By Jeremy Pasternak
CAOC “Forum” – March 2005
Civil rights cases present their own set of issues – and challenges – in voir dire. Many of these challenges are not fundamentally different from those faced in any other case. We still have jurors who are resistant to awarding people money for damages, who think the courts are not the place to solve problems, and who have various biases against our clients. The civil rights case magnifies these challenges. Jurors can be even more resistant to awarding monetary damages where no physical injury exists. Jurors may not agree with the public policies underlying the case, and bias against the plaintiff takes on a whole new dimension when the plaintiff is the defendant was biased. Some of the challenges are not just a matter of degree, but arise from the special nature of civil rights cases as a whole.
This article identifies these challenges and presents ways to resolve them during the voir dire process by identifying bad jurors and educating the jury on the issues in the case.
In Bonfire of the Vanities, Tom Wolfe wrote that a smart lawyer knows that a “Bronx jury is a vehicle for redistributing the wealth.” There’s no doubt the selection of your jury begins with the selection of your jury pool. Generally speaking, it’s better for a plaintiff to try a case in L.A.’s central courthouse than in Santa Monica, and better in Alameda County than in Contra Costa County. Any plaintiffs’ counsel is going to look at venue, but in civil rights cases, the special issues relating to venue selection are magnified.
Obviously, we do not always get to choose the venue for our cases, but it is worth noting that civil rights cases, pursuant to both statute and local rules, often hold a special position in terms of venue. For example, a corporate entity can be sued where the breach occurred or where the entity is headquartered. (Code Civ. Proc. § 395.5.) The most common civil rights case, the employment case, is governed by the special venue provisions of the California Fair Employment and Housing Act (FEHA), which mandates that the case be brought where the employee worked or where the human resources materials are kept. (Govt. Code § 129656.) This rule has been held to trump the general venue provisions. (See Brown v. Superior Court (1984) 37 Cal.3d 477, 486.)
There may be greater flexibility in determining whether a case is brought in state or federal court. Although FEHA cases are almost always brought against the employer, which is often incorporated out of state, they may also be brought against individuals. Suing an individual, who is presumably a California resident, has the added benefit of defeating diversity.
Another common type of civil rights case in California are those brought under the Unruh Civil Rights Act. (Civ. Code § 51 et seq.) Many of the act’s provisions prohibit discriminatory conduct by “persons” as well as entities. As such, the act provides a means of bringing suit against an individual, in-state defendant. The California Constitution, article I, section 8, prohibits discrimination by “any person,” thus allowing bringing suit against individuals, not just entities.
If you’re in a tough county and prefer federal court, most state civil rights laws allow you to file in federal court. With federal question jurisdiction, you may also bring your California state claims under pendant jurisdiction. Of course, being in federal court is likely to destroy your opportunity to conduct any real voir dire.
In sum, the venue issue is already special to civil rights cases by operation of law. Statutes and local rules contain special provisions that apply to these cases.
Venue can make a difference in a trial. Who can forget the first Rodney King verdict? What first appeared to be a slam-dunk police brutality case (the offenders were caught on tape, after all), after a trial in Simi Valley, resulted in an acquittal. The results in later federal criminal and state civil cases, tried in venues with more diverse populations, were very different. O.J. Simpson was acquitted in downtown Los Angeles, but was found liable in Santa Monica.
There are many theories about why these cases came down the way they did. Most had nothing to do with venue or jury makeup, focusing instead on how the cases were tried. But I doubt it can be said with certainty that venue and jury makeup had nothing to do with the results.
We have all heard and probably used the generic “lawsuit questions”: “How do you feel about lawsuits of this type?” and so on. These questions are designed to discover a potential juror’s feelings about the litigation in general and to uncover whether the individual is pro-plaintiff or pro-defendant (that is, anti-lawsuit).
What if you’re trying to find out whether the potential juror is prejudiced against your particular plaintiff because of race, gender, or some other classification? And what if that’s the issue in the case? In a discrimination case, a judge is likely to allow a whole line of questioning, from the subtle to the very direct, that might not be allowed in a negligence case.
