An Interview with Jay W. Dankner, Esq. and Marcelo A. Buitrago, Esq.
On October 28, 2014 an article in The New York Daily News reported that Joan River’s daughter Melissa Rivers had set in motion the filing of a wrongful death lawsuit by engaging a top New York medical malpractice law firm to begin the process of gathering all of the facts surrounding the death of her famous mother. Those familiar with the situation anticipate Ms. Rivers intends to file a lawsuit against the Manhattan clinic and the doctors who were treating her mother for a vocal problem when the trailblazing comedienne went into cardiac arrest, then a coma, and died shortly thereafter.
If a lawsuit is filed and a trial ensues, lawyers for the plaintiff (Ms. Rivers), and lawyers for the defense, will need to pick six New Yorkers for the jury who they believe will be able to be impartial and arrive at a decision based only on the evidence presented in the case.
But in this particular instance, the jury selection process poses unique challenges for both sides given the high profile nature of the plaintiff’s world famous mother. Throughout her long and controversial career, the legendary funnywoman was known for her bitingly sharp wit that, at times, put some people off. Within minutes after news of her passing began to surface, some critics on social media let loose with a blizzard of anti-Rivers venom postulating that her death was payback for her insult-laden comedic style.
Research has indicated potential jurors differ in how they view evidence based on their beliefs, values, experiences and attitudes towards the litigants, which would be a criterion of particular relevance when selecting jurors should this case go to trial.
The following interview was conducted recently with Jay W. Dankner, Esq. and Marcelo A. Buitrago, Esq., colleagues in the top New York medical malpractice law firm of Dankner Milstein, P.C. Mr. Dankner is managing partner of the firm. The two veteran trial attorneys talk about the critical nature of jury selection in civil cases in general, and in ones involving a celebrity like Ms. Rivers. (The answers are an amalgamation of their responses to the questions).
Q: Why is jury selection so important in civil cases?
A: A case can be won or lost during jury selection. It is the lawyer’s first opportunity to develop a rapport with the panel and get a read on each of their opinions, biases and beliefs. The attorney can then assess whether any given person will be a good juror for that particular case.
Q: Can you give me some idea of the types of things you look for in a panelist before selecting him/her for the jury?
A: You want someone who can be open minded, fair and objective. However, what you seek varies depending on the facts of your case and your client. If you have the law and the statutes on your side, you want a certain type of personality. If you have a case where the standards are not clearly defined, you may want another type of person as a juror.
Q: In Rivers’ case, for example, should questions about a panelist’s predisposition toward Rivers come up during Voir Dire? If so, what might you want to know about a panelist’s feelings/attitudes towards Ms. Rivers and/or her daughter?
A: I would rather not comment too much on an ongoing case. However, in essence, you would discuss a prospective juror’s pre-conceived opinions of Joan Rivers, her family, their lifestyle, their financial wealth, etc; and whether they could be fair given their feelings on those issues.
Q: If this was just any other medical malpractice case, what kinds of questions might you ask a panelist in order to determine their appropriateness for the jury? For example, how would his or her attitudes towards and experiences with doctors, or hospitals, or clinics, etc., affect your decision?
A: Every jury selection should be tailored to the particular case. However, in medical malpractice matters, you want to know about the juror’s, or his or her family member’s, good or bad experiences with doctors, nurses or hospitals. We never seek to make the doctor a villain, since many jurors have positive opinions of doctors. We simply explore the potential juror’s openness to the possibility of a doctor or hospital or some other healthcare provider deviating from the accepted standard of care in this particular case, even though they may be beyond reproach in their treatment of other patients.
Doctors never intentionally harm their patients. That’s why it is important to explain to the panel the difference between a criminal case, where intent is a pre-requisite, from a malpractice or negligence case, where the burden of proof and legal responsibility is much lower and intent has nothing to do with it. It is simply deviating from the accepted standard of care, despite all good intentions.
Q: Does your client play any role at all in the jury selection process?
A: The plaintiff has the right to be present during jury selection. But this is almost never done in civil cases. Our main concern is to make sure the prospective juror is the type of person who can relate to our client, follow the law as it is explained to them by the judge, understand the theory being presented, and evaluate the evidence fairly and impartially.
Q: Most people find being in a courtroom intimidating. What do you do to try to relax a panelist and get him or her to open up to you and answer your questions honestly?
A: Make them laugh. Let them know that although this is serious business, a little humor to break the tension is OK and sometimes even warranted.
Q: What role does a lawyer’s “Sixth Sense” play in the selection of a juror? And how would you describe/characterize that “Sixth Sense”?
A: Go with your gut. At times you may think a juror looks perfect “on paper.” But your intuition tells you he or she will not support your theory of the case. An experienced trial attorney will always follow his or her gut feeling.
Q: What are the top personality traits you require of a panelist before selecting him or her for your jury?
A: We look for open-minded people with an ability to be fair. Someone who we think will listen to all the evidence and follow the judge’s instructions even if they disagree with the law. We look for leaders and followers. We consider their background, their hobbies, their political beliefs and even what they may watch on TV. We also look for jurors who we believe have the ability to award substantial compensation to our client if the evidence warrants it, despite the onslaught of arguments and advertising campaigns they’ve heard from insurance companies and politicians ranting about tort reform.
Q: On a scale of 1 to 10, ten being absolutely, positively critical to the success of a case, and 1 being of no consequence whatsoever, how would you rate the importance of jury selection in the cases you try?
A: We would both rate it a 10.