Personal Responsibility Bias

Apparently, the most recent edition of Litigating Tort Cases, the bible of the Association of Trial Lawyers of America contains a chapter advising attorneys to identify people with "extreme views on personal responsibility." Warning signs for "personal responsibility bias" include espousing "traditional family values" and holding "strong religious beliefs." What to do about these folks? "The only solution is to identify these jurors during voir dire and exclude them from the jury." (Hat tip: Radley Balko.)

Comments

[elares]

Peter, who do you think really bears the cost when a manufacturer pays? Those higher costs of doing business are passed on to all of us. It's not a choice between the manufacturer and the taxpayer.

[book 'em, Dano]

Joe:
When asked if I wanted to be on the jury, I honestly replied, "It doesn't matter to me either way." I was the only male chosen, the ladies made me foreman, and we found the perp guilty as charged.

[Obvious]

Joe,

I'm sure they saw the same thing everyone else sees about you. You're an asshole.

[dhex]

we don't all buy the same stuff.
we do all pay taxes, unless we're lucky enough to be low level drug dealers or other street-level merchants in off the books materials.

[book 'em, Dano]

Yikes!

[rst]

Joe I think Brad is getting at something else. Wenner claims he's only looking for a fair jury, but in fact he's looking for a jury that espouses a specific cultural mindset, not necessarily representative of the jury pool - the peers - as a whole. Excluding people who think everyone around them should live their lives by the Bible is one thing. Culling the pool for the moral centrists and pretending that's a jury of one's peers is something entirely different.

[Luca Brasi]

Is anyone else not suprised that Joe has a pony tail?

[SteveInClearwater]

I've only been reading and modestly posting here for a few months, so I don't really know all the names and cyberfaces.

But I'm figuring that if someone here has sufficient cause to call Joe or anyone else an asshole, they could at least stand behind their own name, rather than an anonymous Flame. I will say I've noticed such crap here to be at a minimum, but it still stains any reasonable gathering of minds, regardless of the Topic.

[brendan]

Peter said,

"Better the negligent party (bad driver, dangerous product manufacturer, etc.) pay the cost than the taxpayers."

Elares said,

"Those higher costs of doing business are passed on to all of us."

I think Peter is right because I don't think he implies that a manufacturer should pay punitive damages. Negligence, on the other hand, is a cost of the product. If the manufacturer sells a product that is faulty, then the product is in a essentially subsidised by the consumer, assuming the consumer has no way of knowing the defective nature of the product. Forcing the manufacturer to pay for the negligence is, in a sense, a tax on that item the restore it to it's economically efficient price.

I just love economic efficiency.

[brendan]

Actually, I pictured Joe having a more conservative look. I guess his penchant for logic and all that.

[brendan]

I think I might lie to get on a jury just so I could let someone off. How about that? No, I hate drugs drugs are bad. Marijuana growers are the scourge of society. Okay, I wouldn't lie, but a guy can dream.

[PLC]

Brendan - that was sarcasm, correct?

[joe]

"had" a ponytail. The old haircut wasn't working with the new hairline.

rst, I think your argument boils down to 1) semantics and 2) a preference for people who think like you. Semantics, because "trying to get a fair jury" is inevitably going to involve "culling" some set of people. And the end of your post is basically an argument that excluding people who are like you is bad, but excluding people who are unlike you is good.

Anyway, I don't think they're trying to eliminate moral centrists. I think they're using centrist language as bait, to try to get radicals to bite without seeing the hook.

[greg]

It is important to remember that there is a difference between legal negligence and actual negligence. Actual negligence is when you forget to do something obvious and someone get hurt as a result. Legal "negligence" is when you fail to forsee every possible asinine thing a person could possibly do to hurt them selves and fail to take every extrodinary step to prevent those injuries.

When I first got to law school i still had a modicum of respect for the legal system. No longer. In my first torts class we learned about the most ridiculous case law you could imagine for negligence.

Here is my rule of thumb, I would not even consider ruling for negligence plaintiff, ever. I would consider ruling for a gross negligence plaintiff, because at least those standards still slightly resemle what the actual word negligence means.

