Last year, I tried six civil jury cases to a verdict (2 medical malpractice and 4 personal injury) in five different counties (York, Cumberland, Androscoggin, Penobscot, and Aroostook). Along this journey, I learned three important lessons: (1) proceed with caution in stipulating to liability, (2) apply new approaches to jury selection, and (3) harness the power of core truths.
- Proceed with Caution in Stipulating to Liability
In several of my trials, Defendants sought to stipulate to liability on the eve of trial. Defendants often emphasize their good intentions when they extend these stipulations to liability: “we take responsibility;” “we just want to simplify the case;” “we don’t need to waste time;” etc. Not surprisingly, Defendants often have ulterior motives in seeking to stipulate to liability. Defendants want to divorce the actions that caused the harm from the harm itself. If you accept a stipulation to liability, the Defendant will then argue that all of the negligent actions that caused your client’s injuries are irrelevant. Defendants may use the stipulation as shield to neutralize powerful facts in your case and to preclude your presentation of a cohesive story about the incident that caused your client’s injuries.
In a medical malpractice case, I tried in the Penobscot Superior Court in December 2019, a surgeon sought to stipulate that he was negligent in installing mesh backwards during a hernia repair. The surgeon had previously denied that he was negligent in his answer. When we refused to accept the Defendants’ stipulation, the Defendants moved in limine to exclude the Plaintiff from introducing evidence of the Defendant’s negligence. After a hearing, the Superior Court denied the Defendants’ motion.
At trial, we called the surgeon to testify on issues pertaining to liability and damages. We also called an expert in general surgery, who fully described the errors that had been made during our client’s surgery and the systems that every surgeon should have in place to prevent such errors from occurring. Our expert also drew helpful illustrations for the jury to demonstrate the errors that had been made. This evidence was critical for the jury to fully understand the negligence and to appreciate the severity of our client’s injuries.
In Maine, a stipulation requires agreement by both parties. The Law Court has held that a party bearing the burden of proof is generally allowed to present its “entire case,” and is under no obligation to accept a proposed stipulation. In Maine v. Michaud, the Law Court affirmed a conviction in which the trial court admitted evidence of the extent of the victim’s injuries through testimony and photographs despite the Defendant’s proposal to stipulate to the element of serious bodily injury. The Law Court explained its holding as follows: “[t]he State is not required to accept a stipulation from the defendant. The State mut be allowed, within the rules and bounds of justice, to present its entire case . . . Therefore, although Michaud offered to stipulate to the injuries before trial, the State was under no obligation to accept the stipulation.”
In support of this holding, the Law Court cited Old Chief v. United States, 519 U.S. 172, 189 (1997):
People who hear a story interrupted by gaps of abstractions may be puzzled at the missing chapters . . . A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.
There can be compelling reasons to stipulate to liability; however, just because a Defendant proposes a stipulation does not mean you are obligated to accept it. Ultimately, a stipulation carries with it inherent risks and benefits. It is critical to weigh these in advance of trial and discuss them with your client.
- Apply New Approaches to Jury Selection
Jury selection may be the single most important part of a trial. Ensuring the selection of a fair and impartial jury is critical to providing your client with an opportunity to prevail. All it takes is one or two jurors who have underlying biases or prejudices towards you, your client, or your case to undo all of your hard work at trial. The traditional jury selection process in which judges question prospective jurors is often ineffective at identifying fair and impartial jurors, because it is not robust enough to provide “reasonable assurance” that “juror prejudice, if present, will be discovered.” Moreover, voir dire directed by the Court often relies too heavily on potential juror’s self-assurances that they can be “fair and impartial.” The Law Court has explained the potential shortcomings of asking jurors to assess their own impartiality:
Asking prospective jurors to evaluate their own ability to be impartial is not always adequate, particularly if there is significant potential for juror bias. Even if prospective jurors assure the court that nothing in their past experiences would influence or affect them in any way . . . such assurance of disinterest is but one consideration.
The right to examine jurors and to exclude those who are unfit to serve is codified by statute and rule. By statute, the trial court must permit “challenges for cause” and “peremptory challenges.” Maine law provides that a juror should be excused if he or she:
- has given or formed an opinion in the cause;
- is sensible of any bias, prejudice or particular interest in the cause; or
- does not stand indifferent in the cause.
