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Jewish World ReviewDec. 29, 2003 /4 Teves 5764

Dave Shiflett

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Judge Not, All Ye Faithful: The beatitude excuse -- Religious folk looking for a way to get out of jury duty may have been handed one by an unlikely ally in civic sloth: trial lawyers. According to a new guidebook for the plaintiff's bar, trial lawyers are advised to be wary of potential jurors with "extreme attitudes about personal responsibility." These jurors, the guidebook counsels, often reveal themselves by chatting up "traditional family values" — values that reflect "strong religious beliefs." If you want to get off the hook, chant a beatitude or two. That may well do the trick.

The scoop comes from journalist Jeff Johnson, who reports that legendary attorney David Wenner penned the warning for Litigating Tort Cases — known by some as the Shakedown Artist's Bible.

"It is helpful to divide the jurors into two groups: the personal responsibility group and compassion-altruistic group," Wenner writes in the guidebook. "Jurors who are extreme on the personal responsibility bias, or who have a high need for personal responsibility, will strongly favor the defendant. In contrast, jurors who are extreme on the compassionate-altruistic bias, or who have a high need for compassion, will strongly favor the plaintiff."

No one should underestimate the dismay "personal responsibility" strikes in the heart of some trial lawyers. The plaintiff's bar works long and hard to ensure clients are not held responsible for their own injuries. In some states, for example, seat-belt information — did the plaintiff fail to buckle his seatbelt, which might that have prevented him from sailing through the windshield? — is difficult, if not impossible, to admit as evidence. When someone pours hot coffee in her own lap, the temperature of the coffee becomes the issue.

Wenner, of course, is entirely correct. Jurors who believe in personal responsibility can destroy the best-laid plans of an attorney on the make. They do believe, as Wenner warns, that human beings "should be self-reliant, responsible, and self-disciplined. When people act irresponsibly and are not self-disciplined, there are consequences." They also believe that individuals "must be accountable for their conduct. The motto of these jurors is that if a person is committed to personal responsibility, then he or she must first accept blame before blaming others. That means playing the blame game is unacceptable if the plaintiff was in the best position to avoid the injury."

Spotting the undesirables is no big problem: "The personal responsibility jurors tend to espouse traditional family values," the guidebook explains. "Personal responsibility jurors often believe that when someone harms you, the best response is to turn the other cheek. A lawsuit is viewed as revenge and unproductive ... often, these jurors have strong religious beliefs." To no surprise, Wenner assured Johnson that he is in no way suggesting a religious litmus test. "That's exactly the opposite of what I was suggesting. In fact, my mother would be really upset that she spent all that money on bar mitzvah lessons for me if that's what I had meant." Instead, he excludes religious jurors for their own good. "You are now asking that person to make a choice between their religious beliefs and the laws that exist in your specific state. Why should they have to be put in that position?"

This is intolerance posing as compassion. It is also a reminder of the steady marginalizing of religious belief and believers, be they candidates for judicial nomination or, apparently, ordinary jurors. Potential justices are excluded over fears they will not support abortion rights or will consider various "lifestyle" questions through a religious filter. For jurors, the offending belief is that humans should be held responsible for their actions and not attempt to shift blame to innocent parties in the pursuit of a fat jury award.

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But was the e-mail mResponsibility and accountability, historically speaking, have been considered desirable qualities. The lack of either has been considered a grave flaw. Sticking one's hand in the fire correctly results in a burn: It should not result in suing the oven maker, plus the person who installed the oven, the person who drove the delivery truck, the appliance maker, and the gas company. The person who attempted such a suit would be considered a lout, and any juror who responded positively to such a suit would reasonably be considered a partner in crime.

In Wenner's world, however, jurors who shift blame are "compassionate" and "altruistic" — far superior to those who hold someone personally responsible for his actions. It's yet another reminder that some lawyers are much more an offense to justice than common criminals.

One assumes Wenner's warning will be very much taken to heart, and that it likely reflects an already deeply ingrained bias. We must make the best of things, of course: If dodging jury duty is your mission, try showing up at court and greeting plaintiff's counsel with a cheery "may the Good Lord bless and keep you, you miserable shyster."

JWR contributor Dave Shiflett writes from central Va. Comment by clicking here.


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© 2003, Dave Shiflett