What to Look for During Voir Dire in Nursing Home Cases
How can attorneys build a strong jury from the very beginning of a nursing home case? Voir dire is a critical part of trial preparation and can influence how a jury understands the facts of a case. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes Mike Bonamarte to discuss voir dire in nursing home cases and strategies attorneys should consider during jury selection.
Intro
Schenk:
Jury selection in a nursing home case is not just about finding out who likes you. It’s about finding out who already believes the nursing home must have done its best, or that an elderly resident’s injuries just come with age. I’m attorney Rob Schenk. This is the Justice for Residents podcast, and this week I’m joined with trial lawyer Michael Bonamarte to talk about voir dire nursing home cases, how to uncover bias against the elderly, and why sometimes the best way to talk about bias is through the fight over Chicago deep dish or thin crust.
Stick around.
I have to say, Gene, that Gene is the producer of the show. Gene, the, th- that jingle I think has been my favorite so far, and this whole, in the new season of where we have a new jingle every episode, I think that this one was my favorite one. And what is this one called? This one’s called, this was Soul.
That jingle was the soul version of our normal Justice for Residents podcast jingle. Love that. Excellent episode today, folks. If you would like some homework for, before listening to this episode, I recommend going back and checking out episode 203, where I talk with Xavier Carter about considerations in making closing arguments.
I think that when you deal with case summation and closing arguments, you’re also dealing with some of the key things that maybe you talked about during voir dire, so I think that’s relevant. The other episode that I think you should listen to is the on case themes themselves that I’ve had with, I sat down and talked with trial lawyer Joe Musso career nursing home litigator Joe Musso, about case themes.
Guest Intro
Schenk:
And as this goes to air, I don’t think I have an episode number for that yet. So just look for Joe Musso, case themes, that’s your homework for this week. And now, without further ado, the meat and potatoes of this episode on voir dire. Michael Bonamarte, IV, is a trial lawyer and managing partner at Levin & Perconti.
Follow Mike Bonamarte on Instagram for professional updates and insights related to trial advocacy.
He represents victims in birth injury, medical malpractice, nursing home abuse, wrongful death, and catastrophic injury cases. Michael is also a nationally recognized nursing home litigator and the former president of AHJ’s Nursing Home Litigation Group, and we are so happy to be talking to him today.
Connect with Michael Bonamarte on Facebook for additional updates on his legal work.
What’s Your Overall Objective in Voir Dire?
Schenk:
Michael, I feel like there are some attorneys that are gonna say that voir dire is a process by which they want to get rid of people, and some people might say that voir dire is a process by which you find people, right? So what is your objective? What are some of the primary things that you’re trying to do during voir dire in a long-term care case?
Bonamarte:
Sure. So I think the, the honest answer to the question is probably it’s a combination of both of those things, maybe leaned a little bit more towards finding people that are predisposed or against your case, or have biases that may cause them to lean towards the defendant, more towards the plaintiff.
And I think by making that the objective in voir dire, you should be able to have some success to find people that at least are going to be fair and don’t start out with one side ahead of the other. For me in particular, I practice primarily in Illinois. I think it’s crucially important from, for both sides really to understand the law in your state.
I know there’s certain jurisdictions where there may be some magic words, like if one side has a strike against them. I don’t have that in Illinois, so I’ve settled on does the other side start out a little bit ahead? And so really, the first thing that I do is try to introduce the topic of bias in sort of a lighthearted way.
And I think it’s been effective not just in long-term care cases, but generally in all types of cases. I have a, a significant practice, a birth injury practice as well as medical malpractice. And I think the approach that I’ve started to take, especially in recent years, and have really honed in on, has been effective in introducing bias and getting people to talk about it.
‘Cause I think frankly, that in and of itself, getting people to talk and open up, is probably the hardest thing, ’cause it’s a little unnatural, the process. It’s not like having a conversation like you and I are having where there’s back and forth, and you ask questions, and I provide some information.
