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To select a jury, trial lawyers make ad hoc decisions about dozens of people. The decisions are, at best, often informed guesswork. Yet many believe that the outcome of a trial can be dictated by the composition of the jury and that crucial moments of the trial take place even before opening statements. For this reason, experienced trial lawyers approach jury selection with a framework in mind of the type of people to avoid as jurors as well as those who are preferable for the case. In an insurance fraud trial, special attention should be given to the selection of jurors who will become the trial audience. After all, the insured and the insurer intend to present very different cases.

Needless to say, a receptive audience is the goal of jury selection. An insured who sues his insurer has a straightforward case to present. A premium was paid, a policy was issued, a loss happened, the claim was presented, and the insurer refused to honor its commitment. Although there may be some window dressing to spur the jurors to believe that this claim is like so many other instances of an insurer seeking to escape its obligations, the plaintiff is presenting a breach of contract claim where the terms of the contract are not at issue and the claimed breach is obvious.

On the other hand, the insurer will be asking the jury to find that the plaintiff is a liar, and to do so after offering a case that is largely based upon circumstantial evidence. Whether the loss involves a fire set by arson, water damage to electrical goods, or some more inventive method of loss, there almost certainly will not be any eyewitnesses to testify that the insured was observed lighting a match, breaking a pipe, or otherwise causing a loss. Rather, the circumstances involving the loss will be painted through various witnesses as being suspicious and being under the sole control of the insured. In addition, if the amount of the claim itself is being challenged (as it usually is in a fraud litigation), the defense will likely produce witnesses to testify about the fair value of the goods in contradiction to the insured's claim.

In short, the insured's claim that a policy was issued and not honored is not disputed. For this reason, trial judges sometimes require the insurer to present its defense first and to allow the jury to rule on whether the claim is fraudulent because if it is not, coverage is often conceded. No matter how the trial is structured, however, its outcome often comes down to one issue and very few crucial witnesses. The issue is, of course, credibility and the crucial witnesses are the insured's principal(s) and those who have calculated the loss. The attorney for the insurer knows well that if the insured's principal leaves the witness stand with his or her credibility intact, the case cannot be won. Thus, there will be a direct character attack and, depending on the examining lawyer's style, it can be hostile, sarcastic, or understated, but it cannot be flattering. Some people may find the cross-examination entertaining, but others may be offended. In addition, for the insurer to prevail the jurors need to be outraged by the attempted fraud and the audacity of the effort. Among the pool of jurors, there are those who can easily be provoked into moral outrage and others who may be sympathetic to even the most blatant scam. The task of the trial lawyer in jury selection, working from the limited information provided during the jury selection process, is to determine into which camp prospective jurors fall.

Jury selection procedures vary from jurisdiction to jurisdiction. For example, in New York State trial courts, jury selection is usually accomplished in small rooms annexed to the courtroom without a judge being present (but available for rulings). An honor code as to what can or cannot be said to the prospective jurors is followed and a time limit is sometimes imposed on the selection process. In other states, jury selection takes place in the courtroom with the trial judge presiding but the attorneys are given the opportunity to speak directly to the jurors after opening remarks by the judge. A third procedure, widely employed in the federal courts, is for the judge to conduct very general questioning of the potential jurors with little, if any, opportunity for questioning by attorneys. Needless to say, the more information an attorney can obtain about an individual the better the evaluation of the juror. Here then, are broad categories to use in evaluating people as jurors for an insurance fraud trial.

CHARACTERISTICS AND ANALYSIS

1. Employment. A person's work can tell a lawyer a great deal about how that person will view the case. For example, is the person employed in an industry notorious for unreported income? Many people who have a cash income may not be troubled by an insured's explanation that the value of his lost inventory exceeds the amount stated on a tax return because the inventory is minimized for tax purposes. On the other hand, an employee who receives a W2 form and files a straightforward tax return will not be sympathetic to any suggestion of financial game-playing. Others who work in a field dependent on trust or subject to intense regulatory scrutiny may also be easily outraged by an insured's admission that the insured knowingly signs a false financial statement.

2. Entrepreneurship. Is the prospective juror a person who has taken financial risks, operates a business, or in some way pursues speculative opportunities? If so, that juror might root for a small business owner seeking a large recovery from an insurer. Such a person also might be sympathetic to claims that bookkeeping errors can be ascribed to sloppiness without any pecuniary motive.

3. Prior Jury Service. Nowadays it seems that most jurors have served on a jury before. Depending on the jurisdiction a lawyer may learn a little bit about the prior case, e.g., civil or criminal, and whether the jury found for or against the defendant. This little bit of information is not especially insightful but it is generally helpful to know about the earlier jury experience. In a fraud case, the defense lawyer is asking the jury to find that the insured's principal has taken the witness stand, sworn to tell the truth, and then proceeded to lie at length, in detail, and with apparent sincerity. Has the individual's prior jury experience left a potential juror so jaded that anything short of a scathing cross-examination leading to a confession on the stand would be insufficient? 4. Personality. How will the potential juror react to the cross-examination, regardless of the style of its presentation, and the suggestion that the witness is intentionally violating the oath? Will the cross-examination be made before a cynical group receptive to the suggestion that the claim cannot be true? Is the juror from a sheltered background who might find a confrontational approach rude and offensive? If so, this juror can easily sympathize with the insured who is being picked on by a lawyer. There are some who, perhaps because of religious belief, simply will not accept the proposition that a person will intentionally lie under oath. If this person is on the jury, not even the most effective cross-examination will succeed.

5. Prior Experience With An Insurer. This is almost too obvious to mention. Disgruntled insurance customers are excellent jurors for the insured and to be avoided at all costs by the insurer.

No checklist can ever be complete -- especially when the subject is evaluating people. The point is, however, that an insurance fraud trial, like any trial, is the culmination of much work and expenditure of resources. At the very least, litigants need an audience that will be receptive to their respective messages. When the jury is composed of people who are not likely to listen, a lot of otherwise good lawyering will be wasted.

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