Let’s start with an example so straightforward it would never be attempted. Question to potential juror: “Are you prejudiced against my client because of her race?” You would want an honest answer to that question, but you’d never ask it. Even if the answer is “yes,” you’ll never hear it, and you’re going to offend the potential juror (and everyone else) by asking the question in the first place.
Working down from this most obvious of questions, becoming more subtle, we’ll find a point where a question, designed to uncover bigotry, would make perfect sense in a discrimination case, though none at all in a negligence case. For example: “Do you believe that people are still discriminated against in the workplace? Why/why not/explain.” Or a more subtle example: “Do you believe that people should bring suits of this type? Why/why not/explain.” An even more subtle example: “You understand that we are here because Ms. Plaintiff believes she was discriminated against, right? How do you feel about that type of lawsuit?” These questions are allowed in a discrimination suit, because they go to the heart of the case. At the same time, the answers to these questions (particularly the open-ended questions) can give you a feeling for the character of the person answering them.
Race discrimination cases present another opportunity. It’s no surprise that defense lawyers are likely to challenge jurors of the same race as the plaintiff in a discrimination case, particularly if that juror is from a group assumed to be plaintiff-friendly. This violates the strictures of Batson v. Kentucky (1986) 476 U.S. 79, which prohibits discrimination in jury selection. In the event it happens, you should have a pocket brief with you, ready to go. Just as important is the effect of such challenges on the jurors. If they think the defense is bouncing people because of race, they are not going to like it, and this could serve you well.
How do you help the jury see this? First, do not stay away from that juror just because you are afraid the juror will be challenged. Ask questions. Support that juror. Provide the setup so you can later show the judge that there is no reason for the defense lawyer to challenge the juror except for some unlawful reason such as race. Second, remember that this is not just any Batson motion. In a discrimination case, there is a built-in suggestion that the defense attorney wants to get rid of people who look like your client.
In every tort case, we need to examine potential jurors regarding their feelings about general damages: are they comfortable with damages being awarded, is there an amount they wouldn’t exceed, etc. Civil rights cases, by their nature, often involve special damages relatively lower than in other tort litigation.
The classic negligence case involves medical bills; there is an identifiable hard-dollar loss. But what about a defamation case? The defamation may have resulted in the loss of a job, but not necessarily. The case may be just about emotional distress. What about an employment discrimination case where there is no termination (lost wages being the “special” damage in these cases), but there has been harassment on a daily basis? Or a case where someone was denied access to a public accommodation? These are cases where the plaintiff may have real and identifiable psychological injury, but that injury can’t be directly connected to any hard-dollar loss. When there is only psychological injury, it is much harder for jurors to understand there is still an injury that needs to be compensated.
It is not enough to explore whether the jurors believe emotional distress merits compensation. You must also discuss how emotional distress, even in the absence of physical injury, merits compensation.
First, there is a fundamental difference between an accident that results from a mistake and one that occurs due to an intentional tort. The psychological pain that results when someone intentionally tries to hurt another with malice (and often, bigotry) is different and more psychologically painful than a mere mistake.
Second, such a plaintiff has no “cure” and nothing to look to for the source of the pain. The only “cure” is to treat the injury through therapy, which forces the patient to deal with the problem. This is hardly a comfortable solution, particularly in light of the fact that someone has hurt the person intentionally.
Almost every panel has someone who has been physically injured (and is more than happy to talk about it). This juror will accept that if the injury (1) had resulted from someone actually trying to hurt them and (2) had no physical component upon which they could place their focus, they would probably have had a much tougher time dealing with it. This can effectively put the “Well, she wasn’t actually hurt” argument to rest, by suggesting to the jury that unless they’ve been through something like the plaintiff has, they really can’t understand it, and they can’t draw on their own experiences with physical injuries for comparison.
Because of the relentless campaigns of the insurance industry, we have to address potential jurors’ feelings about “frivolous lawsuits.” You may be able to probe more deeply into the jurors’ political viewpoints in civil rights cases than in other cases.
In the civil rights case, we must not only be sure that our jurors are comfortable with compensating injury, we have to be sure they are comfortable with the underlying premise, which to them may be politically unpalatable. Some people do not think a lot of civil rights laws should be on the books, but civil rights are protected by state laws. If you can make that clear in voir dire, potential jurors who announce they do not believe in the laws on which they would be instructed are subject to dismissal for cause. Moreover, they’ve taken a fairly outrageous position that the other jurors will probably align themselves against.