People are shy, and I think there’s a certain art to getting them to open up a little bit.
Attorneys preparing for jury selection can learn more on the impact of effective juror questionnaires and attorney voir dire when identifying potential bias and evaluating prospective jurors.
What Types of Bias Are You Trying to Reveal?
Schenk:
When you say bias, Michael, what are some of the biases that you are trying to reveal in a potential juror?
Bonamarte:
So I think the big ones are biases against civil lawsuits generally, and I think that applies across the board, whether you’re trying a nursing home case or a med mal case or any type of case.
Biases against money damages or big money damages, depending on the, how you perceive the value of your case or what you perceive the value of your case to be. Because, you may find people that are okay generally with the process, but then they hear you’re gonna be asking for tens of millions of dollars or millions of dollars, and they say, “Whoa, whoa, whoa , that’s a little bit too much for me.”
And, you’re exposing people that probably see things on the news, have heard from friends, relatives about lawsuits getting out of control those types of biases. And I think those are probably the two most important ones that I’m trying to expose in any case.
Trial lawyers can explore practical techniques on advanced voir dire and jury selection strategies to better understand juror attitudes and experiences.
Why Should You Ask Jurors About Their Experiences With Nursing Homes?
Schenk:
So Michael, in a typical long-term care trial how far into the facts of your case are you getting with respect to voir dire questions?
Bonamarte:
So I think it depends on the injuries at issue. And I may not ask directly if you had a loved one that’s been harmed in a nursing home, but I may ask a more general question designed to elicit both positive and negative experiences. So who here, for for example, who here’s had some experience, either themselves or a family member, a loved one, close friend who’s been in a nursing home?
You have, Mr. Shenk. Tell me a little bit about that. And they’ll talk a little bit about that, and then I’ll ask some follow-ups. Tell me more. How might that impact your ability to be a juror in this type of case? and I may not say the facts of the case specifically, but I may ask some more pointed questions.
Who here has had a loved one, They have a close family member, friend who’s suffered from bedsores or pressure ulcers or decubitus ulcers are the way the, the different names that they’re called, and then follow up on that. Falls, that kind of stuff. Falls is an interesting one because, a lot of people view a fall as an accident as opposed to an act of negligence.
So I think in a fall case it’s important to probe a little bit on that topic. So yeah, I definitely ask about experiences with nursing homes because, while there are a lot of people that I talk to, lawyers, non-lawyers especially, that may have a negative perception of a nursing home, you wanna be careful because there may be people in the, on the panel that have had particularly positive experiences, and that could influence them when they find out that a nursing home or nurses or CNAs are being accused of negligence in your case.
So I guess the lesson is don’t assume just because a lot of times nursing homes get a bad rap that everybody feels the same way.
Families pursuing a claim can learn how nursing home neglect lawyers advocate for victims throughout the legal process.
How Did COVID Affect Public Attitudes Toward Nursing Home Staff?
Schenk:
I think that’s especially true as we came out of COVID, where I feel like the public sentiment was on the side of the medical industry, that, nurses are heroes and things like that, and I feel like there was, at least in Georgia, there was some of that for a long while after that.
It wasn’t just automatic default, the nurse is, probably did something wrong. It’s the nurse is a hero and, and that’s the lens from which they view.
Bonamarte:
Yeah, I would agree with that. There’s certainly some people that believe that COVID exposed long-standing problems in nursing homes that already existed because, they were, frankly many of them were ill-equipped to deal with something, that you can make an argument they should have been, and there’s the other side of the coin that some people were certainly sympathetic to the healthcare workers and to your point, may have viewed them as heroes and doing the best they can under really difficult circumstances.
Anything You Used to Do but Don’t Do Now?
Schenk:
Let’s open this up to beyond long-term care nursing home cases to your other practice areas, the birth injury and things like that.
Bonamarte:
Yeah.