[dhex]

"The old haircut wasn't working with the new hairline."

i certainly do feel your pain, kinda. my haircut stopped working around age 17 or so, and i think i've been more or less shaved for the 9 years since. though every week i notice i have less and less to cut... 🙂

but the bald thing works well with the ladies, which will come in handy once i get married.

i've only been called for jury duty once (i got notices while i was away in an out-of-state school but they don't count) and we were dismissed after 3 hours of sitting in the courthouse on jay st. in downtown brooklyn. i'd love to get on a jury, if only to have the experience of being on a jury and handing out jury nullification cards and all that cool stuff.

[dhex]

and all the gavel pounding. that shit looks hot!

[greg]

I was recently placed on jury selection for a crack undercover buy and bust in manhattan.

The first question the judge asks when before the attorney's even get started is along these lines

If i instruct you on the law and the burdens of proving guilt and the prosecutor meets that burden do you understand that you must rule in favor of the prosecutor.

Then

If i instruct you on the law and the burdens of proving guilt and the prosecutor fails to meet that burden do you understand that you must aquit.

This basically means do you accept that you have no right to jury nullification. (if the entire jury rules for guilty when there is obvious doubt the judge can always set aside the verdict which is not true in the opposite case)

Anyway, before he got to the second part I stopped him and said no, sort of asserting my right to jury nullifciation. He basically tried to shame me into changing my answer and then said that as a lawyer i should know better. It didnt matter, the prosecutor didn't even ask me any questions and I was off.

When we were out in the hallway for a minute two other jurors came up and bascally asked if what i did was legal, ie. telling the judge you would not follow his jury instructions. They had no idea that they were allowed to ajudicate on both the facts AND THE LAW. I reminded them that a judge can never throw you in jail because of your ruling in case, regarless of how guilty the guy is. but i was still suprised that no one had ever heard of the concept before.

Side note - It was kind of obvious that the guy was guilty and only didnt take the plea because there was a problem with the evidence, which was apparent from the other prelim jury questions. I ran in to the prosecutor later and found out he was convicted.

[brendan]

Greg says:

"I would consider ruling for a gross negligence plaintiff, because at least those standards still slightly resemle what the actual word negligence means. "

When I say negligence, I probably actually mean gross negligence. But then, I'm a person who believes in an extreme version of personal responsibility.

I don't think we should have to warn people not to put a cat in their microwave.

[Russ]

Is that how curiosity killed the cat?

[Abu Hamza]

Why isn't the word "Bible" capitalized in the post? I have noticed more and more in my paper (KC Star) that the word "Bible" or "Biblical" is not capitalized. Yet I have never read "koran" uncapitalized or, to those who wrap themselves in their sophistication and show-off political correctness, "quo'ran" uncapitalized. So, the question, why the undeserved demotion of the Christian Bible to uncapitalized status, and the unearned promotion of the Muslim Koran to always-capitalized status? What gives?

[joe]

The Bible looms so large in our culture that it has taken on additional definitions, including "the definitive book on a subject." Bible is capitalized when it is a proper noun, but its newer meaning is not a proper noun.

Sort of like Kleenex.

[not a theist]

"Sort of like Kleenex."

Thanks for one more use for the bible.

Abu:
"Bible" means "book", and some Christians actually read parts of it when feeling sad or guilty.

[dhex]

and of course, rolling those untaxed goods in. (an idea better left on paper, har har har)

[Julian Sanchez]

bible (n)

1 capitalized a : the sacred scriptures of Christians comprising the Old Testament and the New Testament b : the sacred scriptures of some other religion (as Judaism)
2 obsolete : BOOK
3 capitalized : a copy or an edition of the Bible
4 : a publication that is preeminent especially in authoritativeness or wide readership [the fisherman's bible] [the bible of the entertainment industry]

[david f]

thanks, obvious. you've really added today.

