I’ve written about this before, but I still have plaintiffs lawyers who express doubt about the rule that a plaintiff should always start their case by attacking the defendant. Some years ago Lawyers Weekly published an article by Elaine McArdle about the  research regarding this rule. In the 1990s,trial lawyers Gregory Cusimano and David Wenner investigated the issue.They presented fact patterns to hundreds of focus groups around the country and in that process they observed a consistent pattern: when they began their opening statement by talking about the plaintiff, jurors would blame the plaintiff for what happened. But, if they started with the defendant’s conduct, jurors blamed the defendant and placed much less blame on the plaintiff. It turns out their studies that plaintiffs should always  start by attacking the defendant was consistent with research by social scientists and has since been confirmed by ongoing research.

The concept of “availability bias” was identified by social scientist in the early 1980’s which is our tendency to utilize the most easily available and memorable information to determine probability and reasons why. Jurors began to fill in the blanks and focus upon the behavior of the first person discussed. That is the context by which they create their story. It governs how people formulate opinions and make decisions. As people attempt to understand something new, they seize upon the information presented to them first to develop a working story of what happened and why, filling in the blanks, using whatever information becomes available. The primary blank that they want to fill in is:  why something happened at all.  Furthermore once a story is formulated everything they hear later is filtered through this first impression.

If the lawyer starts the trial by talking about the defendant, jurors will construct their understanding of the case in the context of the defendant’s behavior. Jurors develop stories about what happened and then as evidence is presented they look for evidence that supports their version of the story and filter everything else out.

When that factor is combined with “sequencing” it means that when we start talking about the conduct of the defendant first the most likely conclusion of the reason why the event happened will be something relating to the defendant.

As an example,  in a case involving faulty brakes resulting in serious injuries, one should not start with the plaintiff because to do so will prompt questions in the jurors minds about the plaintiff’s conduct. “Why didn’t he notice there was something wrong with the brakes before this happened?” On the other hand, if you start this case at the manufacturing plant where engineers are making choices about the type of break system to use you change the focus to the conduct of the defendant. After covering all of the negligent choices made by the manufacturer resulting in an unsafe product, by the time you tell them about the collision, the jurors already know the brakes are going to fail and have blamed  the defendant for it.

However, if  you talk about the plaintiff first the jurors will immediately begin evaluating plaintiff’s  conduct. As a result you start the  story about a brain injured child with the mother and labor, the result is jurors talking about the conduct of the mother and whether she should have realized something was wrong. Change the sequence  and start with the doctor, hospital and nurses and the jurors are focused upon their conduct as the reason for the failure. Keep in mind the story needs to be well told but not with numerous details. Think of a 10 word telegram as the story: “mom in labor, baby in trouble, nurse ignores, doctor not to be found and baby born brain injured.”

There is also “defensive attribution” where the natural tendency is for the jurors to believe they would never have done whatever is being described so that if you start with the plaintiff the process works against the plaintiff, but if you start with the defendant it works against the defendant. The hindsight factor of the jurors believing they would never have done whatever is the cause of the injury. If you start with the plaintiff, they will conclude they would have never have done what plaintiff did, but if  you start with defendant they will feel the same way about the defendant’s conduct.

Their focus studies also disclosed the bias that “things just happen” and aren’t anyone’s  fault.  This turned out to be a very strong anti-plaintiff bias. By starting with the defendant’s conduct jurors see that the defendant made it happen. In addition, they found a “personal responsibility bias” that people are responsible for what happens to  them and shouldn’t blame other. It’s a sort of” contributory negligence” idea. When you  start the story with the defendant’s bad conduct and offer evidence that the plaintiff did all the things that are reasonable the contrast diminishes this bias.

This idea of starting with the defendant first also involves the  issue of presenting the defendant or defenses in your case in chief. Should you call the defendant in your case or  show the deposition video or  read excerpts from the  deposition of defendant? If you have strong evidence in that regard doing  so is consistent with the idea of start with  the defendant first.

The research and studies demonstrate it is a rare case when not starting  with the defendant is appropriate.

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An analogy is generally defined as the act of comparing two things that are alike. A metaphor is a figure of speech in which a term or phrase is applied to something which is not literally applicable in order to suggest to a resemblance such as “a mighty Fortress is our God.” A proverb is a brief statement of advice like “Too many cooks spoil the broth.”A marketing theme is a central, reoccurring idea or message that connects with the product. Advertising slogans are short, memorable groups of words or phrases promoting a central idea. How something is labeled or described influences our impression. This process we call “framing the issues” involves how something is presented in order to influence the impression people form about the issue. All of these are are powerful tools in communicating and persuading. These are of particular importance in personal injury persuasion. Here are examples pf some of these effective communication devices:

