PSYCHOLOGY & THE LAW

The June issue of the American Association of Justice Trial magazine has an outstanding collection of articles about the trial practice by  a variety of great trial  lawyers and trial consultants including Mark Lanier, Gerry Spence, Rick Friedman, David Ball and Randi McGinn plus other greats as well. I’m going to outline just a few of the ideas from these articles.

  • David Ball recommends reminding jurors of key points they will need during deliberations. He calls it “arming the jurors.” For example, “In deliberations, you’ll need to explain to each other how you feel about the case. My job is to provide what you will need to do that. Let me start by telling you who we are suing and why..” During direct examination do the same, for example,  “Dr. Adams, the jurors will need to use this in deliberations so how would you explain it to them in non medical terms?”
  • Lisa Blue and Robert Hirschhorn suggest that in voir dire you should ask the panel “Q. If a loved one of yours was severely injured or killed due to negligence of another would you sue?” And, “Q. what is the name of one person, living or dead, whom you admire or respect most?”
  • Howard Nations does a great job of explaining attribution which is such an important concept. There are different kinds of attribution. For example, the jurors might have defensive attribution: “I’d never do that and I wouldn’t have been injured like this plaintiff.”
  • Gregory Cusimano discussed the role of morals, mores and beliefs in trial. He explains the “automatic decision making process” we all have. When basic moral values are offended jurors punish the wrongdoer. He recommends facts which remove plaintiff from the stereotype of someone trying to get rich and which make jurors empahathize with plaintiff while making the defendant look uncaring.
  • Paul Scepter says the more jurors are morally outraged, the more harm they perceive has been done and the more punishment they feel is necessary to counter that harm
  • Robyn Wishart writes that jurors come to court with their own life experiences which they use to interpret the evidence. We need to use images, exhibits to create a shared common experience and avoid different interpretations.
  • Randi McGinn avocates teaching through stories and gives examples of how to do that well.
  • John Romano covers “the sins of anti persuasion” such as overcomplicating the story, failing to make a point and over repetition.
  • William Bailey explains why storytelling is so powerful.
  • Mark Mandell outlines the power of framing and the importance of issues he calls “I just can’t get over” the fac that… issues in the case.
  • Mark Lanier discusses the need for us to set priorities in our lives and our work for proper life balance.
  • Rick Friedman discusses fear of losing created by comparing ourselves to others and why it is illogical to make such comparisons.
  • Gerry Spence discusses fear and the fear of failure which he argues are a gift by opening the gate to growth

This is an issue you should read, index and keep as a valuable summary of important principles of trial.

THOUGHTS ABOUT AVOIDING A 15 MINUTE DEFENSE JURY VERDICT

The Seattle Times reports that a King County jury reached a unanimous verdict for the defendant after a seven day personal injury  trial, taking only 15 minutes to reach a verdict.

Disclaimer: The only thing I know about this case is what I read in the newspaper so I am using this as an illustration and making assumptions in an effort to learn from this event.

The newspaper reports that plaintiff was a 51 year old woman who sued the city of Seattle asking damages for injuries suffered when the police handcuffed her after a hit and run incident. She had been arrested after two Seattle police officers responded to a report of a hit and run collision involving her company van and a  parked car. She was arrested and charged with hit and run of an unattended vehicle. She claimed during the arrest the police “yanked” her right arm behind her back causing excruciating pain and seriously damaging her right shoulder. She was a janitor and claimed that the injuries incapacitated her so that she could not mop, wax, vacuum, garden or make her bed. She testified that she needed help from her husband and daughter to do basic tasks almost every day. She claimed disability in her right shoulder, arm and hand.

According to the newspaper there were some significant problems with her case.  To start with, there was a patrol car video.  The video did not show her being handcuffed, but it did show her sitting calmly on the bumper of the patrol car and then being equally calm in the back of the car. She did not appear to be distressed or in pain.

In addition,  the plaintiff was born in Bosnia and had difficulty with English. But, apparently the most damaging part of the defense was a video taken of her by a private investigator hired by the city. The video showed the plaintiff driving, shopping, pulling open a glass door with her right injured hand and carrying packages in her right hand as well. She was videoed carrying numerous large bags in her right hand from a store to her car.

It is significant too, that her lawyer asked the jury for $1 million dollars which the jury took 15 minutes to reject and to reject her entire case.

Here, the plaintiff was suing the police for abuse. No matter what the publicity about police abuse there remains a sizeable percentage of jurors who generally believe the police can do no wrong and only guilty people get arrested.  They deserve  what they get in these juror’s minds. I think you start with a  difficult job in voir dire finding jurors who are not biased in these cases. The problem is you don’t have enough time to do a proper job.

Immigration is a hot stove issue in this country. We have a woman who wasn’t born here and doesn’t speak English well. That’s enough to light up a bias in  a number of jurors. This too, is something that needs to be discussed in  jury selection  and covered in your case in chief.

What about the video’s that were shown to the jury? Nothing  is  more damaging than a claim of  serious injury and photos immediately after the claimed injury, at the scene, which show otherwise. What are you going to believe, the physical evidence or  explanations? Here is a subject  that needs to be opened by the plaintiff in jury selection and covered in opening to inoculate against the jury reaction. But, on top  of that we have a private investigator videoing her doing things she claims she can’t do.

The fact is we have to deal with secret videos more often these days. The key is early discovery of their existence and the discovery deposition of the investigator. Next, we need to fully explore the issue in jury selection plus deal with it in opening by showing it yourself and inoculating against the drama of seeing for the first time. We need to show it to the plaintiff in direct and ask about it. It becomes a race to tell the  truth first with defendant. And, if a poor job is done in these regards, a request by the plaintiff for an amount large enough the jury finds it really inappropriate you get an emotional backlash from the jury.

So, based only on my description and without knowing the actual facts, we have a case of non fracture and what is essentially a soft tissue damage claim which drug  out for seven days. A woman who appears  to have been dramatically impeached by video and who doesn’t speak English well to explain it. A suit against the city and its police asking $1 million dollars. Tax payers on  the jury  and really difficult issues. These facts require really careful and extensive discovery, motions in  limine, a skillful voir dire and a carefully focused  trial. Even then the odds are not good for the plaintiff. I’m sorry about the result  and would assume this was a case most lawyers  would  have trouble winning.

GIVING CREDIT TO DAVID BALL

On April 18, 2015 I published an article from Don Keenan’s blog on short trials because I thought it had such a profound truth which I agreed with. Unfortunately, I gave the credit for the article to my friend Don when the author was my friend David Ball. So, I write this to correct my error and give credit to David where it belongs and my thanks to Don for publishing it. Sorry, David. Great article.