NYC Marathon Blawg Review will not be surprised that Eric Turkewitz’s post-Thanksgiving Blawg Review last week at his New York Personal Injury Law Blog was one of the best of the year — click here to read it.
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Continue Reading IP Legal News

Anne Reed has an excellent post at her Deliberations blog about improving the voir dire system based upon Judge Mize’s and Center for Jury Studies director Paula Hannaford-Agor’s new paper, Building a Better Voir Dire — click here to read the post and for a link to a pdf of the article, which is also worth the read. Reed’s post and the article fit well with my recent series of posts on the Seventh Circuit’s American Jury Project report — to read those posts and for a copy of the report, click here (juror questions); here (preliminary jury instructions); here (12 person juries); here (interim statements by counsel)and here (Phase I principles).
Reed nails a huge problem with improving voir dire specifically or the trial process generally — judges and lawyers have different interests. Judges who do lots of trials while facing bulging dockets and populations with little interest in appearing for jury duty often want trials over quickly and efficiently using the smallest jury pool possible. Lawyers want to know as much as possible about as large a pool of jurors as possible. Of course, the more in-depth the voir dire process, the more time it takes. And the process of testing new ideas and improving upon voir dire, or any part of the trial process, also takes time up front, even if it saves time in the long term. But Reed, Mize and Hannaford-Agor identify two resources that help limit the upfront costs for judges — the American Jury Project and the NCSC’s State-of-the-States Survey. Both are incredible resources for judges that want to try new approaches to better serve all trial stakeholders.
Most of all though, it is exhilirating to see important groups like the NCSC and the Seventh Circuit massing their resources to evaluate and improve the trial process. I look forward to covering more efforts like these and to continuing the discussion about how to best try cases in our courts.
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Continue Reading The Experts Look at Improving Voir Dire

I have written about the legal issues surrounding social networking sites (click here and here to read those posts). I even did an ALI-ABA teleseminar with Eric Goldman yesterday discussing, among other things, how the Communications Decency Act protects social networking sites against suit based on third party content published on the sites. But Julie Kay’s National Law Journal article yesterday — click here to read it — provided a new angle on the power of social networking sites in the courtroom.
It is no surprise that lawyers, either alone or assisted by jury consultants, research juror backgrounds, and use their research during voir dire and to inform their trial presentations, in particular opening and closing arguments. Of course, internet research has been a cornerstone of those efforts for years. But social networking sites have vastly increased the amount of information available about the average person. Instead of learning someone’s Turkey Trot 5k time and one or two newspaper quotes, you now may be able to see their entire resume on LinkedIn, read about major life events on FaceBook, or even read their personal, daily thoughts on a blog. Kay reports that the information is a valuable fact checking tool, acting as a backstop to information provided in a jury questionnaire.
Additionally, blogs can tell you a lot about a juror, that the juror might not be inclined to disclose in open court or on a questionnaire. To illustrate this point, Kay quotes Anne Reed of Reinhart Boerner Van Deuren — who writes Deliberations, one of my favorite legal blogs. Reed tells the story of “Erin” a relatively prominent Florida blogger who blogged that she was a juror several days after posting that: “I totally understand how innocent people that go to prison turn into hardened criminals . . . .” Reed explains that the lawyers might not have struck Erin for her blogging, but that it was critical information to have in the decisionmaking process:
“You’d hate to leave Erin on your jury without having seen her writing,” said Reed. “A juror’s blog tells you things about the jurors that she probably won’t tell you herself.”
Kay also quotes Holland & Knight litigator Dan Small who raises an important and often overlooked note of caution. Small is concerned that invading jurors’ privacy via internet research could make jurors very uncomfortable and is a substantial invasion for people performing their civic duty:
“You are taking people who are doing their civic duty and didn’t sign up to have their whole life probed,” Small said. “It scares people. They wonder: ‘Are they going to hack into our e-mails next?’ The Internet in so many areas creates an extraordinary conflict between the desire for information and the desire for privacy.”
Of course, there is a real question as to whether anything posted on the internet, without password protection or some other privacy protections, can be considered private in anyway. But there is little doubt that knowing their backgrounds were researched and their FaceBook pages were read could make jurors uncomfortable and learning that their backgrounds have been probed could turn jurors against the lawyers or their clients. So, at a minimum, the information needs to be used carefully and discreetly.
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Continue Reading The Power & Danger of Researching Social Networking Sites for Voir Dire

The Chicago Tribune has set up a live blog, written by Bob Secter and Jeff Coen, of the government’s criminal case against Tony Rezko. The blog promises daily, “gavel-to-gavel” coverage of the Rezko trial — click here for background on the case from the Tribune. This case does not have an intellectual property angle that I am aware of, but it provides an excellent view of a trial as seen through the eyes of non-lawyers, a very important perspective for litigators. Additionally, Judge St. Eve gets at least her share of IP cases — click here for discussion of Judge St. Eve’s opinions in the Blog’s archives.*
Here is some of the Tribune’s coverage of the voir dire from yesterday, largely performed by the Court:
Another potential juror, No. 475, teaches cooking classes, often on Fridays. St. Eve sounded as if she was ready to work with the cooking teacher to accommodate her schedule. “If we structured the trial so that it would go Mondays through Thursday and not have trial on Fridays, the days you have cooking classes, would that be good for you?” the judge asked.
Some of St. Eve’s questions were more chatty than legal. The cooking teacher, for example, was asked what was on the menu at her next class. The answer: Beef Bourguignon and mashed potatoes.
Another juror was asked where she liked to go snowboarding. Still another was asked about her desire to learn Spanish. “Have you learned any words yet?” the judge asked.
“Just the bad things,” the woman responded.
St. Eve also complimented No. 475 on an answer the prospective juror gave to a presubmitted question about whether people who contribute to a campaign should expect something in return. “A thank-you would be nice,” the woman wrote.
I will keep an eye on the Tribune’s blog and will highlight other especially interesting items from it.
* Judge St. Eve also gets her share of high profile cases. She must be tired of the publicity after having the Conrad Black trial and now the Rezko trial within twelve months of each other.
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Continue Reading Live Northern District Trial Blog