Voir Dire in a Railroad Case by Ben B. Saunders

Voir Dire in a Railroad Case

By: Ben B. Saunders
Association of Trial Lawyers of America

Voir Dire in a railroad case is essential not only for the same reasons you have in every personal injury case, but also because there is no workmen's compensation on the railroad and the jury must understand this is a FELA claimant's only chance to recover for an on-the-job injury.

Suppose you have a client who has been legitimately injured on the railroad.

You are in Federal Court.

Your job is to pick and fair and impartial jury and deselect those with political, philosophical, and religious prejudices.

You have a strict Federal Judge who realizes to control his courtroom he must be the head and master of it and you.

To let you voir dire relinquishes control.

The cure all question used by the jurist, after his questions are asked to each juror, is: "Despite what you have volunteered, will you agree to be fair?"

A "yes" to this question is the elixir that cures all and allows this juror to sit.

The question thus becomes how do you get a fair jury in order to get a fair trial with such dynamics.

Today the press has so molded the American public, but for a small number of hot bed liberal forums, that conservatism is the philosophical standard and the belief emanating from it is "Stuff Happens!" If you are unlucky, accept your fate.

What must be pondered by the judiciary is whether this is indeed in keeping with the oath taken by each member of the court when they swore to uphold the United States Constitution and administer a fair trial.

Are fair calls to both sides during the course of trial sufficient to guarantee a fair trial if a fair jury was not empaneled?

Until the Federal Judiciary accepts the premise that both plaintiff and defense lawyers must voir dire the jury, fair trials will not be the rule of the day in conservative court houses any more that they are in ultra liberal pockets of this country where every juror believes a multi-million dollar verdict is warranted for a hangnail.

The question we must each ask ourselves, if we are truly going to have relative justice in this country is, "What is the human thing to do?"

Did you ever wonder if justice in our Court System is real or only relative?

A high profile example of this question are the O.J. Simpson trials.

Was justice done in the criminal case, or was justice done in the civil case considering the opposing results?

It is suggested the solution to this dilemma is moderation. Meeting in the middle is the key to a fair and impartial trial with a just result. Any deviation to either extreme renders injustice.

Let me explain how this relates to voir dire examination.

One extreme in Federal Court occurs when a Judge who is appointed for life, falls victim to his own idiosyncracies in an effort to control his courtroom and render speedy justice. In order to move cases and his docket he denies both sides the right to probe prospective jurors as to their real attitudes thereby saving a lot of time. Often, in such courts, the Judge's control of the lawyers and the courtroom becomes so obsessive that both sides, plaintiff and defense, are forbidden to select (or deselect) a jury other than to strike from a list.

Is justice rendered when a panel composed of 50% insurance agents are seated to try the case of an injured railroader, and the Court allows them to stay because they tell him they can be fair even though they are philosophically oriented against claimants? This is wrong. This is not a fair and impartial jury. To leave an insurance agent on the jury to try the case of an injured plaintiff is not going to render a fair result even though the individual juror may be a reasonable person because he cannot help but vote his philosophy if he is going to be true to himself.

By the same token, to put a professional claimant in the jury box, is just as unfair to the defense.

How then are these people weeded out?

Only by allowing lawyer voir dire.

So only in courts where attorney voir dire is permitted, does either side stand a chance of getting an impartial jury with the hope of obtaining relative justice.

Only by giving each side time and allowing permissible questions to be asked of the panel can attorneys become satisfied a juror is not holding a grudge or an opinion that would keep him from voting fairly at the conclusion of the evidence.

To illustrate, many believe if a person is injured on the job, he receives workmen's compensation. Thus, if he is in Court, he is trying to get something more. This is a topic which must be explored in voir dire.

The question, from the plaintiff's standpoint, is whenever anyone has a problem with an individual seeking money for injuries because he was hurt on his job where his sole remedy is to collect in Court because it is a FELA case and no workmen's compensation covers him.

This is also true in Jones Act cases or third party tort actions where claimants can recover the full measure of damages.

Additionally, jurors must be questioned as to whether they have a problem awarding the full measure of damages if the law permits it. The full measure of damages should be explained carefully to the jury so each juror can ascertain the elements included. Each element should be explained so the jury understands. Each juror, if possible, should be questioned as to his or her own personal beliefs on each and every element encompassed.

The same goes for religion. This should be crucial from both the plaintiff and defense sides.

Years ago we tried a FELA case in Birmingham where a gentleman of a certain religious persuasion believed God did not want people to have money.

In another case, a good friend, who is a defense lawyer in Jacksonville, had a friend who believed you must give away everything because the world is ending, so as a practical matter "what difference does it make?"

Now do you see why a controlling judge who totally disallows voir dire can reek devastation to the plaintiff or the defendant by not allowing either side to explore juror beliefs? The defense lawyer could sit down and look at 6 suits on the jury and be very pleased; never dreaming one of them was so far right, he has actually left and a liberal. Do you get my drift gentlemen?

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