Consider Juror Emotions, Politics In Wrongful Birth Cases

By E. Drew Britcher, Armand Leone and Jessica Choper

October 2006 | Volume 42, Issue 10

Courts respond to wrongful birth claims in a wide variety of ways, largely because these cases require judges to evaluate not just the law, but also questions of morality, medicine, and society.

The Rhode Island Superior Court, in an unpublished opinion, observed that these cases are essentially about abortion. (Schloss v. Miriam Hosp., 1999 WL 41875 (R.I. Super. Jan. 11, 1999).) Those who can accept the legality of abortion have no difficulty finding room in the common law tort of negligence for a claim of wrongful birth. Those who cannot accept it think no one should be compensated for being unable to have an abortion. This observation highlights the way wrongful birth actions are intertwined with politically and emotionally charged views that jurors may hold. Plaintiff lawyers must keep this context in mind when handling a case.

Case evaluation. Be realistic in your evaluation. First, you should be comfortable with a woman’s right to elect an abortion, for any reason, through the end of the second trimester. If you are not, you will not be an effective advocate for your client’s rights. Remember, most of the findings that lead to these abortions are discovered after the 15th week of gestation.

Second, you must feel that the average pro-abortion-rights juror would understand your client’s decision. For example, one case that we chose not to handle involved a couple whose child was born without one hand but was otherwise healthy. The absence of the hand could be seen on the ultrasound printout, and it was clear that someone at the hospital had simply missed it. Nevertheless, we thought that even a juror who favored abortion rights would have a hard time believing that the parents would have terminated the pregnancy for that reason.

Third, recognize the significance of religion. Evaluate your client’s commitment to her right to that the child is born.

Thanks to an adversary who asked a Catholic client of ours at deposition some rather aggressive questions, assuming that she would be troubled by them, we learned one of the most important questions to ask-and a common response. He asked our client, “Who did you ever tell of your views on abortion?” She answered that she had told her mother that she believed women had the right to choose abortion. She also provided the time and place of the conversation, which took place long before not only the deposition and the conception, but also before my client’s marriage.

Since then, we ask every potential wrongful birth client, “Who can verify that you would have made the decision to terminate?” Surprisingly, perhaps, it is often the woman’s mother.

Jury selection. This step is everything. You must argue that your clients have a right to a jury that fully accepts the legality of abortion. Try to get a written jury questionnaire that delves into each potential juror’s views. You must convince the trial judge that you have the same right to screen potential jurors as someone trying a capital case. The argument is straightforward: There are no two issues on which most jurors have a more developed, embedded, and ardent conviction than the death penalty and abortion.

In our trials, we provide a 50-question screening questionnaire that asks potential jurors for their views on certain issues, to make sure every juror can confirm his or her acceptance of the right to a lawful abortion. Any juror who does not is challenged for cause. Individual voir dire in chambers is essential, because an entire panel could be voided by one overzealous member.

Trial. Focus the testimony on the severity of the child’s anomalies. This helps the jurors understand the devastating consequences of your client’s loss of the power to make her own decisions. Be sure you are comfortable with the language of abortion as a medical procedure and terms that distinguish a fetus from a child.

With careful selection and proper planning, these can be rewarding cases to pursue. Many of the families involved face heavy financial, emotional, and physical difficulties because of their children’s special needs. These cases are a wonderful opportunity to ease these burdens and improve the child’s life as well as that of his or her parents.

E. Drew Britcher, Armand Leone, and Jessica Choper are partners at Britcher, Leone & Sergio, LLC in Glen Rock, New Jersey.