SteveinClearwater - welcome to this little zoo. you shoulda been here last summer - it was attack of the flaming trolls. it really made you wish that those idiots went to their community colleges year round!

joe and dhex - just do the shave thing. that works for the "five-head". and you can grow out tufts for horns during halloween season!

if you wanna get off jury duty, just say with an innocent expression, "mommie always said policement only beat black people". and you're free for lunch.

seriously, how do you people get picked and not eliminated? don't they go on the "college degree or higher = dismissal"??

one case a relative of mine was on (as a witness) involved a PhD Biochemist and some technical data. the prosecution attorney (some malpractice case) asked the MD on the stand, "what does PhD stand for"
Answer: "doctor of philosophy"
Lawyer: "so. this philosopher did these [scientific] tests..."

the damages for a case where the patient was non-compliant (no clincial neglegence) were substantial. so much for justice...

happy friday,
drf

[JD]

I'm not surprised at all, except maybe by how blatant the wording was. We've known they do this stuff for a long time. The last time I was called up for jury duty, I was voir dired for a drug case (nothing violent or special, just the cops catching some guy with intent to distribute), and the judge basically said "if the prosecution proves its case according to the law, you must convict; your feelings about the law cannot enter into it" and asked if we didn't think we could do this. I raised my hand (a few others did too) and the judge went around and asked for our justification. I explained that I didn't feel I could separate my beliefs about the law from the process of convicting a man under that law, and the judge gave me a snotty little lecture about how you can disagree with the law without it being a moral issue. Not only do I disagree, of course, but now I understand the courthouse bathroom graffiti about that judge, too.

It's a sad thing that winning a court case seems to be more about stacking the jury before the trial even starts than it is about convincing representative citizens of the rectitude of your case. Maybe next time I'll lie and keep my mouth shut.

[joe]

Nobody answered me last time, so I'll ask again.

Is the Emmitt Till case an example of jury nullification?

[Warren]

Voir dire is simply a tool of oppression. A jury trial is a check on the power of the establishment, a way to keep power in the hands of the people. Jurors are given the dilemma; "You have to live with what you decide. If you lock the guy up, we may arrest you next. If you let him go, he might slit your throat next."

The voir dire process allows the establishment to hold a jury trial but still retain it's grasp on the reigns of power by not allowing people who think for themselves to sit on one.

[Kevin Carson]

goddammit,

While you're at it, I wish they'd quit screening out people who believe in jury nullification.

[Andy D.]

Those instructions judges are giving are illegal, no? Has anyone recently pursued this issue in court? Maybe someone appealing a verdict because the jurors were improperly instructed on jury nullification? Maybe they can get away with screening jurors based on willingness to nullify the law, but I've heard that judges give similar instructions to juries before they go off and deliberate, explicitly instructing them that it is their duty to uphold the law as it stands.

As a side note, I think the idea of jury nullification lost some popularity because the media applied the term to the OJ Simpson criminal trial.

[Peter]

elares --

Yes, the manufacturer of the defective product will pass on to the consumers the cost of the damages it has to pay, but only to the extent the market will bear such a pass-on.

The manufacturer of the defective product will be in competition with more careful manufacturers, who will have less accidents, cause less damages, and will have less of such costs to pass on. Thus the market will not let an unlimited amount of damages get passed to consumers.

[Ron Hardin]

They're allowed to do that, but not infinitely often. So they have a version of the secretary problem http://www25.brinkster.com/ranmath/problems/secy.htm , how many to reject before settling for one, before their choices run out. That lets them reach down only so far (a determined amount) into the liberal population, but no farther. It's not a matter of great principle but just optimization. If it's a public problem, just change the parameters, say jury size (increase it) or number of rejects (decrease it) until it's acceptable.

[goddammit]

Can anyone explain to me why we shouldn't eliminate voir dire and go back to "a jury of your peers"? (Obviously, it would be ok to exclude jurors who are related to, employed by the accused, or have some other conflict of interest...)

[max power]

What a horrible and demoralizing thing this is. If you think the following:

"People should be self-reliant, responsible, and self-disciplined. When people act irresponsibly and are not self-disciplined, there are consequences. People must be accountable for their conduct."

...the trial lawyers would label you an extremist. I would label you a grown-up.

[Brad S]

max power - I agree. I mean, I understand jury selection and all, but it bothers me that someone who believes that actions have consequences is somehow an extremist.

[Keith]

My aunt is a retired insurance claims adjuster. When called one time for jury duty (civil slip-and-fall against a business, brought by an unemployed obese individual, who claimed punitive lost wages), she FULLY EXPECTED to be excluded by the plaintiff's laywer... but no. And she and a 25 year old man juror stood on "not one cent" against the other 10 jurors': "But she's hurt! She'll get nothing!" line of argument. In the end, to resolve the case, they agreed to award her the actual out of pocket medical bills and $1 for punitive damages. I like that story.

