Before the $100 million defamation trial between Terry Bollea, better known as Hulk Hogan, and gossip and news website Gawker can unravel this month, their attorneys must decide: who will be on the jury?
Whoever sits in the jury box will determine if Gawker violated Bollea's right to privacy when it published the video of the former professional wrestler having sex with his best friend's wife, which Bollea's attorneys say garnered 7 million views.
But attorneys will likely face several challenges, from Bollea's celebrity status to jurors' perceptions of sex, as they feud in a Pinellas courtroom to keep the six jurors, plus three alternates, that each side likes the most.
On the one hand, there's Gawker, a website that makes money by "peering in the virtual window of folks and putting private moments on display without permission," said Charles Rose, director of the Center for Excellence in Advocacy at Stetson University College of Law. On the other, there's Hulk Hogan betraying his former best friend, Tampa radio DJ Bubba the Love Sponge Clem.
"You've got competing lines across the board," Rose said. "It may very well be that the jury that's going to function the best for the trial is the one that dislikes you less than they dislike the other side."
Likability aside, some things professors and lawyers said Bollea's attorneys may be searching for this week: former pro wrestling fans. People who follow the lives of the rich and famous a la Kim Kardashian. Victims of privacy crimes. The middle-aged.
"Quite often, an older juror can also be more understanding about sexual issues because they've had more experience, they've kind of lived life," Rose said.
Divorced men could also sympathize with Bollea, a divorcee himself, said Joseph Hanna, a New York-based sports and entertainment lawyer.
Bollea, raised in Tampa, may also have a hometown advantage over Gawker, the corporate outsider from New York.
"Gawker is going to have to explain what they do, and that's where the hometown jury comes into play," Hanna said. "Who are you guys? You guys are a tabloid from Manhattan? Your conservative St. Petersburg people might view this as smut."
On Gawker's side, attorneys will likely be excluding any candidates who have negative opinions about the media and mining for tech savvy 20- and 30-somethings, experts said. Attorneys might pose questions like, do you own a smart phone, use apps like Snapchat, or record video with your phone?
"Younger people have a tendency to believe that anything that's newsworthy should be available to the public," Hanna said.
Potential jurors this week completed a 14-page questionnaire that includes questions about their knowledge of the case, Bollea, and Gawker. It will help attorneys get a better sense of the people within the pool. During jury selection, attorneys for each party also get a certain number of peremptory challenges that allow them to dismiss a potential juror for any reason. In this case, each side will have six, plus one for an alternate juror.
Among the first questions: "This case involves images depicting sex and nudity, and the use of profanity. Would receiving and viewing this type of content affect your ability to serve as a fair and impartial juror in this case?"
The "content" in question is the one minute and 41-second video excerpt of Bollea having sex with Clem's then wife. Jurors will have to watch the sex tape.
Carolyn Koch, a Virginia-based trial consultant, said the concept of a sex tape is not as shocking as it once was to the public.
"It's two consenting adults... People have a real problem looking at things that show violence or sex acts against children," she said. "This is more along the lines of rubbernecking."
Other factors will also weigh on who stays and who is dismissed from jury selection, like jurors who already deeply dislike Bollea or his use of the N-word during a racist remark made public last year.
"They might have already assumed the worst of Hulk Hogan," said Valerie Hans, a Cornell University law professor who focuses on jury research. "They knew a fair amount about him, about his blustery ways, his persona."
Another challenge: the length of the trial, expected to span three weeks.
"The longer the trial," said Steve Yerrid, a Tampa civil trial lawyer, "the more likely there is going to be hardship on a number of jurors."
Attorneys should also be mindful of people who might seem too eager or excited to be chosen as a juror due to "voyeuristic reasons or because of the potential of making a buck afterward," said Rose, the Stetson professor.
"Jury selection is the hardest skill for trial lawyers," he added. "It actually often has more impact than any other portion of the trial."
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