THE QUESTION OF “WHY?” IS A WHOLE LOT MORE IMPORTANT THAN “WHAT HAPPENED?”

I have written in this blog on many occasions about  the scientific research that the motive and reasons behind the conduct which caused the injury to your client is far more important than the facts about the negligent conduct. Proving the negligence is not the same thing as going behind the conduct and proving why the conduct took place. The doctor in a hurry is not the same case as the doctor failed to meet the standard of care in doing surgery. The question of why something happened is far more significant than the proof of the negligent actions itself.

Proof of wrong motives and evil intent are what really drive the verdict in a plaintiffs injury case. This is particularly true in malpractice cases. This subject has been discussed in one of my favorite sources of information The Jury Expert. www.thejuryexpert.com. The last publication featured an article “if it feels bad to me, it’s wrong for you: the role of emotions in evaluating harmful acts”  http://www.thejuryexpert.com/2014/08/if-it-feels-bad-to-me-its-wrong-for-you-the-role-of-emotions-in-evaluating-harmful-acts/ Their research and conclusions concur with the concept I advocate. In general, the article points out, there is a remarkable body of evidence which indicates that our minds are divided between reason and emotion, which together shape the way we think and behave. On a rational basis, all else being equal, we tend to favor whatever course of action leads to the greatest amount of benefit in the long run. When emotions are guiding our thinking, we are more likely to utilize a value or moral standard in our thinking and decisions. The two must both be in balance together for decision making.

Studies indicate that when we are judging other people’s conduct we tend to imagine what it would feel like to perform the behavior ourselves. Our reviewing  the conduct as if we were involved produces a reaction.  In some cases, this creates a feeling of aversion which dictates a judgment that the behavior was wrong: “if it feels bad to me to do it, it’s wrong for you to do it.” This then becomes the measuring stick in our minds for evaluating the conduct  of other  people.

This raises questions regarding how attorneys attempt to influence jurors decisions. The normal inclination is to focus attention on the victims injuries and damages. Lawyers have traditionally focused attention upon the innocent victim  or the injured plaintiff in an effort to create empathy. However research indicates that this is not the strongest motivator. The dominant factor in motivating the average juror is focus upon the defendants actions themselves and whether the jurors would feel justified in performing those actions themselves.

Furthermore, focusing upon injury for sympathy is more likely to have a negative affect upon the jurors. They are already programed to believe the message of tort reform and are prepared to guard against “fast talking lawyers” peddling sympathy. Research would indicate that: “in the case presentation process, sympathy and victim –focus  backfires.” On the other hand, focusing upon the defendant’s actions and especially wrong conduct or motives explaining them, creates a story in the jurors minds involving the question of whether they would have  done the same thing. The article says: “Adding in the current study results, there are more reasons to say “no” to the old-style of (plaintiff attorney) presentation (of focusing upon injuries and sympathy).”

There is an understandable reluctance to put the defendant at the center of the story. However, since the key factor is the jurors contemplation of whether they would perform the same behavior themselves, plaintiffs should set the stage for jurors to try on that decision for themselves. If jurors believe they would never have acted as the defendant did, and if that action would feel wrong to them, they’ll be primed to condemn it and to believe that it had compensable consequences. This also stimulates a duty to punish wrongs which most people, conservatives in particular, unconsciously feel.

Furthermore,  there an  added  benefit from focusing upon the defendant that studies show results from  this  approach. When we are aware there has been an injury or accident, people tend to review stories  of conduct looking for reasons why it should not  have happened or that it was  not an accident they would have allowed  happen. We should always start our case with the defendant’s conduct and not the plaintiff’s. If the story starts  with the plaintiff, the jurors immediately  began the questioning process about plaintiff’s actions. When it starts with  the defendant’s  conduct the same process happens which is beneficial to plaintiff.

As the article points out this approach has a “what would you do?” aspect to it which we cannot embrace directly without violating the “Golden rule” prohibition. However,  centering the story on the decision-making and correctness on the part of the defendant serves as an invitation for the jurors to assume that rule mentally. As the article points out: “in addition, in voir dire, attorneys have a legitimate right to ask about relevant attitudes and experiences which inquiries get the jurors started thinking about the actions from their own perspective.”

