TEN RULES FOR IMPROVING JURY VERDICT OUTCOMES

 

  1. Screen all new cases objectively and not emotionally. There are cases where the inherent issues are so negatively compelling and your odds of prevailing so slight it is a disservice to the client and the system to accept the case. Your decision of whether to carry the case forward should be objective and not emotional based upon evaluation of the liability, the extent of damages and the ability to collect damages.
  1. Identify the controlling issues. You must objectively identify all of the strong issues in the case, good and bad. Your role is to initially analyze the affirmative and negative issues objectively, not subjectively. The benefit of an issue focus study is this identification. The most accurate identification of significant case issues is done by focus studies, but only when done correctly. They must be issue conducted focus studies and rather than a form of mock trial studies. On major damage cases more than one study may be necessary.
  1. Determine the priority of importance of the issues. You arrange the issues by priority of significance. Once the issues are arranged by importance, the next step is to decide the best way of framing the issues for trial. Framing these issues is critical to determine if the negative issues can be overcome and how difficult they will be in trial with a jury. This is a critical step – to identify all issues that have significance with people and what framing is best. Focus studies are helpful in this regard.
  1. Objectively analyze your client impression. In many cases client impression with the jury will determine the outcome of the case. Your gut reaction to client impression at the initial meeting is probably accurate. Over time you are more accepting of bad traits and finally you lose sight of the accurate impression your client makes with others. Most client impressions can be improved by spending quality time with them over issues in the case but this requires dedicated work. Accept that there are some people whose impression is so unfavorable you should decline the case no matter how compelling the case.
  1. Control the complexity & length of trial. Cases with difficult issues call for shorter trials with a short simple one theme approach. The longer you take to try a case with negative issues, the more obvious the problems in the case become. Cases with difficult issues are not helped by adding layers of evidence and lengthening the trial. The longer you take, the more you add, the more complex you make it, the worse your case. Simplify the case into a strong affirmative issue and make the trial short. Your goal should be to shorten the trial. There are good reasons why we should be making every effort to shorten our jury trials. First, people today want sound bites and headlines rather than the story. That’s how they get the news and use their digital devices. They get bored easily and a bored jury is not a generous jury. Second, the more days your trial will take the less the quality of available jurors. Jurors are not willing to serve in trials last two or more weeks because they have their own lives and most lose salary. The ones who are willing are not jurors you want. Unhappy jurors are angry people who are not likely to help others. If you have jurors who do not want to be there because of the length of the trial you can be sure they are defense jurors.  The longer your trial the more unwilling and unqualified juror you end up with. Third, the longer the trial the greater the chance something bad will happen to your case: a witness becomes unavailable, damaging unexpected evidence etc. Since impressions are formed early, you should strive for shorter trials. Eliminate the unnecessary expert and the unnecessary evidence, shorten your direct and be relentless in making your cross on really big issues only.
  1. Be the first lawyer to talk to the jury about difficult issues. There are two fundamental reasons for this. The first is that it inoculates the jury for the issue so when the defense brings it up, the impact is greatly reduced. The more they hear about negative issues, the less significant they become. This also gives you the opportunity to frame the issue in the best possible light. The second reason is that it gives you credibility for being honest about negative issues. Our credibility is increased by acknowledging problems in our case. It is not enough to bring it up once in voir dire and never mention it again. I am talking about facing the negative issues in jury selection and carrying it forward throughout the trial.
  1. Jury selection should be an open discussion and not an interrogation you don’t have time for both demographic questions and open discussion. You are after significant values and past life experiences that relate to the key issues you have identified. Jury selection must be an open discussion and not a closed question inquiry. Talk about the issues openly and really listen to the answers. Let other jurors respond to the negative juror responses, not you.
  1. Recognize the trial is about jury impression of the case and not primarily about you. Jury impressions are made early and are lasting. Once made all evidence is filtered through the existing impression unless something very dramatic occurs to change impression. Trials are not about the skill of the lawyer. They are about the overall impressions the jurors form. They do not weigh evidence logically. They decide largely on an emotional, unconscious level and use rational reasons they make up to justify decisions. Therefore, at all times during trial, the lawyer’s focus must not be on himself or herself – “how am I doing?” – But rather on the jury, “what is the jury thinking right now?” Focus on the jury not on yourself. Continually look at the trial as if you were an observer. You aren’t there to perform for the jury. They are forming broad impressions of who should win based upon the big picture and the issues. They aren’t there to admire the lawyers. That’s why “bad” trial lawyers win cases against “good” trial lawyers.
  1. Be an authentic person. While the trial is not about jurors evaluating the trial skills of lawyers, they form impressions about lawyer’s honesty, credibility and trustworthiness. Being real and being truthful results in the jury being willing to rely upon your representations and recommendations. Jurors trust you not to mislead them if their impression is you are truthful and trustworthy. This impression has very little to do with lawyer skills and techniques but everything to do with deciding the lawyer is not pretending to be someone they aren’t. Good looks, trial skills and oratory aren’t nearly as significant as someone who is seen as truthful and trustworthy. Don’t pretend to be someone you aren’t or act like someone else.
  1. Involve the jury. From voir dire on, the lawyer must involve the jury continuously. Too many lawyers, from opening statement to argument, ignore the jury. Great ones continually throughout the trial involve the jury. They maintain eye contact from time to time with all of the jurors but not in an uncomfortable way. During questioning of witnesses they take the time to take a look at the jury. They use “we” and not “I.” They find reasons to talk about the jurors “I think the jury would like to know…” and they let the jury know they are trying the case to them and not as spectators at the lawyer’s big performance.
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DIRECT EXAM OF A CLIENT WITH A BRAIN INJURY

