We know research has shown the majority of jurors want to feel their verdict is a “meaningful verdict.” That means a verdict which they will be proud of when they go home. They also want to do “the right thing” and be involved in a trial that has importance, so their time spent was not wasted. We should address these motivations in argument by making the case more important than simply resolving the issues involving the two sides in the trial.
There are legal restrictions about what we are allowed to argue about the jury motivators. For example, in Washington, we cannot argue punitive punishment since Washington is one of five states that prohibit punitive damages in all civil actions. That also restricts other concepts connected to punitive arguments. We are not allowed, in Washington, to make a “golden rule” argument. As explained in Miller v. Kenny, 325 P.3d 278 (Wash. Ct. App. 2014): “A golden rule argument urges jurors to imagine themselves in the position of a party and to grant that party the relief they would wish to have for themselves.” Washington also does not allow “send a message” arguments to the jury. In Wuth v. Lab. Corp. of Am., 189 Wn. App. 660 (2015) the court held that it was improper to argue that damages should be awarded to make sure “‘[this] … never happen[s] again.” On the other hand, a generalized argument to the jury about the public policies underlying the tort system, which include both compensation and deterrence would be appropriate.
However, we can and should structure our arguments to communicate to the jury their power and importance of their verdict. We do that by making the case more than just about the plaintiff and defendant involved in the case. We can remind the jurors they have been given the power to be “voice and conscience” of the community. That’s because by their verdict they will set community standards and speak for the community. What they do has meaning beyond just the participants in the case. We are allowed to make that argument. In Miller v Kenny, the court held “Appeals for a jury to act as a conscience of the community are not impermissible, unless specifically designed to inflame the jury.
The great plaintiff attorney, Moe Levine, always elevated the juror’s role beyond just the case at hand. He told jurors they were not simply twelve individuals with opinions. They were instead the collective conscience of the community. He told them” “ Your verdict speaks with one voice. Jurors, you are the voice of the community. When you speak, you speak for the community. Your verdict will speak with one voice. Your decision does not speak merely for yourself but speaks for community justice.”
EXAMPLE OF ARGUMENT
What follows is an illustration of argument in a civil damage case to communicate these concepts to the jury. It will have to be revised to comply with what is allowed in your jurisdiction but is an example of the ideas to consider using:
I think many of us too often feel there is no justice in our lives because the rich win, the poor are powerless and the rest of us have little control over the laws we have to follow. As a result, we think of ourselves as victims of the established powers. We doubt our government and we doubt the justice system. But today you have been given enormous power over setting standards, because you are the law. You have the power to set community standards of justice in situations like this. Today you are the law. Not government or some law book or some marble statue, but you. That’s because you twelve have been given the power, by your verdict to accomplish important justice by deciding the facts that determine what duties of care are expected. You also have been given the power to determine what amount of money equals the harm inflicted.
Today you are not simply twelve individuals with personal opinions. You are instead the collective conscience of the community. Your verdict will speak with one voice and empowered to be the voice of the community. When you speak, your verdict will not speak merely for yourself but will be a collective voice about what is community justice. Our justice system is intended to both fairly compensate for harm inflicted by the actions of others as well as serve as a standard of care for everyone in the community to observe.
Juries like you are given the right to determine appropriate justice based upon their finding the true facts and applying the law. From there they are allowed to arrive at verdict which sets the standard of conduct they think is fair and just. The remedy for the harm, expressed in their verdict, reflects t the harm done in money because it is the only remedy available in civil cases like this one. In criminal cases, justice might be a traffic fine or in a robbery, prison time. In a civil case like this one, a distracted driver, might cause a minor rear ear collision by their negligent mistake. The juries remedy should reflect those facts. However, in a case where a drug company sells medicine with dangerous side effects it ignores for profit, it has betrayed their duty of safety to patients for profit. In both cases the jury, by their verdict as the voice and conscience of the community, sets the standards of conduct expected and determines the appropriate amount of money to equal the facts they determine and the harm inflicted.
As a result, your role isn’t just about the people involved in the case. Not only will your verdict impact them, but your verdict will also determine what the standard is for justice is for our society. That’s because you have been given the power to be the public guardian and conscience for the community in cases like this. We know in communist countries like Russia and China, trials are held in secret. The doors are locked and the public isn’t allowed to attend. News reporters and the media are not allowed to watch or report what happens in the trials. But look at this courtroom. There are benches for the public sit on and observe trials. In fact, the public has a constitutional right to attend trials like this one. Why? Because in our country, the jury has been given the enormous power to decide cases, set the community standards of what is expected in the exercise of safety and fix the just remedy for harm inflicted.
You, the jury, have been given the power to decide the issues in this case. You have been given the power to be the guardian of community safety and set the remedy in money that equals the harm done wrongfully. What you decide in cases like this is not just important to the people involved but to the public as the community measurement of appropriate justice.
The role you have is very important. As a result be proud of your verdict, whatever it is you think right. Render a verdict which will permit you to leave this courtroom with the feeling you have participated in the administration of justice for the parties and your community. Your verdict should be one you can announce with pride. Your verdict should be one that years from now, when you reflect on your jury service, you have a feeling of pride that you were part of something very important for both the parties involved as well as the society you live in.
While you may not have the benefit of punitive damage arguments or advocating the jury send a message by their verdict, you can emphasize the power of the jury to do something more important that deciding a case for the parties involved. The power to set standards of care has been given to them which serves as a deterrence as well.