• October 1, 2014

Wizards v/s Heat 03/30/11“If the evidence were to show that the plaintiff injured himself because of his own stupidity, would you be able to find it within yourself to award him no money even if you find he was badly injured, again, by his own stupidity?” OUT OF BOUNDS!

“If the evidence showed that defendants claim they will lose hundreds of millions of dollars if they are forced to make a reasonably safe product, could you put aside consideration of this hit to their fabulous wealth, and decide whether, completely ignoring this, they should be responsible for callous disregard for the plaintiff’s personal safety?” OUT OF BOUNDS! 

Easy calls. No need for video replay. But what calls would you make if you were referee U.S. District Court Judge Patrick J. Schiltz (D. Minn.) on the voir dire questions for potential jurors proposed by defense counsel in the Thull v. Techtronic “table saw” case described in yesterday’s post?

Lawyers are clever and subtle. Most know what is clearly out of bounds and what is clearly inside the line. And they also know that the line is not a dichotomous absolute gulf like the one between “A” and “B” (no such thing as “slightly more A than B”). It is the infinite and unfathomable continuum between “red”and “orange.”

And, here, again, is an illustration of the art of advocacy and the immovable uncertainty of civil litigation. What will Judge Schiltz allow? What will he bar? How will all of the lawyers’ subtle “nudges” latent in the lawyers’ proposed voir dire that Judge Schiltz does allow affect the jurors individually? As a group? What weight will any of these nudges have in the overall quantum of data that the jury will have to process?

None of these questions are knowable or predictable. The complexity of evidentiary issues and of human decision-making make almost all trials jump balls.

[Editor’s note: And it is not just the subtle communication of voir dire, of course, that invisibly tips (or maybe not?) the decision-making. A trial lawyer tells me of a trial court judge’s brief light-hearted exchange with a witness at the close of his testimony. Innocent and harmless, right? But the case centered on that wintess’ credibility. Did the judge’s relaxed banter with a central witness subtly signal the judge’s preference for witness over his adversary to the jury? The only thing we know for sure is that the jury ultimately found in that witness’ favor. We will never know why with anything near certainty.]

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