When we represent people with brain injury it  takes a lot of time, factual inquiry and thought in deciding how to present the damage evidence at trial. The most difficult  question is what to ask a client who is capable of testifying. In general, my belief was that with major injury cases “less was more” because major injuries generally speak for themselves  and don’t need a lot of detail which might make jurors feel you are playing for their sympathy. Once jurors understood the seriousness of the injury they fill in the rest of the damage story themselves.  Their story would be real to them and have a greater impact than if you are providing the details. In addition, there is the wisdom from Shakespeare in King John “To gild refined gold, to paint the lily, to throw a perfume on the violet, to smooth the ice, or add another hue unto the rainbow, or with taper-light to seek the beauteous eye of heaven to garnish, is wasteful and ridiculous excess.” You can easily overdue proof of a major injury damage story.

For that reason, it was my practice,  in the major injury cases, to not have the  client attend trial except during jury selection, sometimes during opening statements and only when they were called to testify. I prepared the jury for their absence in voir dire by telling the truth that it had been decided that it would not be mentally healthy for them to go  through the events again during a lengthy trial. I always offered testimony, usually by a family member and treating doctor, to support the concern.

I  decided what to ask and how much to ask the client when they testified based upon their ability and the impression they would  make on the jury. Each outline was crafted for that client and it was always brief. The exams rarely would involve the injury event at all. My goal was to demonstrate injury.  In some cases I might only ask a few questions, given the client’s abilities, with a goal of simply having the jury see and  hear them talk.  I’ve had clients with serious head injuries on the stand less then ten minutes for direct. The general rule was the defense rarely asked any questions.