In October 2015, Chief Justice Leigh Saufley approved a pilot project for attorney-directed panel voir dire that would occur in Penobscot and Franklin Counties. This came on the heels of similar pilot projects in New Hampshire and Massachusetts. On September 1, 2019, the Maine Supreme Judicial Court amended M.R. Civ. P. 47, “Selecting Jurors.” As the Advisory Notes state, Rule 47 was amended “to state more explicitly that, in addition to oral questioning of prospective jurors by the court, the court may allow (i) use of written questionnaires or (ii) direct questioning of prospective jurors by attorneys or unrepresented parties.” Most importantly, Rule 47 provides that the court shall allow the use of questionnaires or direct questioning if the court makes the findings specified in Rule 47.
The Superior Court permitted attorney-directed voir dire in three of my six trials in 2019. The process was completed efficiently in all three cases. Attorney-directed voir dire consistently helped me to identify jurors’ preconceived beliefs and attitudes about general topics that were central to my case, such as attitudes towards awarding noneconomic damages, attitudes about people with preexisting medical conditions, and attitudes about attorneys and clients who bring personal injury lawsuits.
For example, during questioning on the topic of awarding noneconomic damages, some jurors vigorously shook their heads in the negative when asked about whether they could award money damages to compensate an injured party for pain and suffering. Other potential jurors openly expressed concern that money damages for pain and suffering were too speculative and could not eliminate a person’s pain. Other jurors explained that they would need “overwhelming” evidence of pain and suffering before they could award noneconomic damages. Without attorney-directed voir dire, these underlying biases and attitudes would not have been exposed.
Judges understandably have concerns about relinquishing control over questioning jurors to attorneys. The concerns I have heard articulated, include concern that attorneys will argue their case during voir dire, concern that questions or answers will taint the entire juror pool, and concern that the process will take too long. Rule 47 has built in safeguards to ameliorate these risks. First, Rule 47 requires a party to make the request for attorney-directed voir dire twenty-one days before jury selection. This ensures that the parties and the Court can discuss the logistics of the process in advance of the actual jury selection.
Second, Rule 47 requires attorneys to identify topics they intend to cover during attorney-directed voir dire and may require attorneys to submit specific questions to the Court in advance of jury selection. This provides the Court with advance notice about topics that may be covered and questions that may be asked so there is less likelihood for surprise.
Third, Rule 47 allows the Court to set specific time limits for direct questioning thereby eliminating the possibility that the process will carry on indefinitely.
In addition to the structural safeguards imposed by Rule 47, attorneys have strong incentives to remain within the lines of acceptable inquiry. Attorneys who run far afield in questioning risk admonishment from the Court. Just as being admonished by the Court during opening statements or closing arguments can damage an attorney’s credibility with a jury, so too can similar admonishments during jury selection. Moreover, attorneys run the risk of alienating jurors if they are not thoughtful and respectful in their questioning.
Attorney-directed voir dire can benefit plaintiffs and defendants alike, because juror bias and prejudice transcend party labels. For attorney-directed voir dire to be effective, however, the parties must develop a clear plan in advance of jury selection that outlines the topics they intend to cover and the time estimate for voir dire.
- Harness the Power of Core Truths
A core truth is a foundational principle in your case that is authentic and integral. Every case has one or more core truths that relate to the issues of liability and damages. Tapping these core truths is essential to harnessing the power of your case, because juries see cases for what they are and they can spot facades.
Core truths were particularly integral to two cases I tried in 2019. The first was a personal injury case in York County in which my client fractured his L-2 vertebra when he fell through a large hole in a residential home that was under construction. At deposition, the Defendant testified that he repeatedly warned my client about the open hole. He testified to standing next to the hole with my client for 5-10 minutes before my client fell; pointing to the hole; and discussing his work on the hole with my client. He testified that the hole was large, open, and apparent and that my client was at fault for falling through it.
My client testified at deposition that he never knew the hole was present until he fell through it. He further testified that he had never been to the construction site before the night of the incident and that the site was dimly lit and shadowy when he arrived.
The core truth that emerged through discovery is that this case was about a lie. The testimony from my client and the Defendant was diametrically opposed. If the jury concluded that the Defendant discussed the hole with my client and stood around the hole with my client for 5-10 minutes, then we would lose. On the other hand, if they believed my client, we had a path to victory.
