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Polling Jurors on Tort Reform

The trial in Ernst v. Merck got underway a few days ago, and prospective jurors are now being reviewed to ensure they are free from bias. (Overlawyered; Kirkendall) Or so one would hope.

It seems, though, that many of the questions on the voir dire questionnaire are gauged to poll jurors on their political views and, in particular, their attitudes towards toward reform.

According to the Houston Chronicle:

The 120 members of the jury pool sat in Brazoria County's largest courtroom and filled out a 21-page questionnaire telling lawyers, among other things, how much they agreed with statements such as "Corporate executives may lie under oath to protect the company's profits and to increase their personal salaries and bonuses," and "Corporations should be held to the same standards of conduct as an individual as far as ethics are concerned."

They were also asked if they think "jury verdicts are too high, too low or just about right," if "our system of lawsuits needs to be changed" or if they "agree with the use of punitive damages to punish a corporation for outrageous conduct."
* * *
The questionnaire asked would-be jurors what books they read, movies and television shows they watch, what newspapers and magazines they read and if they had ever heard of Vioxx or Merck.
It asked which of 31 different personal traits they think apply to them, ranging from analytical to suspicious, pretty to overweight, compassionate to controlling.
It also asked their religious, educational and political backgrounds, their occupations and those of people close to them.

Perhaps I'm being naive, but questions like these lead one to wonder how attorneys will use the answers provided. Presumably, plaintiffs' attorneys would try to strike jurors whose answers suggested an inclination toward litigation reform.

If parties are able to strike jurors, not for actual bias but for incliations and political views, is the jury really representative of the people?

Or, to put it another way, how outrageous would it be if the questionnaire asked these questions:

"In a lawsuit involving a manufacturer's liability for a drug it sold, should the plaintiff have to prove that the drug was the cause of the plaintiff's injury?"

"Do you believe it is fair for individuals to sue corporations just because corporations have money?"

"Do you believe that individuals who file lawsuits somtimes lie in order to increase their likelihood of recovering money?"



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.