Schenk:
Is there anything that you used to do during voir dire that you don’t do now? Like any lessons that you’ve learned?
Bonamarte:
Yeah. I don’t, I don’t use the word any, so I wouldn’t ask the question, “Is there anything or does anybody…”
I’ve, that’s just a little nuance in talking with my jury consultant that I use a lot. He, he has found, and I’ve agreed, and, it’s been my experience as well, that when I say, “Does anybody think this?” For some reason, people close up a little bit. So the f- the, the other way to do it is, “Who here thinks this?”
Or, “Some people may feel this way, some people may feel this way. Who here feels closer to group A? Who here feels closer to group B?” And I’ve seen that from the defense, actually. A lot of their questions are, “Does anybody think this? Does anybody have a problem?” No one wants to think that they have a problem so I don’t use that.
I try really hard not to use the word any, anything, anybody,
Schenk:
And so you, and I don’t mean to interrupt you, but so you replace that with, who has done X, Y, and Z?” Or, “Who thinks X, Y, and Z?” Or you soften it up by saying, “Some people think this, some people think this. Who thinks” Yeah. I see, okay.
Yeah, and I think that has to do with whatever that psychological phenomenon is with groups where if someone’s injured, for example, and you wanna help, you can’t just say, “Someone call 911.” You have to point to somebody and say, “You, call 911.” Otherwise everyone thinks that everyone else is doing the thing.
Bonamarte:
Yeah and I guess now that I’m actually saying it out loud, when you say, “Who here thinks this?” It makes it okay that they’re thinking that. Or, some people think this, some people think that, then it’s okay to more, they feel more comfortable, I think, volunteering that information and opening up, as opposed to asking for a brave volunteer.
“Does anybody think this?” And someone raising their hand, ’cause I’m sure people have had that experience where you’ve myself included where I’ve said, “Does anybody feel this way?” And, I have to then call on somebody ’cause nobody raises their hand.
The other thing that I have learned and I can think of a particular case where there was a, a birth injury case, and it was a two-day jury selection shortly after COVID, I think it was 2022, at least shortly after we started trying cases again.
I don’t assume that just because I’ve gotten somebody to say that, the other side, the defense in my case, has a little bit of an advantage, that they can’t be rehabbed. So I’ve learned through some credit to some people. I work a lot with Eric Oliver. I’ve studied a lot of Keith Mitnik’s stuff.
I think he has some great immediately usable things on jury selection in particular. But once I have gotten somebody to say that they lean towards the defendant, I do this little bit where I talk about, where I say something to the effect, “Thank you for respecting the process. It’s a process of mutual respect.
Filing deadlines can affect whether a claim moves forward, so families should understand the statute of limitations for Georgia nursing home neglect.
And what do I mean by that? You’ve been respectful by being honest and open with your answers, and the mutual part of it is that nobody in this courtroom, not me, not the defense lawyer, not the judge, is gonna try to twist your arm and change how you feel. And in fact, you may ask if you can be fair, and you’ll probably say yes, but that doesn’t change the fact that the other side starts out a little bit ahead, does it?”
And I remember thinking on day one at jury selection, I got all these motions for cause, which I really should say that’s an objective. You wanna try to get as many motions for cause as you can so you can save your peremptories. But barely any of my motions for cause were being granted because the judge felt that they were rehabbed because they said they could be fair.
A lot of plaintiff’s lawyers have experienced that. You think you got a lot of good stuff, you think you have the basis for the motion, and then the defense or the judge or someone asks can you be fair?” And then you lose your motion for cause. So I used that little bit on day two.
Day one I used four peremptories. Day two, every motion I filed for cause was granted. I used zero peremptories.
For an overview of the litigation process, read our guide to suing a nursing home for neglect in Georgia.
Schenk:
Wow.
Bonamarte:
So I think that’s important. I don’t assume that just because I think I’ve got something, I try to press it a little bit, and basically to stave off rehab.
