Many factors during a civil or criminal trial impact its outcome. The attorney’s preparation is key to either prosecuting a civil case such as personal injury or building a solid defense in a criminal matter. This involves thoroughly investigating the facts, finding and interviewing witnesses, analyzing forensic evidence, obtaining relevant documents, and, if necessary, retaining expert witnesses.
Jury selection is one of the most critical factors in both types of cases. If your lawyer is unfocused, negligent, or fails to question potential jurors properly, it could lead to an unfavorable verdict, regardless of how prepared and optimistic your attorney was about the case. Jurors have biases, prejudices, and perceptions just like everyone else. Attorneys need to explore these preconceptions and biases to find jurors who can set them aside and base their verdict solely on the evidence and facts presented. Failing to do so could be considered legal malpractice by an attorney.
Elements of Legal Malpractice
To prove a case of legal malpractice, there are certain elements a plaintiff needs to prove by a preponderance of the evidence:
- The attorney owed a duty of care to the plaintiff, i.e., an attorney-client relationship existed
- The attorney breached his duty of care
- The breach of the duty of care proximately caused damages to the plaintiff, and
- Actual Damages can be demonstrated
The standard of care expected of an attorney is the level of care that any reasonable and prudent attorney practicing in that community would possess or exercise. An attorney who acts in their best interests to the detriment of their client can be guilty of legal malpractice or breach of fiduciary duty. Moreover, an attorney who fails to use the expected skills and knowledge in the litigation process, or neglects to do so, may be held liable for not meeting the standard of care expected of them. Therefore, if your attorney’s handling of jury selection fell below the standard of skill and knowledge expected of a reasonably prudent attorney, then malpractice may have been the reason for your unfavorable outcome.
What is Jury Selection?
The process of selecting a jury is called voir dire, during which the attorneys for the parties have an opportunity to question potential jurors to identify any bias or prejudice against their client. Attorneys usually seek jurors who fit a specific profile or demographic that would be more sympathetic to their client’s defense or claim. For example, in a personal injury claim, the plaintiff’s attorney usually seeks to exclude individuals who were defendants in similar cases and who would resent or be skeptical of anyone claiming compensation for alleged injuries. This could include conservative business people or those skeptical of personal injury claims in general. On the other hand, more educated or sophisticated people might be more prone to basing their verdict solely on the evidence presented and not be too concerned about advocating for a large verdict if the evidence justifies it.
In civil and criminal trials, attorneys are given a limited number of preemptory challenges to dismiss potential jurors without having to provide a reason. However, they have an unlimited number of challenges that can be used to dismiss individuals who express doubts about their ability to be neutral or who show bias against the parties involved or against a witness scheduled to testify for either side.
While not every attorney can select a perfect jury, legal standards require them to use their professional judgment to exclude unwanted or biased jurors and accept those who can be fair and objective in assessing evidence. An attorney who fails to exercise the necessary skill and competence in jury selection may be held liable for legal malpractice.
However, an unsatisfactory trial outcome does not necessarily indicate that the attorney’s alleged negligence in jury selection was the cause. Each case must be carefully examined to determine if a more favorable outcome was warranted and to scrutinize the attorney’s conduct in selecting jurors that may be the reason for the adverse outcome.
Retain a Legal Malpractice Attorney from Burns and Jain
If you believe that your attorney’s jury selection significantly affected the trial’s outcome, contact a legal malpractice attorney at Burns and Jain at (617) 227-7423. Although very difficult to prove, we will listen to your concerns and evaluate whether you have a viable legal malpractice case.