A FEW RANDOM THOUGHTS ABOUT TRIAL TACTICS

Here are a couple of thoughts about trial tactics:
FOCUS ON THE DEFENDANT – NOT THE PLAINTIFF. START THE STORY TALKING ABOUT THE DEFENDANT.

  • “Availability bias” jurors will begin filling in the blanks, asking themselves questions, and focus upon the behavior of the FIRST party discussed. They will construct their understanding of the case in the context of the defendant’s behavior and not focus on what the plaintiff did or should have done.
  • “Defensive attribution” If the facts are inconsistent with the jurors own ideas of what they would do or expect others to do they apply the “this couldn’t happen to me” or “I would never have done that” reaction. We need “good guy vs bad guy” because sympathy is a poor motivator. We need to tell a story where the conduct of the plaintiff is what the jurors themselves would have done and the story of the defendant causes them to form conclusions about what they would expect their doctor to do under the same circumstances.
PLAINTIFF’S SHOULD ALWAYS START BY ATTACKING THE DEFENDANT

  • Sequencing” means starting with defendant first, let jurors concentrate on that story, making up their own reasons and forming their own ideas about this person before talking about the plaintiff.

  • Jurors develop stories about what happened and look for evidence support their version of the story
  • Plaintiff’s have complete control over the jury’s first impression of the case since they go first in opening statement and that impression should be of the “evil” defendant
  • Consider putting the defendant on the stand first and cast them as the villain

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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