Question of the Week
Schenk:
We interrupt this interview to bring you the Nursing Home Regulation Question of the Week.
This week, the difficulty level is easy. If you get this right, for the rest of the day, “Let me think about it,” is an acceptable answer to any question put to you. “Hey, are you gonna go to that meeting later on?” Let me think about it.” “Hey, Mom, why are we eating McDonald’s again?” Let me think about it.”
It’s acceptable if you get it right. Here we go.
Under forty-two C.F.R. 483.55b1 regarding dental services, what must nursing homes provide or obtain from an outside source for residents? Is it A, routine dental service; B, emergency dental services; or C, both A and B
And that answer is C, the nursing home is responsible for both routine, or at least lining up routine dental services, as well as making sure that the residents receive emergency dental services as necessary. You mentioned two names. You mentioned Keith Mitnik and Eric Oliver. Who are they?
Bonamarte:
Keith Mitnik is a trial attorney with Morgan & Morgan. He’s published some good books. There’s a lot of stuff out there these days, but I th- I found his. David Ball who’s written the books on damages, who also in those books has stuff on jury selection. I think those two individuals have published some good stuff that we can use right away in our practices. I, and Eric Oliver, is just a jury consultant that I use quite frequently.
When Should You Use a Jury Consultant?
Schenk:
Do you, do you use a jury consultant in every case?
Bonamarte:
No. I think a lot of the cases that I’m trying now, I am using them, and it’s, a lot of times it’s driven by how I perceive the value of the case. If I’m thinking it’s about a hundreds of thousand dollar case, it may not be economically feasible to use a jury consultant.
But I, but, there’s other things that you can try in terms of online focus groups, stuff like that. Talking to people in your office, getting their perception of their views on a case I think is really insightful, and probably an underutilized tool that we have, especially, depending on the office size and how many support staff you have, law clerks, friends, family.
There’s a lot of things that you can do that don’t cost a lot of money, where you can get some insight and learn some things that you’re not thinking about. On our bigger cases, especially where there’s complex issues beyond just a jury consultant, I’m using that person to help set up focus groups, things of that nature, which are fascinating experiences as lawyers.
Trial strategy and persuasion are explored in Episode 203: Considerations for Closing Arguments in Nursing Home Cases.
Schenk:
Okay, so with respect to getting into the facts of the case, I know that you you’re not gonna try the case of voir dire, I get that. But are you, in order to reveal some of the biases, are you actually getting into who your client is? My client is 89. She’s diabetic.
She’s, morbidly obese. She developed a pressure injury, or she’s 93, fell down or whatever. Does anybody have any thoughts about that? Things like that. Is, are you trying to do that in voir dire to reveal biases?
Bonamarte:
Yeah, I would probably do it in the context of money damages. I may ask a more general question and I’ll go back a little bit further.
I learned a little bit where I do the same thing in every case. I ask the jury, “Who here has heard of the phrase ready, willing, and able?” And most people raise their hand. “Who here wants to take a guess as how I know that you’re ready?” And some people will say we’re here.” And I’ll say, “That’s a little bit ahead of the, that’s the next step.
I know you’re ready because you have a Cook County address and you open your mail.” “Who here wants to take a guess as to how I know you’re willing?” Mr. Shank, now it’s your turn to answer. We showed up today. That’s correct. The purpose of voir dire is to figure out who’s able to serve on a juror, as a juror in this case, in this courtroom, as opposed to one of the many other courtrooms on the 30th, on the 30 floors of the Daley Center.
And by able, I don’t mean in the sense of talent or intelligence. Able in the sense that you don’t come into the case with any certain beliefs, biases, prejudices that may cause one side to have an advantage before you’ve heard any of the evidence in the case. So that’s gonna be the purpose of what we’re asking here today.
And when I talk about bias and prejudice in this context, those don’t have to be bad words, and let me give you an example of that. I want you to imagine that we’re having a pizza-making contest, and juror Mr. Smith and juror Ms. Jones. Juror Mr. Smith is gonna make his world-famous deep dish pizza, and Ms.
