BP explosion trial: the uses of voir dire

by Walter Olson on September 17, 2007

It has long been noted that lawyers can (when judges let them) employ the process of jury selection to plant themes, factoids and manipulative images favorable to their cause before a trial even gets under way. Which brings us to the just-begun Galveston trial of lawsuits against BP over a deadly 2005 explosion at its Texas City, Tex. refinery:

As Brent Coon, an attorney representing four of the five workers whose lawsuits are set to be tried, talked to potential jurors, he displayed a picture of Enron’s logo on two large screens behind him.

Jim Galbraith, one of BP’s attorneys, objected to the oil company being compared to what happened at Enron, which went bankrupt in 2001. Galbraith accused Coon of arguing his case before the trial had begun.

“We are not trying to say BP is Enron. But Enron did have a major case with a lot of publicity and did a lot of things wrong,” Coon said before state District Judge Susan Criss ordered the Enron logo off the screens. …

Galbraith later objected when Coon showed the jury pool of more than 200 people a well-known photograph of major tobacco company CEOs raising their hands in 1994 just before they testified to Congress that nicotine wasn’t addictive when internal documents showed the companies knew the opposite was true.

“He’s still arguing his case,” Galbraith said.

Criss later told Coon he couldn’t show any more of these images. …

Just to confirm for those who may be wondering, BP, long known as British Petroleum, is not a tobacco company and has no particular connection to Enron other than being in the energy business. Maybe BP should have used its side of juror selection to flash large images of scandal-plagued or widely disliked Texas plaintiff’s attorneys who are not Brent Coon. (Juan A. Lozano, “BP Objects to Enron Comparisons”, AP/Forbes.com, Aug. 31).

{ 5 comments }

1 Anonymous Attorney 09.17.07 at 10:06 am

The proprietors of this site, and non-lawyer observer-readers, may be interested to know “from the trenches” that a popular voir dire question these days from plaintiff’s attorneys goes as follows:

“Now, how many of you have heard of this whole ‘frivolous lawsuits’ thing?”

Anyone who raises their hand is kicked out of the pool. Anyone who agrees that “there are too many lawsuits” is sent packing. Etc. It’s a pretty effective and efficient way of weeding out skeptical jurors or defense-oriented jurors. Sometimes a plaintiff’s lawyer might “draw the sting” as we say in trial practice, nodding that yes, there are some nutty lawsuits – but not mine, hoo boy. “Do you believe that when a person is seriously injured – their life ruined – by the negligence of another, that they are entitled to just and fair compensation?”

Who can answer no?

2 kat 09.17.07 at 12:09 pm

I don’t understand why the judge allowed things to be shown to the jury during voir dire at all without a prior consultation and agreement between counsel.

3 Coondog 09.17.07 at 1:06 pm

The defense might have displayed Brent Coon’s MySpace page behind them as a counterweight.

http://profile.myspace.com/index.cfm?fuseaction=user.viewprofile&friendid=33991335

No, that’s not embarrassing at all. At Age 47.

Would you call that a Pamela Anderson obsession?

4 MF 09.18.07 at 8:18 pm

IANAL or a judge or in any way in the legal field, but if I were judge, I would have stopped the display of the image immediately and warned counsel that if he tried a similar stunt, he would immediately be held in contempt of court.

As for the “how many have heard of frivolous lawsuits” question, as a plaintiffs lawyer I would have objected, and as a judge I would sustain and not allow the dismissal of any jurist who responded to the question. Merely being familiar with the concept does not in any way prove a potential jurist is incapable of deciding fairly. If the defense lawyer wants to use one of his peremptory challenges, that’s his choice. But the jurist would not be dismissed for cause.

OK, I may have the terms wrong and I might not even have a legal leg to stand on, but boy, guys like the hypothetical defense lawyer in reply #1 sure do earn their “scum of the earth” nickname.

5 MF 09.19.07 at 12:56 pm

Oops, my second paragraph should have been ‘defense’ lawyer, not ‘plaintiffs’. I think you got the idea, though…

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