I had several cases and jury trials involving injuries to children from Key Pharmacuticals drug Theo-Dur, a Theophylline medication, for resulting seizures and brain damage. None of the clients, old enough to testify,  were on the stand long. For example, in 1994 an Oregon jury awarded $44 Million dollars for brain injuries from the use of the drug by a twenty year old client. During an eight week jury trial I  had him on the stand for no more than ten minutes.  In the example that follows Mike was a young man from Seattle injured from using the same product. He was  about fifteen years old when he testified. He had limited mental capacity but lacked full awareness of his mental limitations. He had uncertainty about his exact birth date, or exactly who the president was, but he also wasn’t embarrassed about it because he wasn’t fully aware of his situation. He was involved in activities including  school, but in a special needs limited way. His mental limitations had already been explained to the jury during trial when he was not there and before he testified late in the seven or eight week trial in Seattle. Each of these questions were crafted based on a lot of time spent learning the effect of the injuries  and what would best illustrate them in a way that would not be embarrassing or harmful to him.

Of course, this isn’t a outline that can or should be used in a general way involving brain injured children. It is only offered as an example of how one examination was crafted for a particular client.  It may help illustrate how you can prepare an examination for your brain injured client.

INTRODUCTION

1.HOW FEELING RIGHT NOW?

(1)  DON’T BE NERVOUS – JURORS NICE PEOPLE

.INFORMATION

 WHY DON’T YOU TELL US SOMETHING ABOUT YOURSELF MIKE:

a. ARE GOING TO SCHOOL? – Where

b. WHAT YOU LIKE TO DO DURING THE DAY

c. YOUR FAVORITE THINGS YOU LIKE DOING.

d. ARE YOU WORKING? (information?)

EVALUATION QUESTIONS

  1.  WHAT’S YOUR BIRTH DATE?
  2.  WHO’S  THE PRESIDENT OF THE  UNITED STATES?
  3.  ARE YOU IN THE BOY SCOUTS? Tell us about it.
  4.  TELL US ABOUT YOUR PIANO LESSONS
  5. WHO’S YOUR BEST FRIEND
  6. DO YOU HAVE A GIRL FRIEND MIKE

(1) go on dates

(2) where/what

(3) what do

(4) how often

7. DO YOU WANT TO GO TO COLLEGE MIKE? Explain

8. DO YOU GO TO THE MOVIES MIKE?

(1 )FAVORITE MOVIE

9. DO YOU READ BOOKS?

(1)  TELL US ABOUT YOUR FAVORITE BOOK

10. READ THE NEWSPAPER?

(1)WHAT PART DO YOU READ FIRST

(2)WHAT PART DO YOU LIKE THE BEST

11.WATCH TELEVISION?

(1)  TELL US ABOUT YOUR FAVORITE TV PROGRAM MIKE

12.  TELL US ABOUT RIDING THE BUS TO WORK MIKE –

13.  DO YOU LIKE LISTENING TO MUSIC MIKE?

(1) WHICH ONE

14.D O YOU GO TO CHURCH?

(1)  TELL US ABOUT WHAT YOU DO THERE

15.  WHAT DO YOU DO ON WEEKENDS MIKE?

16. DO YOU HAVE ANY PETS? TELL US ABOUT THEM

CONCLUSION

  1. MIKE, WOULD YOU  TELL US WHAT’S IT LIKE WHEN  YOU WALK INTO A ROOM AND YOU DON’T KNOW THE PEOPLE THERE VERY WELL?  (Why)
  2.  WHAT’S WOULD YOU LIKE TO DO IN THE FUTURE? (why?)
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PRINCIPLES OF A GREAT TRIAL

Jim Perdue Sr is a Texas trial lawyer who has a fifty year history of great plaintiff trial work. We are friends through our membership in the Inner Circle of Advocates. He has published books, videos and articles about trial work and is a national lecturer on the subject. He is also  an adjunct professor at the University of Houston Law Center as a lecture on trial skills. I’d like to share some brief points about  communication from one  his books, Winning with Stories, available from Trial Guides publishers.

