National Insurance Law Forum : Insurance Litigation Lawyer & Attorney : National Insurance Law Forum : Insurance Coverage, Bad Faith Litigation

Most lawyers approach jury selection with a focus on weeding out jurors who have "bias and prejudice" against their claims, their clients, or their positions in the lawsuit.  Such an approach has inevitably been a failure in my opinion.  Because most lawyers have never been taught how to properly pick a jury, their approach to identifying bias or prejudice is to use those exact terms with the jury in an effort to get them to talk and share their feelings.  Jury research and actual trial experience have consistently proven this approach will be doomed to failure. 

Initially, the very words “bias” and “prejudice” have negative connotations in our culture and very few people are willing to admit publicly in a small crowd that they are, in fact, "biased" or "prejudiced."  I can relate because if someone accused me of being either, I would consider those fighting words.  Most jurors do as well.  Because most people’s self image prevents them from admitting that they are biased or prejudiced, they are starting from a presumptive position that they have no bias or prejudice of any kind.  Although false, their perception is their reality.  Although it is a well established truism that everyone suffers from some bias or prejudice, few will admit it. 

In my experience, however, everyone is willing to admit that because of their life experiences they have “filters.”  Until I introduce the word, no one will describe their feelings in such a manner.  However, once I introduce the term and explain its meaning, I have never found a juror who would deny that they have certain filters which impact their opinions and perceptions.  

When I pick a jury, I introduce the concept of “filters” with one name.  Typically playing off of the Plaintiff's counsel's use of the words “bias” and “prejudice”, I introduce the concept of filters by illustrating the concept using a name simultaneously guaranteed to generate a few smiles (if not outright laughter) as well as some immediate reflection.  The name?  Bill Clinton. The mere mention of the name simultaneously generates positive, negative or neutral feelings among everyone hearing the name because of their personal and political filters arising out of his political career.   The jury gets the concept in seconds. 

With this introduction to "filters" most jurors can easily see how their life experience has caused them to see certain events and process certain information differently than their neighbors.  As such, I will then immediately jump in to one of the biggest issues in the case in order to begin exploring the filters of everyone on my jury panel.  During the course of jury selection, I will actually use the word "filter" on multiple occasions in order to keep the jury focused on why so many probing questions are being asked.  In my experience, such a focus makes the jury less resentful of probing into their personal history and deeply held opinions.  It also simultaneously gives many people a support for their convictions because of the more positive connotation.  In other words, it’s hard to get a panelist to talk about an opinion if they perceive that in doing so they will be labeled by others as "biased" or "prejudiced."  If instead they are simply discussing life filters based on prior experiences, they will defend those opinions for as long as necessary.  The result is more talkative juries, which is ultimately what we want.  

In any lawsuit involving coverage or bad faith issues involving an insurance carrier, filter identification is always case dispositive.  In two decades of trying bad faith cases all across the country, I have learned that filters regarding insurance companies, claims handling, insured conduct, policy benefits, and a host of related issues are significant and complex.  To illustrate, both the cases I tried this Fall involved hurricanes.  The Hurricane Katrina case tried in Dallas involved radically different filters than those I saw in juries I have had in prior years in Biloxi or New Orleans because the filters of individuals who have lived through hurricanes on the coast are radically different than most people in Dallas who have never experienced a hurricane or dealt with a hurricane insurance claim.  In fact, the one juror with the most negative filters on that Dallas jury evacuated from New Orleans after Katrina and brought a very activist role to the jury (which resulted in a very bizarre verdict as that one juror tempted to forge a compromise in order to give the insured something for their hurricane claims despite overwhelming evidence of a lack of coverage.)  Similarly, another hurricane case tried in Beaumont, Texas this Fall resulted in radically different filters when every single member of the venire panel, and consequently every single member of the jury, had personally lived through two recent hurricanes, Rita and Ike, and each had their own insurance claims in one or both storms over the last five years. The filters possessed by those individuals regarding what an insurance company should or shouldn’t do was radically different than that which I experienced just two weeks earlier 200 miles north in Dallas. 

But, these issues transcend jurisdictional perceptions. No one should equate “filters” with jurisdictional labels.  I try a lot of lawsuits in “bad” jurisdictions or jurisdictions that are generally perceived to be liberal or "Plaintiff oriented."  Even in such jurisdictions, filters are as divergent and personalized as in any other part of the country.  A tremendous danger exists when counsel or client apply their own bias or prejudice to assumptions regarding the filters in a jurisdiction known for anti-insurer sentiment.  I was reminded of this lesson in a profound way in 2004 while doing extensive jury research on mold claims and mold lawsuits back during the pinnacle of that litigation.  Our jury research showed that those individuals with the strongest propensity to hold homeowners responsible for not immediately cleaning up or mitigating water damage prior to the development of mold were individuals whom most defense lawyers would historically have a knee-jerk reaction to exclude from jury service.  We discovered through extensive jury research that more socio-economic blue collar individuals who own their own homes had extensive personal experience, and corresponding significant filters, regarding what a homeowner should do following a roof leak, a hot water heater leak, or other water event inside a home they owned.  Those people knew the homeowner should clear up the water fast!  This was in stark contrast to the jury profile that we typically gravitated toward of high-earning, well-educated executives who, in this context, were the least likely to exercise any personal responsibility over mitigating the effects of a water event and, instead, rely exclusively upon an insurance company to do so.  We discovered these filters based on life experience were case dispositive in certain types of mold claims where the primary defense involved the homeowners’ responsibility for their own mold problems due to failure to remediate the water event timely.  My 2010 trials re-emphasized these truths even more and reminded me of the importance of filter identification and filter probing in every case. 

The bottom line is simple but profound: it doesn’t matter how good the coverage position is, how bad the policyholder acted, or how well the insurance company responded, if the individuals impaneled on a jury have certain life filters that are not identified, those jurors will hear, see, and filter the evidence and the testimony in a way radically different than the carrier or its defense counsel have throughout the pendency of the claim and the suit.  In that circumstance, the result is always disastrous for the insurer. 

            Next time; Part 2: Dealing with Anti-Insurer Feelings on Juries.