  • Preventable, avoidable and inexcusable
  • when it came to responsible, safe and reasonable conduct  they cut corners.
  • They are shading the truth, hiding the ball and outright lying
  • they played Russian roulette with the health of women
  • this condition was as dangerous as thin ice, as hazardous as a leaky gas pipe and as ominous as an over pressurized steam boiler.
  • Waiting too long turned a lit match into a forest fire – a molehill into a mountain by the domino effect. It went from bad to worse.
  • The handwriting was on the wall but ignored
  • it made as much sense as smoking around a gasoline can
  • an ounce of prevention is worth a pound of cure
  • where there is smoke there is fire
  • the problem was ignored until it turned into a crises
  • it was a classic case of “doctor knows best”
  • The doctor deliberately drove through a red light
  • the surgeon just “shrugged his shoulders” and went ahead anyway
  • it was like a hot potato being tossed around and no one wanted it
  • it was like the fire station got a fire alarm but they ignored it
  • it was like hearing the smoke detector going off and taking the battery out of it but not doing anything

Following the conviction of a man who murdered her son the newspaper reported that she said: “death is an ugly thief. It robs people of their hopes, dreams, plans and their loved one. This has been every mother’s nightmare.”

Part of being an authentic involves the courage to take risks at being yourself. The late actor James Garner recalled advice he had been given by the actor Charles Laughton whom he recalled saying to him: “Jim, your problem is that you’re afraid to be bad.” Gardner recalled that “he was right – I was so worried that the audience wouldn’t like me that I was bland and innocuous. He told me don’t worry about the audience. Just go out there and take the risk of being bad!

In 1993 Mike James was an anchor for the news at King TV but was terminated when he declined being demoted to a reporting role and a new anchor taking over. His parting advice for news anchors was:

  • Make sense
  • don’t waste the viewers time; give them their dimes worth
  • speak plain English
  • use half the words you think you need

Good advice for all of us.

The American research group published rules for more effective advertising. As you read these think about your trial method and approach because they directly apply to what we do in trial.

  1. Does the advertisement tell a simple story, and not just convey information? Apply this to the complicated evidence we present as facts  and not as a simple story
  2. Does the ad make the desired call to action a part of the story? The story we tell has to be one where we identify the action that will accomplish the right outcome
  3. Does the ad  use basic emotional appeals? Research has proven no decisions are possible without an emotional component. Our message must involve emotion for doing the right thing and it must not be a plea for sympathy.
  4. Does the ad use easy arguments? The arguments need to be logical but simple. Nothing complicated. This is where metaphors and analogies are important.
  5. Does the ad show, and not tell? What great advice because demonstration or video animation or exhibit illustration are much more important than talking about it.
  6. Does the ad uses symbolic language and images to capture the imagination? The importance of symbolic language and images is that stimulate the imagination. What we see in our minds is an essential part of persuasion and communication.
  7. Does the ad match what viewers see and what they hear? We  always need to start where people are and work from there in persuasion. A person’s values  and ideas aren’t going to be changed in a trial so start with them and build your case.
  8. Does the ad stay with a scene long enough for impact? What this rule means  to us is the importance of making things clear and the need for repetition to be effective.
  9. Does the ad let powerful video speak for itself? We all know video can be and often is boring. It must be short and with a strong impact. It should  be done in a way that no explanation is needed.
  10. Does the ad use identifiable music? I don’t suggest you play music in your trials, but I do think the words you use and what you say must be the jurors language and not that of scholars, rappers or lawyers.
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The late sales motivational speaker, Zig Zigler, wrote a book: “Timid Salesman have skinny kids.”  Having the  courage and knowledge about how to close  the sale and ask  for the order is an essential  part of sales. In sales it’s essential that the sales person believes in the product they’re selling and the fairness of the sales price. The skill required to complete the sale involves convincing the customer of the same. Just as in sales there are certain fundamental principles that apply to persuading a jury to agree to the verdict that you want.

Gregory Cusimano has studied and written about juror motivation and trial for many years. In the September 2016 issue of Trial Magazine, published by the American Association for Justice, he wrote a helpful article covering some of these principles. His recommendations and research in psychology of how to asked the jury for the verdict you want include some of the following ideas.

From time to time I still read and hear lawyers advocating not suggesting any specific figure or verdict from the jury. Certainly there are states like Pennsylvania where the plaintiff’s lawyer is not permitted under the rules to suggest a figure but given a choice the research is clear on whether you should ask for a specific verdict or remedy or not  and the answer is you should ask for a specific figure. The jurors are looking for guidance from someone they trust. Furthermore there are some psychological factors which support the wisdom of doing so.

There is a principle of “priming” which includes the fact that our opinions and choices are influenced by suggestions made before expressing our choice or opinion. Suggesting a number to a jury has the greater potential of influencing their decision. In addition, comparisons to the price of objects of value such as museum paintings can influence on the evaluation of the verdict you’re asking because of the same principle.

There are also the studies that have been done in sales where showing the most expensive home first to a prospective buyer and then the less expensive homes was compared to the reverse: showing the least expensive homes first and then the most expensive last. Research demonstrated that showing the most expensive homes first influenced the buyers who were more willingness to pay a higher price for a home.

