The Trial Practice Tips Weblog

Jury Selection: Address the Negatives Head-On

Even though one key to an effective jury selection is getting potential jurors to share their biases with you, some lawyers are afraid to deal head-on with topics that they view as potential weaknesses in their case. This can be precisely the wrong approach to take.

During jury selection, seize upon any comments from potential jurors you perceive as negative as a chance to expose the panel to your point of view. Has one of the jurors admitted that he doesn't trust corporations? It's the defense lawyer's chance to remind the panel that corporations are not cold-hearted abstractions, but are made up, from top to bottom, of people like those sitting on the panel.

Has another juror, expressing an anti-plaintiff sentiment, complained about the McDonald's case? It's the plaintiff lawyer's chance not only to point out the severity of the injuries in the McDonald's case, but also to assure the jury that frivolous cases, when they exist, are wrong--and that the case at bar can be distinguished from any case in which the plaintiff was not truly harmed.

While this might be Jury Selection 101 to some, it also suggests a way to develop a plan for jury selection that will work for any case: make a list of the five or ten things about your case or defense that worry you the most, then prepare counter-arguments in the form of questions that can be presented to the panel when those issues arise.

Part II: "Jury Selection: Expressing a Point of View with Questions."

Class Actions: Adding New Plaintiffs Does Not Commence a New Lawsuit for Purposes of CAFA

In Phillips v. Ford (consolidated with Boxdorfer v. DaimlerChrysler) (pdf), the Seventh Circuit issued a ruling about the Class Action Fairness Act that should come as no surprise to anyone who has been following the Seventh Circuit's other CAFA rulings.

While the Seventh Circuit has issued other rulings denying a defendant's attempt to remove pre-CAFA state-court class actions to federal court based on events that happened in the case after CAFA was enacted, there has not been a specific ruling on the question  of whether adding new class representatives amounted to the "commencement" of a new case under CAFA.

After Phillips, the answer is no. In Phillips, the Seventh Circuit ruled that amending a state-court class action to add or substitute new plaintiffs does not "commence" a new case under CAFA. If the state-court class action was filed before CAFA was enacted, the addition of the new plaintiffs will not trigger a CAFA-sanctioned removal to federal court.

For other Seventh Circuit CAFA rulings, see the "class action" category of this weblog, as well as the excellent CAFA Law Blog published by McGlinchey Stafford PLLC.