Here are some thoughts about subjects relating to juries. I begin with some examples of themes or framing of issues from actual opening statements from my cases. The goal here is to use language which will convey meaning.  Perhaps something here will stimulate your thinking about a case you have.

School liability

In this case a school physical education teacher allowed children to leave the gym and go on a run off of school property and return without supervision. A child was struck by a car and seriously injured.

  • This case is all about a school that gambled with the safety of their students and lost

Guard rail injury

In this case the city had installed a guard rail along a street but did not bury the end. Instead it was left pointing at the road at the same level as the guard rail. The vehicle deviated from the road, hit the end of the guard rail. It went through the vehicle, striking the driver and causing serious injuries.

  • This is a case about a city that left a spear pointing towards the road when it should have been guarding against injuries to drivers

These are some phrases and proverbs that have been used in cases to emphasize a particular issue of liability.

  • What does the phrase: “It’s better to be safe than sorry” mean to you?
  • What does the phrase “If the job is worth doing, it is worth doing right” mean to you?
  • What does the phrase “Penny wise and pound foolish” mean to you?
  • What does the phrase “A chain is only as strong as its weakest link” mean to you?
  • Do you agree with the idea that “an ounce of prevention is worth a pound of cure?”

These are some examples of phrases framed in a way to emphasize that actions merely a mistake but something more serious.

  • The company did this, which he knew was dangerous and knew it would hurt people, but did it anyway.
  • The doctor did this, which he knew was dangerous, but he wanted to practice the surgery because he was still learning
  • the company knew that if the cut cost by cutting back on safety that workers were going to get hurt, but it did it anyway.

Note that all of these phrases are a story of betrayal. When we say “they knew it was dangerous and would hurt people, but they did it anyway, we are telling a story of betrayal. It is betrayal and not mere negligence that motivates jurors to find in favor of the plaintiff.

Here are some quotes from an opening statement in a medical malpractice case involving injuries to a child. They are deliberately framed in strong language to emphasize that this was not an understandable mistake, but a substantial breach of good care for the wrong reasons.

  • This case is about two heart surgeons at the Children’s Hospital here in Seattle that failed in a horrendous way to follow accepted medical care that left a four your old little girl with severe brain damage. And it’s about how neither of the two doctors, nor the hospital they work for, want to accept the financial consequences for their screw up. Instead, they want to dump it onto the poor child’s parents.
  • Now let’s talk a little bit about how the two doctors screwed things up and the life they destroyed in the process.
  • Because of the brain damage Sally will essentially spend the rest of her life in a severely retarded state requiring 24 hours a day care. Not only did the doctors violation of good medical care destroy her life, it destroyed the lives of the entire family

Lastly, we know that the road to bad verdicts is paved with attorneys who relied upon logic to convince the jury. Without a story with an appeal to emotion, the attempt is counterproductive. We can evaluate the fault by having the jurors consider these three questions:

  1. How likely was it that the act or omission would hurt somebody?
  2. How much harm could it have caused?
  3. How much harm could it cause in other similar situations?

To summarize all of this, we know that to appeal to the jury we need to look for the moral imperative: the story of a wrong that needs to be set right. In that process we need to never be satisfied with “what” and to look for the “why” motive is the key to understanding people’s conduct and the motivator for plaintiffs verdict when it involves betrayal. Perhaps something here will be useful in that regard.

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Robert Hirschhorn is a jury consultant our firm has employed in the past. He has suggested useful ideas about jury selection. One of his recommendations was to ask the jury  these questions, particularly where time is limited for jury selection:

  1. Describe yourself in a few words
  2. Tell us several names of people you admire
  3. Name three people you do not admire or respect
  4. If you or a loved one were injured by negligence would you sue  for the injuries?

Written questions for jurors to fill out is often suggested as a helpful device. Hirschhorn has proposed using a brief questionnaire with a limited number of questions using carbon copy attachments to allow immediate distribution. This would facilitate the jury panel  completing the form and promptly distributing it  to the lawyers for jury selection.

He suggests that it is not only important to watch out for and search for the “stealth juror,” that is a juror with an agenda that is deliberately concealed during jury selection, as well as for the “Andy Warhol” juror. That’s a juror who has a concealed ambition for 15 minutes of personal fame by their jury verdict.

He recommends looking for companies that can provide social media searching while the jury selection process is taking place. However, in doing so, one should be cautious about violating local court rules or concepts of ethical conduct as viewed by some judges.