It’s a mistake to shy away from these issues. Accept the fact that your case is political in nature – all civil rights cases are. Grab onto the underlying principles and push them in voir dire.
There’s something else to be gained: talking about these issues in voir dire emphasizes the fundamental importance of civil rights cases. Jurors like the idea they’re sitting on a case that is “important.” Discrimination cases are a lot “sexier” than slip-and-fall cases.
One exception is the weak case (which, hopefully, you’re not trying). If you are going to ask jurors to vindicate significant public principles, you’d better be able to show them that this is the case to do it. If the case comes off as a “big deal” in voir dire, it better be a “big deal” when the evidence is brought in.
Unlike the negligence case, in a civil rights case, we are accusing someone of committing an intentional wrong. That is a much tougher sell than convincing a jury of negligence. From a legal perspective, it is an additional element to put into the special verdict. From a human perspective, it is a tougher sell because you’re asking jurors to pass judgment not only on what someone did, but on who they are. You are not asking jurors to say that someone made a mistake; you’re asking them to say that someone is a bigot, or a lech, or something else that goes to the defendant’s character.
The problem in voir dire is that some jurors simply do not feel comfortable making these types of value judgments about people. Look out for jurors who just cannot get their heads around making a judgment on motive, and even more, about what’s in someone’s heart.
Applying the broad scope of permissible voir dire, civil rights cases allow you to probe more deeply into jurors’ feelings about “judging others” and gives you a greater opportunity to have jurors removed for cause. Even jurors who say they will award damages may state that they don’t how they can decide that someone is a bigot.
You may also downplay the “judging others” aspect of the case. If you remind the jurors that they are not required to be mind readers but are just going on the evidence before them, you may get over this hurdle.
Here is your chance to emphasize to this juror, and more important, the other jurors, that direct evidence is not required. Jurors aren’t required to be mind readers, and they can consider circumstantial evidence. Your next line of questioning therefore begins, “What if the judge instructs you that you aren’t required to be a mind reader, and if you do not believe Mr. Defendant’s reason, that is sufficient?” If the juror is not comfortable with that proposition either, the juror is that much more likely to be bounced for cause.
Just as important, you have also taken an opportunity to downplay your proof burden to the jury by emphasizing that you do not need direct evidence of intent; circumstantial evidence is sufficient.
Most civil rights cases include the possibility of punitive damages. Many potential jurors just do not believe in them. Here again, the nature of the civil rights case presents a solution.
We’ve already discussed the public policy implications of the case. We’ve also discussed getting jurors who are comfortable with identifying the “bad guy.” Once these things are accomplished, you’ve done at least half your work on the punitive damages examination. If you have jurors who accept their part in making judgments on a case that they recognize is important and about bad things, it’s not hard to also make them see that punitive damages may well be appropriate. What are bigotry and discrimination if not malicious and oppressive conduct?
Once you have jurors nodding about “bad” defendants, ask them, “If the evidence indicates that Mr. Defendant did this because Ms. Plaintiff was pregnant, would you agree that this sort of discrimination needs to be punished, so that it won’t happen to someone else?”
The nature of civil rights cases is that you are accusing someone of doing wrong and acting from some illegitimate personal motivation. How then do you deal with juror reticence to make the company-defendant pay for it?
One solution is the jury instructions. For instance, CACI makes clear that in the employment context, there is strict liability for the unlawful acts of supervisorial employees. You may ask the jury whether, if the judge instructed them that an employer is liable for the torts of its employees under certain circumstances, they would be able to render an award against the company.
You can also use the “fairness” approach: “Do you think there is anything wrong
You can also rely on some of the groundwork that has already been laid – that is, the public policy issues. Once a juror agrees it’s important to redress discrimination, is not that juror more likely to agree that, as a matter of logic, the only way to be sure employers prevent this sort of thing from happening in the first place is to hold them accountable if it does?
Do not shy away from these issues. These feelings are out there, so do not ignore them. Probe them, find those jurors who see things your way, and try to bring others around to your way of thinking.
Jeremy D. Pasternak has law offices in San Francisco. He is a member of the Forum Editorial Board.