We need to start our case in voir dire talking about the motives and  wrong doing of the defendant’s conduct. All of our  cases  should have such a theme: “the case of the sleepy truck driver, the case of  doctor in a hurry or  the case of the cell phone collision” but one that focuses on motive and wrongful conduct. The article says: “the bottom line is that as the research on moral judgment and a number of related fields continues to blossom, practical litigators need to keep pace. That might mean that the death of the idea that there is a time honored, tried-and-true way to try cases” by focusing on the plaintiff’s injuries and damages as a motivator for a jury verdictl

BRIEF THOUGHTS ABOUT JURY COMMUNICATION

For many years jury consultants  Starr & Associates,  http://starrandassociates.net/ published  Insights a newsletter with information about communication with jurors. I saved an article from 1991 entitled: “television has changed the way jurors learn.” The points that were made then are still valid today.

The article pointed out that jurors learn the great majority  of their information from TV. Roughly 80% of all Americans get 90% of their information from television. The problem is that communication in the court room and communication through television are vastly different and in fact in some cases conflicting. The differences are illustrated by the examples of trials on  television where the examination of the witness is two or three minutes long and final argument is about the same length. A very different situation from the  courtroom where there are long delays without anything happening involving the jurors and the information is lengthy, complex and boring.

The article says: “television has four primary axioms of communication: brevity, simplicity, entertainment and visualization. An attorney who applies these axioms to the court room will be a more effective teacher and thus more persuasive.” It goes  on to discuss these.

Brevity: Most news stories last no longer than 25 seconds without interruption and the news broadcast itself is interrupted every 7 to 9 minutes with a commercial break. This rhythm changes the attention span of the TV watcher. As noted in the article by contrast the Lincoln – Douglas debates lasted, on average, seven hours per debate. Lawyers like Clarence Darrow would argue for as much as eight or more hours to a jury. Today’s jurors do not tolerate repetition and boredom on the part of the lawyer and reflect this by turning off as well as by adverse verdicts against the offender.

Simplicity:  Complex issues and big words result in a perplexed receiver of the information. If it happens on television they change the stations. In the courtroom they simply stop listening and begin thinking about other things. Furthermore almost everything on television is already reduced to its most basic form without argument or the need to think about it. Television results in people who don’t want to explore issues in depth. They want the bottom line and they wanted simply as well as briefly.

Entertainment: When a program is dull on television people stop watching and change channels. They expect entertainment. The television journalist looks for compelling story lines and visuals that are entertaining and captivating. Networks are aware of pace and tempo as well as action and suspense. The presentation needs to be entertaining if  you want the jurors  to listen.

Visualization: Television has taught the viewer to expect  proof and not have to take anyone’s word for it. They want pictures and they want document proof. That’s what they get on television and they expect it  in court. That’s why documents, visuals and compelling witnesses are so critical.

The publication also notes that their findings on survey which showed that as jurors people have certain expectations about how to establish facts in a lawsuit. It turns out that they want it  in “black-and-white.”  For example, 94% expected proof to be by documents and eye witnesses. 79% expected the proof to be by pictures or hard evidence.

Let’s consider some of the other basics of communication. We know that communication is not what we say, but rather what is heard. President Franklin Roosevelt sent ambassador Winant to meet with Russia’s Molotov during World War II. In presenting Roosevelt’s message he opened with a few words of his own. He said he was going to “talk turkey on this issue.” Molotov interrupted with: “Turkey? What does Turkey have to do with the Baltic states?” The ambassador tried to explain patiently that “talking turkey” was merely an American expression meaning to talk seriously, but the suspicious Molotov could not or would not understand, and the meeting ended without any useful discussion of the presidents message. The ambassador never regained Roosevelt’s confidence after that. Communication is not what is said, it  is what is heard. We need to employ the most fundamental principle of advocacy which is simplicity and clarity and brevity.

The use of metaphors or analogies is often a persuasive communication tool. In a trial which was then America’s longest civil trial, the issue involved whether or not dioxin which had spilled from a railroad car in Belleville Illinois was the cause of injury to people in the nearby town. Closing arguments took 6 1/2 days. The plaintiffs asked for $35 million in actual damages and 100 million in punitive damages.

The defense was simple and brief: there was not enough dioxin to hurt anyone and no one was really hurt. The defense used this as their key point about this issue during argument  by saying:  “ladies and gentlemen of the jury, if you had one ticket and sat in one seat in  Bush Stadium that is one part per 50,000. So, what is one part per trillion? Well, one part per trillion would be if you had one seat in 20 million Bush stadiums. That’s one part per trillion.”

There was a defense verdict. When jurors were interviewed afterwards they said the one thing they remembered from the arguments was the comparison involving the baseball stadium that proved to us there wasn’t enough dioxin to hurt anyone. Analogies and metaphors are powerful. 

