Today I want to share some random rules of plaintiff trial work that are not all connected, but, for me at least, have meaning. They include some of these ideas:
- Gerry Spence once shared with me the phrase “watchful waiting.” By that he meant the idea of calmly listening to another argue or make personal attacks on you and waiting patiently without interrupting before responding. And, when responding, doing so in a measured calm manner. Ernest Hemingway wrote the classic: Death in the Afternoon about bullfighting. The matador’s expression for this idea in bullfighting was “to watch them come.” The idea of developing the skill to watch the bull as he charges with no thought except to calmly see what he is doing and make the moves necessary to the maneuvers you have in mind. Hemmingway writes that to calmly watch the bull come is the most necessary and difficult thing in bullfighting. We need the same skill as trial lawyers.
- George Lakoff has pointed out, in his book The Political mind, that all trials are actually about values. He argues that a trial is really a morality play. Jurors decide issues based upon their values, their idea of doing the right thing and most, if not all, of that process is done subconsciously. Appeal to common values for good in your approach for trial. Show the importance of a plaintiff’s verdict beyond your client’s concerns and how it will benefit them.
- Frank Luntz in his classic book Words that Work, says we decide issues, form opinions and impressions based on how people look; we decide based on how people sound we decide based on how people are dressed. We decide based on their passion. Contrary to our law school teaching, it is not logic at work nor weighing the evidence that results in our impressions and decisions. It’s how we view the situation. There is a big difference between being fully aware of the impression we, our witnesses or our evidence is making from intellectually viewing it a logical fashion.
- Malcom Gladwell in his book Blink says 90 – 95% of our choices and decisions are made at an unconscious level by instinct. Think about that. Instead of approaching trial like an intellectual scholar relying upon jurors using logic and careful evaluation, accept the reality of how our human mind fuctions. Try your cases to the reality of the situation and not myths. The undenial truth is: a trial is a battle of impression and not logic
- Certainly there is truth to the concept of the primative brain controlling our mental evaluations and that survival is the most basic motivator of our primative brain. Furthermore, it operates at a subconscious level without our control. Research shows that if survival is not at stake the reptile brain goes into autopilot but as soon as survival is at stake the brain shifts into survival mode and nothing else matters. Therefore, if there is a perceived danger to the juror, his or her family or their community the survival instinct is involved. Safety increases survival chances. A jury verdict which promotes a change for safety promotes survival. Don Keenan likes to say that the justice system is a public safety system. An important question is how the defendant’s conduct is a threat to the juror if allowed to go unpunished.
- Rules are important because they relate to survival. When we know the rules we are able to navigate through dangerous situations. When we break the rules we endanger ourselves. When other people break the rules they endanger us too. That’s why conservatives and people generally think like a “strict father” – rules must be obeyed like them or not and there is a reward and punishment which must follow. For that reason it is also a common viewpoint that making people accountable for breaking rules acts to enforce them which, in turn, protect all of us. Rules are enforced by verdicts against wrongdoers who violate them. But, it is important to remember the only rule breaking that counts are those from wrong motives. All other “accidents” or ordinary “negligent” acts are forgiven and do not merit punishment. The most important issue is “why.” Why was the rule broken?
- The main point to keep in mind is that the question in the minds of the jurors as they wonder what the case is about, is not: helping your injured client out, sympathy or applying the evidence. The primary question in the minds of the jurors is: How will this affect me? What’s this case got to do with me or my family or my immediate community? Will what happens in this case impact me? Since that is their real concern you need to address it by showing the benefit of a plaintiff’s verdict on them, their family or their community. In non punitive damage cases there are many ways of doing this. Keep in mind the common values of most jurors: (1) They want to be part of something important. They want to make their jury service mean something (2) they have a need to do the right thing, as they see it with their value system (3) they want to feel good about their service and the result. Tie these motivators to their self centered motives and the concepts prevously discussed for the best way to try cases.