It is critical to present a core truth to the jury in a clear and direct manner. Do not obfuscate or equivocate with respect to your core truth. In this case, I told the jury during my opening statement that one party was lying and one party was telling the truth and that it was their job to figure it out. With this foundation, the jury knew exactly what to look for during the trial. The trial became focused on the lie, and the jury assumed their role as chief detective. Ultimately, the jury found the Defendant negligent; however, the jury still reduced its overall award based on my client’s comparative fault. Without the core truth in this case, overcoming liability and comparative fault likely would have been insurmountable.
In a medical malpractice case, I tried in Aroostook County in November 2019, core truths counteracted the hospital’s affirmative defense of comparative fault. In that case, my client injured her right shin when a piece of wooden debris struck her while taking apart an old bookcase. She developed a large hematoma—a collection of blood beneath the skin. My client was concerned about the hematoma, because she took a blood thinning medication for an unrelated medical condition, and she feared that she had broken a bone.
At the hospital, the physician assistant ordered an x-ray that confirmed no fracture and drew blood that confirmed her blood was therapeutically thin. He ordered the administration of an intramuscular narcotic pain medication and discharged her home less than two hours after her arrival with instructions to return if her condition changed or worsened.
My client returned home and went to bed. When she awoke the next day, the hematoma had clearly grown, but she assumed it was not serious. Later that afternoon, my client’s hematoma exploded through the front of the necrotic skin that had formed on her shin. She was brought back to the hospital less than twenty-four hours after her discharge with an open and bleeding wound. In total, she underwent three surgeries, including a skin graft, and a blood transfusion.
The hospital argued that my client was comparatively at fault for her injuries, because she failed to follow discharge instructions that warned her to return to the emergency department if her condition changed or worsened. The hospital argued that there was no dispute that her condition changed and worsened during the period after her discharge and that, therefore, my client was responsible for her own injuries. This argument had the potential to cultivate negative attribution among jurors, i.e. “I never would have waited to return to the emergency department;” “I would have been more careful;” “I would have known that my condition was getting worse.”
One of the core truths that we developed in discovery through expert witness testimony is that a hospital emergency department must not send a patient home until the patient’s condition is stable, because doing so risks serious harm or death to the patient. This core truth shifted the focus away from my client’s conduct at home and to the hospital’s actions when she was at their facility. The evidence demonstrated that the hospital failed to provide any treatment to ensure the stability of my client’s hematoma: no measurements of the hematoma; no application of ice; no application of compression dressings; and no surgical consult. Instead, the hospital administered narcotic pain medication and sent her home to manage her potentially serious hematoma.
The core truth that the emergency department failed to stabilize my client’s medical issue was able to resonate with jurors on a level beyond the facts of this particular case. This core truth applies to a person who goes to the emergency department with chest pain that is concerning for a heart attack or a child or elderly person with a worsening infection and vital signs. In both instances, an emergency department cannot send a patient home without first ensuring that the patient is stable.
This liability core truth along with core truths related to damages allowed us to obtain a favorable verdict. Moreover, the jury did not find any comparative fault.
Identifying core truths involves spending time with your clients at their homes, listening carefully to all aspects of their story, and working closely with experts. Core truths enhance the power of the case by transforming potential weaknesses (i.e. arguments the Plaintiff or Defendant will emphasize) into strengths. To be effective, cultivate core truths early and throughout discovery.
 Maine v. Michaud, 2017 ME 170, ¶ 9, 168 A.3d 802.
 Id. ¶¶ 2, 9.
 Id. ¶ 9 (citations omitted).
 See also, 137 F.R.D. 369 (D. Md. 1997) (applying holding of Old Chief in context of civil trial).
 State v. Lovely, 451 A.2d 900, 902 (Me. 1982) (quoting United States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979); see also State v. Nigro, 2011 ME 81, ¶ 15, 24 A.3d 1283 (“[V]oir dire questioning must be sufficient to disclose facts that would expose juror bias.”); State v. Lowry, 2003 ME 38, ¶ 11, 819 A.2d 331 (“Questioning during voir dire must be sufficient to disclose facts that would reveal juror bias.”).
 Lowry, 2003 ME 38, ¶ 8, 819 A.2d 331 (citations and quotations omitted); see State v. Holland, 2009 ME 72, ¶ 54, 976 A.2d 227 (“[A] juror’s claim of an ability to remain impartial is not always adequate and is but one consideration.”).
 See 14 M.R.S. §§ 1204, 1301.
 See Id. § 1301.