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May 16, 2004

ATLA: Avoid jurors with "strong religious beliefs" reports that an American Trial Lawyers Association publication, "ATLA's Litigating Tort Cases," an $800 manual advertised as "the inside track to establishing and maintaining a successful tort practice," recommends quizzing jurors on their religious beliefs during the "voir dire" procedure meant to exclude biased jurors.

The chapter classifies certain individuals as "personal responsibility" jurors. "The personal responsibility jurors tend to espouse traditional family values." Often, "these jurors have strong religious beliefs." Because "personal responsibility jurors" hold values such as "People should be self-reliant, responsible, and self-disciplined. When people act irresponsibly and are not self-disciplined, there are consequences. People must be accountable for their conduct," they may not be sufficiently sympathetic to the plaintiffs.

Thus, "the only solution is to identify these jurors during voir dire and exclude them from the jury."

A spokesman for Americans United for Separation of Church and State objects: "'Certainly a good lawyer will try to ferret out any evidence of prejudice, whether it's religious prejudice or racial prejudice, prejudice against women, whatever, that's legitimate,' [Rob] Boston said. 'But, for a lawyer to simply assume that certain religious beliefs will dictate certain behaviors is naive and I think it does a disservice to our legal system.'" (Jeff Johnson, "Trial Lawyers Question Jurors' 'Strong Religious Beliefs'",, Dec. 18).

Alas, the article uncomfortably and unnecessarily singles out the Judaism of the author of the book chapter in question. But the identification of trial lawyers' strategy in such bald terms provides interesting insight.

Plaintiffs' lawyers are fond of accusing tort reformers of attempting to remove certain decisions from "the people". But under the current tort system, jurors in many cases are not so much "the people" as a hand-picked group selected to favor a certain result. When one combines this biased sampling with random variation, and then combine that with the possibility of jackpot damages awards, it takes only a small minority of "the people" to create a jury pool that creates dramatic shifts in wealth to lawyers from the rest of society.

[cross-posted from Overlawyered, where it ran Dec. 19, 2003]

Posted by Ted Frank at 09:59 PM | TrackBack (0)




Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.