To remind me of  these communication principles I prepared a one page sheet which I kept in front of me during trial. There is an example following, but I would also add to this sheet three principles or themes I wanted to emphasize throughout the trial. Striving to put on another single letter size sheet all of  the themes, defenses and issues in your case is a great way  to force you to see the case as a big picture and simplify the issues.

BE BRIEF, BE SIMPLE & GET TO THE POINT

1.       Be Calm -   Stay calm & confident

2.    Be Slow  -  Pace & timing: “One thought per juror”

3.   Be Nice    -  Always professionally

David’s advice to Solomon:

“Be strong and courageous, and do the work. Do not be afraid or discouraged”     Chron 28:20

   

 

         

 

 

 

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  1. 1.       Be Calm -   Stay calm & confident
  2. 2.    Be Slow  -  Pace & timing: “One thought per juror”
  3. 3.     Be Nice    -  Always professionally

STAND STRAIGHT           SLOW DOWN           SMILE

SWIMMING WITH THE SHARKS

In 1981 in the American Journal of Nursing published an article by Voltaire Cousteau he titled: “How to Swim with the sharks: A primer.” The author died in Paris in 1812. Apparently he was an ancestor of the modern Cousteau and this article was written for the benefit of sponge divers. It was previously translated from French and reprinted in 1973 in a medical journal.

While  it was written for a different audience I kept it because it seemed to me to be a wonderful set of instructions for plaintiff lawyers dealing with the typical defense lawyer.

The author begins by saying: “swimming with sharks is like any other skill: it cannot be learned from books alone; but novice must practice in order to develop the skill. The following rules simply set forth the fundamental principles which, if followed, will make it possible to survive while becoming expert through practice”  So, here is a summary of the rules.

  1. Rule one. Assume unidentified fish are sharks. Not all sharks look like sharks, and some fish which are not sharks sometimes act like sharks.
  2. Rule two. Do not bleed. It is a cardinal principle that if you are injured  either by accident or by intent you must not bleed. Experience shows that bleeding prompts an even more aggressive attack. Diligent practice, will permit the experienced minor to sustain a serious laceration without bleeding  and without even exhibiting any loss of composure. The shark will be confused as to whether or not his attack has injured you, and confusion is to the swimmers advantage.
  3. Rule three. Counter any aggression promptly. Sharks rarely attack a swimmer without warning. Usually there is some tentative exploratory action.The appropriate counter move is a sharp blow to the nose. Almost invariably this will prevent a full scale attack, for it makes it clear that you understand the sharks intentions and are prepared to use whatever force is necessary to repel his aggressive actions. Some swimmers mistakenly believe that an ingratiating  attitude will dispel an attack under these circumstances. This is not correct; such a response provokes a shark attack. Those who hold this erroneous view can usually be identified by their missing limb.
  4. Rule four. Get out if someone else is bleeding. If another swimmer has been injured and is bleeding get out of the water promptly. The presence of blood and thrashing of water will elicit aggressive behavior even in the most docile of sharks. They may attack uninvolved swimmers. No useful purpose is served in attempting to rescue the injured swimmer. He either will or will not survive the attack and your intervention cannot protect him once blood has been shed.
  5. Rule five. Use anticipatory retaliation. A constant danger to the skilled swimmer is that the sharks will forget that he is skilled and may attack again. Some sharks have notoriously poor memories in this regard. This memory loss can be prevented by a program of anticipatory retaliation. The procedure may need to be repeated frequently with forgetful sharks and may be needed to be done only once for other sharks. The procedure is essentially the same as described for – a sharp blow to the nose. Here, however, the blow was unexpected and serves to remind the shark that you are both alert and unafraid.
  6. Rule six. Disorganized and organized attacks. Usually sharks are sufficiently self-centered that they do not act in concert against a swimmer. However, upon occasion the sharks make a coordinated attack upon a swimmer. The proper strategy is diversion. Sharks can be diverted from their organized attack in one of two ways. First sharks as a group are usually prone to internal dissension. The experience swimmer can divert an organized attack by introducing something, often something minor or trivial, which sets the sharks to fighting among themselves. A second mechanism of diversion is to introduce something which so enrages the members of the group that they begin to lash out in all directions, even attacking inanimate objects in their fury. It is scarcely necessary to state that it is unethical for a swimmer under attack by a group of sharks to  divert them to another swimmer. It is, however, common to see this done by novice swimmers and by sharks when they fall under concerted attack.

Now, I ask you, if you reflect on trials against many defense lawyers don’t each of these rules apply to situations you and I have  encountered. The rules are valid for us. I particularly like the rule that says trying to defend against an attack by ingratiating  behavior results in the loss of a limb. This should  be required reading for all plaintiff’s lawyers in my view.