He likes to have the intensity of jury feelings framed on a scale of numbers as for example: “On a scale of 0 to 10, with zero being low, how do you feel about – –?”

He recommends framing issues around generally accepted values which would include some of these:

  • Doing the right thing
  • Guarding the truth
  • Following the law
  • Hard work and perseverance will eventually triumph
  • Honesty will eventually be rewarded
  • Americans always come to the aid of the week and the truthful so justice will win in the end
  • Simple and ordinary working men and women possess a special ability to recognize the truth

He reminds lawyers that a negative statement in a frame registers with the unconscious mind without the negative denial. Saying for example: “I am not a crook.” Registers with the unconscious mind as “I am a crook.” The response should not be a denial of the original statement. For example, instead of denying a claim that President Obama was a Muslim, the response should be an affirmative:  “President Obama is a Christian.” In addition, he notes that reward is a less appealing claim than avoiding loss. Framing and injury in terms of loss rather than in terms of reward for justice is more appealing.

His observation is that generally we should beware of people who have had the same injury experience as our client. They often have learned how to cope with the problem or found that the problem got better over time or resent the fact your client may be paid when they weren’t or even that they feel their injury is a lot worse than your clients.

He correctly observes that a lawyer is fully prepared for trial if they can sell someone what their case is about in one minute.

These are all suggestions worth considering.

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Dr. Frank Luntz is a nationally known communication expert and an adviser to the Republican Party.  His book Words that Work was an encyclopedia of the importance oof framing and the words we used to present issues. His book Win: The Key Principles to Take Your Business From Ordinary to Extraordinary also has communication principles which are applicable to us in our trial work. Here are  a few of them for your consideration:

  • adversity:  Notre Dame football coach Lou Holtz has said “I don’t think God put us on this earth to be ordinary. Life is 10% what happens to you and 90% how you respond to life. Show me someone who has done something worthwhile and I’ll show you someone who has overcome adversity.” He says that it’s up to you and not someone else because  “remember most people don’t care about your problems, and the rest are glad you have them.”
  • First  words impressions: The first words you speak are a large part of the first impression people have. However, you only have a few precious seconds to make that impression by the words you choose. For example, “it was the best of times, it was the worst of times” and “I’m dreaming of a white Christmas.” These words are powerful, concise, and visual statements that grab your attention. In choosing the opening words, when we start with facts or figures everybody agrees upon they are attention getting.  The words or  phrases we choose breakthrough the distraction and grab the attention immediately. Second, make sure you a enumerate plainly. It’s important to enumerate your points as you make them. This accomplishes two objectives. First, it builds your credibility and second, it holds your audience’s attention as a way to hear your next point.
  • Confidence  Successful people demonstrate confidence in themselves and in the product they are selling. Their message is focused on results and solutions to problems that need solving. There is always a clear call to action at the end for what you want them to do.
  • Enthusiasm  Enthusiasm is important, but don’t mistake volume for enthusiasm. Shouting, out of control behavior  and  aggressive demeanor do not demonstrate passion or enthusiasm. Nobody wants to be yelled at, even when they agree with you. People are turned off by aggressive or dramatic behavior. The most passionate and persuasive people speak with softness when it matters the most. Remember passion and clarity must go hand-in-hand. Clear, concise communication will instill more passion than confusing technical terms.
  • Listening  Be a good listener. Don’t look away. Don’t fold your arms. Looking at your watch is rude. Maintain constant eye contact until the speaker has finished speaking. Be people centered: I’m listening; I hear you; I get it; I respect you; you are in control; you are the one who must decide.
  • Yield control with a positive statement. Address people’s fears in a positive way with the phrase “No one knows better than you.”  For example “No one knows how to spend your money better than you”  or “No one knows what’s right for your family better than you” or “No one knows how you should live your life better than you.”
  • Words of principles  use language that demonstrates principles and values people agree about. These are powerful words of common value everyone agrees upon. Use them in support of your position:
  1.  “accountability”
  2. “strict standards”
  3. “moral compass”
  4. “social responsibility”
  5. “objective and unbiased”
  6. “uncompromising integrity”
  7. “the simple truth”
  8. “say what you mean and mean what you say”

When we realize the overwhelming importance of unconscious impression over rational and intellectual reasoning, these ideas are of particular significance. If we communicate from primarily an intellectual and logical standpoint we will too often wonder “what happened” when the verdict is returned. Focus on rational analysis and then communicate with the focus on the proven process of almost all decision making: the unconscious mind impressions.

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