Jones is gonna make her world-famous thin crust pizza. And now I want you to pretend that I’m actually being asked to judge the contest, okay? Is everyone with me? Now, I have to tell you a little bit of a secret. I don’t particular particularly like deep dish pizza, even though I’m from Chicago. Now, who here thinks that I should tell the two contestants that I don’t particularly like the deep dish pizza if I’m being considered and they have some input as to who’s gonna be a judge in their case?
Attorneys preparing witnesses and testimony can learn practical techniques in Cross-Examination Strategies for Depositions.
And everybody usually raises their hand. And I, when someone raises their hand, I said, “Who here thinks by telling Mr. Jones that I don’t particularly like deep t- deep dish pizza, by exposing my bias against deep dish pizza, that’s actually the fair thing to do?” Everyone raises their hand. Now, I’m giving a shortened version of it, but obviously this case is not about something as lighthearted as a pizza making contest.
It’s a nursing home negligence case, a wrongful death case, and some people because of something they’ve heard, a belief they have, something they’ve seen in the news or heard on the news, they have a particular distaste against these types of lawsuits asking for money damages, meaning they have feelings against these types of lawsuits and the people that bring them.
Who here feels that way, okay? That usually works to get some people to raise their hand because I’ve exposed that it’s okay to have biases, that while it’s not as lighthearted as that, it’s not a bad thing because some people do have these types of beliefs, and usually I get people talking.
A lot of times people undoubtedly still raise their hand and tell me they’re okay with the lawsuits, and if I think they’re gonna be probably stricken by the other side because they, hate hospitals or doctors or nursing homes, sometimes I’ll just do the work for the other side because I think it makes me look particularly fair.
And then normally after I’ve gone through the panel and their feelings on this, I’ll lead into the money damages part, and I may ask, “Now, some people feel it’s okay to bring these lawsuits, but let me say in this particular case at the end of the case, I can’t tell you all the facts, but I’m gonna be asking for an award in the millions of dollars, okay?”
And I’ll go through a similar line of questioning on that. Who thinks that’s just lawsuits are okay, but that’s just too much money. There’s no way that they could do that i- in any type of case? And I’ll get people talking. And then I may add now let me tell you that my client was an older individual that passed away, 89 years old.”
Who here thinks in the context of a nursing home resident who’s 89 years old they had a long life with adult children, bringing this claim, that there’s just no way I can award millions of dollars in that situation? So that would be a way I would get into it without necessarily being accused of indoctrinating- the jurors or catching objections because I’m getting too fact-specific, ’cause I’m not really revealing anything that probably isn’t already gonna be in a statement of the case. So that was a long-winded way to get to that, that answer.
Effective discovery and witness preparation are discussed in Deposition Strategies in Nursing Home Cases.
Schenk:
That was fantastic. Michael, we really very much appreciate you coming on the show and sharing your knowledge with us.
Bonamarte:
I appreciate you having me, Rob. I think it’s great what you’re doing.
Schenk:
Folks, I hope that you found this episode informative. If you have an idea for a topic that you would like for me to discuss, please let me know. If you have an idea for a guest that you would like for me to talk to, let me know that as well.
New episodes of the Justice for Residents podcast come out every single Monday. And with that, folks, we’ll see you next time
Thanks for tuning in to the Justice for Residents podcast. Nothing said on this podcast, either by the host or the guest, should be construed as legal or medical advice, nor is intended to create an attorney-client relationship between the listener and either the host or any guest. New episodes are published every Monday and are available on all your favorite podcast apps, as well as on YouTube and our website, justiceforresidents.com.
Again, that’s justiceforresidents.com. The Justice for Residents podcast is hosted by Rob Schenk, a trial lawyer representing victims of nursing home abuse neglect throughout the state of Georgia. We’ll see you next Monday.