Suggestions of a dollar amount have an influencing effect. Jury research demonstrates that asking for specific amount of money or specific remedy produces better results than simply leaving it to the jury. While that does not mean that the lawyer can ask for any arbitrary amount he or she wishes because it must be based upon some rational analysis, it does mean that you should always ask for a specific verdict.

As  to using focus studies to establish how much you should ask for, my experience has been that focus group studies are not reliable as to the dollar value of a case. They are accurate, when done correctly however, in determining whether the case is a major damage case or not. Focus group findings as to whether the potential damages are “small, medium, or large” are generally reliable and helpful.

As to the dollar figure you use, Cusimano recommends  a policy of asking for a specific amount of money and not just a round number. That was always my practice. He suggests that specific amounts of money are seen as more reasonable than round numbers. For example, $51,132 is perceived as less than $51,000. In sales research indicates that people are more willing to pay more when the precise number was used.

There is an anchoring effect that I’ve written about on many occasions in connection with trying cases to juries. One of  it’s applications is that when there is a number suggested as a starting point that influences how we adjust up or down the number that we are asked  to decide. For example, if one first gives a range of choices in numbers and asks someone their opinion of  the population of the United States, their response is influenced by the range used. If one uses a range with a low top number  the response will generally be lower than a range with a very high top number.

A considerable amount of discussion among plaintiff trial lawyers has taken place regarding the question of when and how one brings up the subject of money with the jury. While we should always talk about money damages in some fashion during jury selection, the question is should we use a specific amount that we are going to ask for in jury selection? Gerry Spence is approach is to tell the jury how much he’s seeking in the case for the client and discussing that with the jury in jury selection. Others feel  it is too early  in the  case. Early disclosure answers one of the several  questions all jurors have: What  is this case all about? How much is the person suing for? What’s the defense?

Other lawyers are comfortable with only discussing damages in a general fashion. I have not seen specific jury research on this issue, but my own practice, in major damage cases, was to talk to the jurors about damages in a variety of ways.  For example, I might ask the jurors something like: “If at the end of this case you are convinced that a fair and reasonable verdict is many millions of dollars, how would you feel about agreeing to such a verdict?” Or, I might say: “let’s say at the end of this case after hearing all the evidence and listening  to the law from the judge, you are convinced that a fair and reasonable verdict would be a minimum of $20 million. Would you have any hesitancy in agreeing to the verdict?”  I also emphasized the enormous power the jurors had in this regard as well as the importance of doing the right thing for all parties.

In opening statement I always discussed damages by telling the jury that at the end of the case I would be providing them a way to fairly and reasonably evaluate a verdict in dollars. I would tell them that I wanted them to hear the evidence first and that after they heard the law from the judge I would be outlining a way to fairly evaluate what a reasonable verdict would be in the case.

As to summation there are some basic ways to argue damages. These include:

    1.  Per Diem: Assigning a dollar amount to time elements. With this argument one gives a dollar amount to an element of injury and multiples it over time. For example, one might argue the minimum wage per hour for pain and suffering over past and future life expectancy.
    2. Lump sum: Simply suggesting a total amount to be awarded without breaking it down. Here the lawyer either assigns a single total dollar value to the entire case without any specific dollar break down.
    3. Damage ranges: Suggesting a low and high range for the case or for each element of damage. One can also argue a range of verdict from a minimum to a maximum range which is argued is reasonable.
    4. Elements of damages: Assigning dollars amounts to each element of damage allowed in the jury instruction. In this case, the advocate takes each element of damage, such as pain and suffering.
    5. Damages per injury: Assigning damages to each specific injury received. One may chart each injury the client received. For each injury a dollar amount is assigned, past and future. The total of all injuries represents the total verdict.

In my summation I had a PowerPoint or poster divided into past and future damages. I had each category divided into economic and noneconomic damages. I also had the elements of damages outlined from the jury instruction. In almost all cases I would suggest specific numbers for each. Those numbers would be based upon an analysis that I offered to the jury regarding how to evaluate the loss. I always made it clear that economic damages were the easiest category because they dealt with bills past and future at out-of-pocket expenses. Those involved third parties that is medical doctors, healthcare and other providers who whose bills were being paid. I emphasized that the only important issue in the case was non economic damages because that was the test of fairness and justice, not the bills.

I always divided pain and suffering into mental and physical. I usually discounted the physical pain has not being as important as the mental pain. My dollar evaluations would sometimes involve a value per time involved, but most often would involve a discussion about a dollar value for the particular element of damage involved. I discussed how this particular element of damage had already impacted and will in the future impact the client. I usually had a suggestion for a reasonable value which might be based upon the charges made by the defense expert witness, the hospital or treating doctor bills or other examples from life.

These  are some very general ideas on a involved subject that may be of some help.

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