[Peter]

I think personal responsibility includes financial responsibility for the consequences of negligence. Better the negligent party (bad driver, dangerous product manufacturer, etc.) pay the cost than the taxpayers. I think I'm a good pick for a plaintiff's lawyer with a good case.

[joe]

Max and Brad, I don't think you get how this works. A district attorney trying to prosecute someone for a racist assault isn't going to ask the jurors, "Do you think all the n-----s should be sent back to the jungle?" The racists will immediately realize what's going on, and give the "right" answer. He's going to ask "Are you a racist twit?" in a manner that sounds reasonable to a racist twit. So of course they're going to try to smoke out individualist radicals by asking questions that make the position sound like a reasonable one.

[Andy D.]

Peter, right, a negligent manufacturer should pay for damages caused by a defective product, but even use of a good product can be harmful if the user does something stupid or clumsy. Case in point, I crashed on my bike the other day when my handlebar grip slipped off the bike. Bad design I think, but I knew the thing was in danger of slipping off beforehand and didn't bother to do anything about it. If I'd been more seriously injured, I'd still never sue the manufacturer... I should have been more careful.

[D Lusional]

At the very least this is useful information on to avoid getting selected for a jury - and it's neater than druling on yourself during voir dire.

[joe]

I got booted off a jury pool - not just passed over, but called up in order to be dismissed - for

1) having a pony tail, and

2) volunteering, after being asked if I was a lawyer or had a relative who was a cop, that I had a relative who was a lawyer.

The case was a guy allegedly assaulted a police officer with a knife. I guess people with pony tails who don't keep their mouths shut are stereotyped as anti-cop. Who knew?

[Ted Frank]

Andy D. -- "jury nullification" has been litigated for years. There's no right to a jury nullification instruction. It's a de facto problem, rather than a de jure right.

[Sandy]

joe:

I served on a jury for a case of alleged child molestation. The judge asked the same question of me (rather conservative-looking, blue suit and all) and had anybody who was related to or otherwise involved with a lawyer or police officer or court member taken off--similarly those who had encounters with the law (such as filling out a police report for stolen property). I think, though I was not told, that it's a way to ensure there are no mistrials declared because of conflict of interest on the part of a juror.

Given the number of lawyers, it's amazing anybody serves.

(found the guy not guilty, there was conflicting testimony and no physical evidence, and the burdens set up by the laws were sufficient that intent would have to be proved and the prosecutor didn't even get close to that. I really hated that case, as it wasn't clear cut either way.)

[dhex]

david - i've been shaving my head for about 5 years now. it's definitely the way to go for the hair impaired.

[david f]

excellent, dhex. are you a "david", too? i ran into a "david hexum" some time ago back east - he had libertarian leanings, and a pic of a newborn he was showing, and this real fantistic "first time daddy" grin!

if you're the same - philly airport dec 2001, next to the drunken russian - that was hilarious and thanks for the last round, again.

happy holidays, happy new year!

drf

[RJWalker]

The lead bit says: "Apparently, the most recent edition of Litigating Tort Cases, the bible of the Association of Trial Lawyers of America contains a chapter advising attorneys to identify people with "extreme views on personal responsibility." Warning signs for "personal responsibility bias" include espousing "traditional family values" and holding "strong religious beliefs." What to do about these folks? "The only solution is to identify _THESE JURORS_ during voir dire and exclude them from the jury." [Empghasis added.]

To which jurors does that "them" refer? Jurors holding extreme views or jurors holding religious views.

Every descritpion I have read of the book in question assumes the latter, but none actually produces any evidence from the book to show that the author intended anything other than avoiding potential jurors with extreme views and that his refernce to religious views merely charts a starting point for finding people with extreme views.

Suppose for some reason you wanted to know about some obscure point on Christian theology. Wouldn't you start your search by looking for either Christians or theologians?

So, if people with extrenme views on "personal responsibility" are the object of the search, and they most often are found in the group calling itself Christian, isn't that where you'd satrt looking for them?

[Davidson Jean]

EMAIL: [e-mail]
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DATE: 01/22/2004 03:21:01
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