THE IMPORTANCE OF JURORS' DIRECT EXPERIENCE IN JURY TRIALS

Copyright
Robert V. Wells
2003

INTRODUCTION

Discovering jurors' direct experiences with the issues or instrumentalities of a case is a critical part of the voir dire process. Jurors' direct experiences in certain instances control their decision making during the trial. Their direct experiences may determine how they will hear evidence and how they will decide the ultimate outcome. Therefore, it is important that as trial lawyers, we understand the nature and power of direct experiences and that we seek them out during the voir dire process.

THE NATURE OF DIRECT EXPERIENCE

Direct experience occurs when we experience something first hand and personally. When we eat an onion, we directly experience the onion through our senses and we form opinions, beliefs and attitudes about the onion. We tast the onion personally and while doing so we draw conclusions and form beliefs and attitudes about it's taste. It tastes good, it tastess bad, it smells good, it smells bad. We actually feel the texture of the onion when it is chewed and swallowed. If we eat onions on a hamberger we learn that onions taste bad when eaten raw and by themselves, but taste good when eaten on a hamburger.

Indirect experience occurs when we don't experience something personally and directly, but rather, learn about something second hand or indirectly. We have never eaten an onion, but friends tell us about how it tasted when they actually tried an onion. We read about how an onion tastes or we see someone eating an onion on television. Just like with direct experience, when we are indirectly experiencing the onion by hearing about it or reading about it, we are drawing conclusions and forming beliefs about the onion.

Attitudes and opinions based on direct experience are stronger than attitudes and opinions based on indirect experience, because in the case of direct experience attitudes, we absolutely know the onion tasted good or bad, because we actually put the onion in our mouths and chewed it and we know exactly and precisely how it tastes--there is no question in our minds. In the case of indirect experience, our opinion about the taste of onions is not as strong as the opinion based on direct experience, because while we think we have a pretty good idea about how an onion would taste, since we did not experience it personally, we do not have that inner experience of knowing exactly how the onion tastes-- we are less sure of our opinion and are susceptible to changing our opinion or attitudes. My friend told me that onions tasted bad, so I formed the opinion that onions tasted bad because because I trust my friend's judgment, because, after all he is my friend. However, if my wife comes along and tells me that raw onions, by themselves don't taste very good, but when they are sliced and put on grilled hamburgers they taste good, I might be willing to change my belief. If I trust my wife more than I trust my friend, then I may change my attitude about the taste of onions. Thus, attitudes based on direct experience are generally stronger and less susceptible to change based on persuasive appeal.

Sometimes, attitudes based on indirect experiences may almost rise to the level of direct experiences due to the source of the indirect experience. i may not have experienced a permanent soft tissue injury, but my father has directly experienced such an injury. I have known my father before and after the injury and I know he has an injury, that it is permanent, and that he suffers from the effects of th injury. Since my father is not a complainer and is honest, I believe his accounts of his injury. I have personally watched him suffer from his injury. Although, I have not directly experienced the soft tissue injury, it is almost as if I have directly experienced the injury, because I am so close to my father, I know that the injury occurred and exists.

IMPLICATIONS OF DIRECT EXPERIENCE IN JURY TRIALS

The strength of direct experience verses indirect experience has several important implications for the jury process, and in particular, voir dire. First, jurors who have directly experienced an issue in the case may have formed strong additudes about that issue. If the key issue in the case is whether the plaintiff's soft tissue injury is permanent, those jurors who have personally and directly expienced soft tissue injuries will have stronger opinions about soft tissue injuries based on those direct experiences. A person who has suffered from a soft tissue neck injury sustained in an automobile collision 10 years ago, will believe that people can and do get permanent soft tissue injuries from automobile collisions. A juror with a direct experience such as this will be less susceptible to the defense suggestion that the plaintiff's injury should not have lasted more than six weeks and is not permanent.

Given that opinions based on personal experience will be stronger than those based on indirect experiences, it is absolutely critical that, as trial lawyers, we are aware of how the jurors' personal experiences could relate to the issues of our case and that we specifically ask jurors about their personal expreiences with teh issues in teh case. If the issue is whether the plaintiff's soft tissue injury is permanent, we will want to ask all jurors who have experienced soft tissue injuries to identify themselves, and then we will want to individually discuss the injury with each of them. We will want to ask them questions such as, "what caused their injuries, what kind of medical treatment did they receive, whether or not their injuries healed or are they still suffering from the effects of the injuries, do they feel that their injuries are permanent, do the injuries cause pain and limitation, and how do the injuries affect their daily lives."

Thus, whether the issue is whether a soft tissue injury is permanent, whether a doctor was negligent, or whether police officers testify falsely, we must discover the jurors' direct experiences with these issues. A juror who has personally and directly experienced medical malpractice will be open to hearing a plaintiff's claim while the wife of a doctor who has had to defend against malpractice claims will not.

It is also important that we question jurors about the experiences of their family members because in these cases, although the jurors may not have had direct experiences with malpracice, their spouses, children or parents may have had direct experiences, and these direct experiences of the jurors' loved ones may cause the jurors' indirect experiences to rise to the level of direct experiences. A person who has watched while a close relative was victimized by the negligence of a doctor may feel just as strongly about the issues of malpractice as if they themselves had experienced malpractice first hand.

Once we know the jurors' experiences, we will want to challenge those jurors with personal experiences adverse to our case and try to get them to admit their prejudices. For example, in a medical negligence case, a doctor's wife could be asked if she will require a higher degree of proof than the law requires because of her personal experiences as a doctor's wife. She could also be asked whether she would find it hard to render a verdict against a doctor and then go home to face her husband the doctor. In an automobile case, insurance adjustors could be asked if they thought it would be fair to have a juror composed of twelve insurance adjustors. We will want to get commitments from those jurors with experiences that may adversely affect our case that they will not go against he evidence and the law just because of their personal experiences. They should be asked, "if we prove our case, that is, if we prove that the defendant is negligent and that, as a result of that negligence, the plaintiff suffered damage, if we prove that we are entitled to a verdict, will you be able to put your personal experiences aside and return a verdict for the plaintiff?"

CONCLUSION