  • Be sure to make clear “burden of proof” actually means “more likely than not.”
  • Rules are what keep us safe. We have to know the rules in order to know what to expect  and if we don’t know what to expect we are fearful. Therefore, when rules are broken, we feel threatened. It’s in our own best interest to make sure that the rules are enforced so talk about rules to the jury. For example: (1) morphine is a powerful drug  (2) morphine should only be administered  in the recommended dosage  (3) only a medical doctor has the knowledge and experience to set the dosage amount and (4) the nurse administered morphine without the doctor’s approval & that violated a basic rule of safe medical care.
  • The outline for trial consists of  simplifying the facts, setting the scene, tying it together with the theme and presenting it as a story.
  • Understand the importance of framing. What we call something and how we describe it determines  our impression. “Clear cut logging” evokes a response in one’s mind that is different from “forest management practices,” but can be used to describe the same activity.
  • Our reptilian brain helps us to survive. When faced with the unknown it asks itself  “Can I eat it or can it eat me?  Should I fight or should I run?” This part of our primitive brain operates subconsciously and totally automatically. It sleeps until there is something that signals it to a wake up and be alert. When this part of our brain perceives that we or our family are threatened  it will automatically react.  That is why  self protection is such a powerful theme in our cases  when connected to a verdict for the plaintiff. If the primitive brain concludes a verdict for plaintiff  is a self  protection act the rational mind will decide a verdict for plaintiff  is appropriate.
  • Much has been written about “the cultural code.” What we are talking about is that  inherent in our  subconscious minds, as a result of our past significant experiences,  cultural impressions and observations,  are  “code words”  connected to  things in our culture that automatically attach as existing impressions. For example,  a doctor might evoke the code for “hero.” A hospital would  have a code  for “processing plant.”Understanding the codes in  your  case will identify existing  bias or impressions.
  • All trials  are morality plays  told as stories.  They all involve right and wrong.  Our stories are “good” when we tell  how it happened, “better” when we tell why it happened  but “best” when we tell how it felt.  Stories should begin with the antagonist –  the defendant. That’s because of risk attribution bias we all have. The idea that we would never have done  whatever it is that caused or was the result of some activity. We second guess and believe we would never have done that.  When we start with the antagonist jurors will go back and second-guess what the Defendant did.  That’s why we do not start our stories with the protagonist but with the defendant.
  • Remember the importance of motive. With regard to the plaintiff, the jurors want to know why the plaintiff brought the lawsuit and it cannot be just for money or only about this client. Jurors want to feel their jury time was important and made a difference. Their verdict must be seen as having meaning outside of the court room and far more important than just the individual plaintiff. They want to see the plaintiff’s  motive in filing suit as changing something for the better and making sure it doesn’t happen again.  Motive is also important with regard to the defendant. Showing that a doctor simply made a mistake is likely going to result in jurors following their human nature and forgiving the mistake. It’s the wrong motive behind the mistake  that causes jurors to impose punishment. Greed or indifference or other wrong reasons for the mistake require punishment.
  • Good trial lawyers know the importance of connection with the jury. The primary way we connect is with eye contact but body language is equally important.
  • In trial we have to demonstrate proper demeanor. Show concern for others. Avoid interrupting. Use simple, direct and concise language. Project belief and your clients cause. Show self-confidence and self assurance. Radiate energy and passion for your clients case. No matter what happens keep a positive outlook and keep smiling.
  • Always view the trial from the broad perspective of the big picture. Be a big picture lawyer.Refuse the defendants temptation to chase after frequent issues the defendant creates to distract. Keep your eye on the big picture.
  • Most important, all trials are stories that have a beginning middle and end.  Present your case as a story and not a checklist accounting of facts. To the extent you fail to tell a full story the jurors will create their own story to fill in the blanks. Your story is about an innocent person who suffered harm because of the bad motive of the defendant  who refuses to accept responsibility or provide  the remedy  for the harm created. The failure to hold the defendant accountable will mean that the jurors and their families are in danger. Rules have been broken which put all of us at risk  and they must be enforced through the verdict for the plaintiff. It’s the morally right thing to do and the jurors will have done something important that they will be proud of for the rest of their life.
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