LESSONS LEARNED FROM TRIALS

# LESSONS LEARNED FROM TRIALS

Rick Friedman is one of the great plaintiff lawyers in this country. He recently demonstrated this truth by his verdict in federal court in Seattle a few days ago when he obtained a $5 Million compensatory and$16.5 million punitive verdict against Holland American Cruise lines for injuries to a passenger on a cruise. It’s not just the amount that’s impressive. It’s the facts he had to work with. The plaintiff was a 57 year old multimillionaire on an 8 month cruise who was hit by a sliding automatic door. The claim was a head injury but the passenger had continued with the cruise while engaging in full off ship activities. His claim was brain injury with headaches, difficulty concentrating and fatigue. There were a number of negative facts in the case for plaintiff who turned down \$1.5 million before verdict. What I’d like to share are my thoughts about issues involving the case that were the subject of discussion with Rick and other plaintiff lawyers in the area.

One of the jurors posted this on her social media account:

“Yep! The case was a personal injury suit where a man was hit in the head by an automatic sliding door while on a cruise ship. We determined that the cruise company had ample information that the doors had hit other people and they did nothing to correct the problem. The man, (a multi-millionaire from owning a precious metal trading company), has since stuffed a deficit in cognitive function, causing him to lose confidence and ability to run his business, forcing him to sell it. He has also, since the accident, become distant from friends and family, suffered from severe headaches, mood swings, and even pseudo seizures (non-epileptic seizures). No one the jury particularly liked him or his wife, which caused some trouble during deliberations, but we finally were able to put that aside and rule in favor of him.”

I think what is particularly significant is the comment: “No one the jury particularly liked him or his wife, which caused some trouble during deliberations, but we finally were able to put that aside and rule in favor of him.”

I think this is significant because we shouldn’t draw a conclusion verdicts like this can be simply explained by having likeable clients. In fact, we all know about defense verdicts where the jury really liked the plaintiff and expressed regret for a defense verdict they felt compelled to enter. What is significant about this juror’s comment is that in spite of not liking the clients she joined a very substantial punitive damage verdict in favor of a rich, unsympathetic man with questionable injuries. Note that there was evidence of sixteen previous injury producing accidents like this one.

I think this is an illustration of the truth that it’s not primarily sympathy or likeability of a plaintiff that drives a verdict like this, but rather it is an underlying issue that resonates with jurors and their values plus their significant past experiences which they see as having a personal impact on them or their families or community. All trials like this ultimately are determined by a juror’s subconscious decision making process which is self-centered. The subconscious question being asked is “How will this case and its outcome affect me, my family or our community of personal concern?” The primitive brain’s automatic reaction to threats of survivorship are involved when there are underlying issues that connect. Our subconscious mind responds to facts which connect to our value system and significant past experiences.

When a result like this happens there is usually anger on the part of the jury. That anger flows from a juror’s subconscious conclusion there was a significant betrayal of trust. When that happens, all you need is a minimum of a “neutral” plaintiff. That is, one who does not generate a negative impression to the point it influences decision making.

Unquestionably, it enhances the verdict to have a plaintiff who makes a great impression. It is even more important to have a disagreeable defense lawyer who creates a negative jury reaction because that reinforces the impression the defendant was a wrongdoer who not only betrayed a trust but also hasn’t learned a lesson from it and remains arrogant. People like that need to be punished. Let’s remember a trial is really a morality play of good vs evil in the subconscious minds of jurors. Good is to be rewarded and evil is to be punished. Trials are struggles of impression and not logic.

One other important point: It takes a great trial lawyer like Rick to “get out of the way” when you have driving issues. Most lawyers in this kind of case, make the mistake of over trying the case both on liability and damages. It is a mistake not to let the jury be the one to exercise their anger and draw their conclusions in a case like this. Great lawyers like Rick understand that and apply the rule “less is more.”

This case also illustrates helpful information about cross examination. The defense produced a number of expert witnesses to support their case Rick had to deal with. He did so with a broad approach having in mind jury impression of the witness. I think this is important to consider.

It seems to me there are really two ways to approach cross examination generally and experts in particular: (1) a frontal assault on the specific facts asserted asserting they are wrong and (2) undermining the credibility and trustworthiness of the witness as unreliable. In both cases the most important truth to keep in mind is that the jurors are not listening and evaluating the testimony from a logical examination of the accuracy of what is being testified. Instead, they are subconsciously drawing conclusions and forming general impressions of overall witness credibility, trustworthiness and likeability. This all is being filtered through their already formed impressions about the issues in the case. They tend to ignore what conflicts and re-interpret it to fit their already created impressions.

Consequently, I believe the primary goal of cross examination is to create an unfavorable impression of the credibility, trustworthiness and likeability of the witness. I think you cross examine on technical subjects testified to by the expert only to the extent they impact impression. That’s why you only deal with very major points of conflicting testimony and you consider carefully your demeanor in doing so – soft cross or something else?

In general, jurors, at the start of the trial, began immediately to form subconscious impressions. They unconsciously form conclusions early in the case which they continue to hold unless there are significant events that alter the impression. Otherwise, they filter the evidence and instructions through their general impressions by unconsciously ignoring or interpreting or receiving evidence as consistent with what they already have concluded.

Consequently, I think cross examination has to be focused on juror impression of the witness rather than primarily the message. I think you should not, except in rare cases, bore the jury with cross examination from literature or boring details only the lawyer and witness care about. Your goal is to undermine the credibility, trustworthiness and likeability of the witness, not primarily with technical conflicts, but instead by collateral attack to show bias, arrogance, failure to prepare and the like. The jurors will filter out conflicts involving the technical issues, but will register general impressions. Kill the messenger and you kill the message – focus on the messenger. I think you approach cross examination from the standpoint of primarily attacking witness impression and not attacking the details of the message.

There is a lot to learn about trial strategy and cases like this are opportunities to do so.

## One thought on “LESSONS LEARNED FROM TRIALS”

1. Perhaps you should have waited to see that the Judge threw the whole verdict out based on Plaintiff’s failure to produce his email that he was ordered to produce (seems to me, one of the nation’s greatest lawyers would know to tell his client not to do that and to preserve evidence). Sure, any dolt can get a high verdict when not playing by the rules. And btw, the social media quote by an unnamed juror appears fabricated. Which juror was it? None of their FB accounts have any such thing posted. Pure fiction.

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