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  • Taking Chances2:24

           In the selection of a jury, lawyers from both sides try to choose people who will be sympathetic to their client.  Through questioning and peremptory challenges, lawyers determine who will sit in the jury box.  Regardless of the type of case, attorneys try to find jurors who are not against their clients before the case is presented.  

            In Flynn v. Edmonds, a recent medical malpractice claim in Illinois, the plaintiff's lawyer objected to three jurors, whom he believed were biased, after the jury returned a verdict for the defense. 

            The plaintiff dislocated his elbow and subsequently suffered from "compartment syndrome".  The only treatment for "compartment syndrome" is a fasciotomy which was done the same day that the "compartment syndrome" was diagnosed.  The plaintiff sued his doctor for damages relating to a delayed diagnosis.  The plaintiff argued that if the fasciotomy had been performed sooner, the plaintiff would not have needed extensive vascular surgery to reestablish circulation.  The jury found for the defense.  The plaintiff appealed arguing that three of the jurors should have been excused because they were biased.

            Plaintiff's attorney argued for a mistrial based on his belief that three of the jurors were prejudiced in favor of the defense.  Plaintiff's counsel argued that the first juror could not make an unbiased decision because his son was being treated by another orthopedic surgeon at the defendant doctor's clinic.  The second juror, when questioned about damages, mentioned that he would be hesitant in awarding damages for pain and suffering.  During jury selection, the third juror talked about insurance as related to medical malpractice. 

            The court dismissed the plaintiff's argument for a mistrial.  The court further stated that the jurors had expressed their impartiality and these three jurors would not be more or less inclined to return a verdict in favor of the defendant than any other juror on the panel. 

            A tool frequently used by lawyers to empanel a favorable jury is the peremptory challenge.  Both the plaintiff and the defendant are given a specific number of peremptory challenges to use at their discretion.  Theoretically, no reason needs to be given in order to dismiss these jurors.  However, peremptory challenges are no longer unconditional.  In Batson v. Kentucky, the Supreme Court ruled that jurors could not be dismissed solely on the basis of race.  This year the Supreme Court added new restrictions to peremptory challenges (J.E.B. v. Alabama ex. rel. T.B.).

    The case that prompted the Supreme Court decision is J.E.B. v. Alabama ex. rel. T.B., a paternity and child support case in which an all female jury was empaneled.  Challenges based on sex have now been deemed unconstitutional by the Supreme Court, raising many questions about the usefulness of peremptory challenges.  It is undeniable that gender plays a role in a person's life experience.  Justice O'Connor, in her concurring opinion, stated "Individuals are not expected to ignore as jurors what they know as men and women."  Many wonder whether the Supreme Court's restrictions will extend to national origin, religion or age. 

            Peremptory challenges may soon become obsolete.  If every challenge is questioned it will become more difficult for either side to excuse those jurors whom they believe will not act fairly.  Counsel will be forced to develop a theory as to why they feel uneasy about a potential juror. 

            A jury's gender related sympathy may sway the outcome of some medical malpractice cases.  For example, in cases where the patient suffers from breast cancer a female juror may relate to the patient better than a male juror.  Likewise, a male juror's sympathies may lie with the patient who suffers from cancer of the prostate.  The Supreme Court has decided that peremptory challenges formerly used to excuse jurors based on this type of bias will no longer be permitted.

            It is clear that an individual juror can have a significant impact on the outcome of a case.  The determination of bias on the part of a potential juror is subjective.  The new ruling by the Supreme Court on gender bias will surely complicate matters.

Biased Jurors

by Attorney Frank E. Reardon

August 1994


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