In a recent auto collision case the defendant admitted liability. There was no dispute that the plaintiff had very serious injuries and that there was substantial economic loss. The defense lawyer in argument suggested a specific minimum dollar verdicts for the consortium claims and a specific amount for the injured person. The defense figure was about half of the plaintiff’s figure. You would consider the defense numbers a fixed floor and the jury likely to bring in a verdict in the middle of the two numbers. Instead, the jury gave no money at all on one consortium claim and a very small percentage of what the defense lawyer suggested on the other. They also appeared to ignore the defense suggestion for the verdict for plaintiff. Why would such an unexpected result happen? In post trial interviews with some of the jurors it became obvious there was at least one juror who would have given no money at all, others talked about not making the plaintiff rich and treating the defense figures as unimportant to them. It is clear from the jury interviews that there were people on the jury who, at least in part, thought like a tea party member, were ultra conservative and at least one juror who tended towards jury nullification by ignoring the law given by the court.
With the dramatic change in the economy and the change in political thinking in this country, we have more people on our jury panel who share the same kind of thinking. In some cases, jurors will not speak up or admit how they feel. They even mislead about their attitudes by their answers. They have an axe to grind or are just unwilling to admit to their biased viewpoints. We also have more people who have a very conservative outlook. So what do we do about this and how to we reach the conservative juror?
Let’s start with the basics. What drives juror’s decisions are primarily these (1) significant life experiences that have influenced their outlook on a subject (2) deeply held value systems in which some things are far more important than others and (3) their overall impression of the case as it relates to the issues, the witnesses, judge and lawyers. These three factors will trump the evidence they are presented and the law the judge gives them. Presenting your client’s case as consistent with life experiences and values of the jurors plus creating an impression that motivates the outcome you want is the solution.
We know that most conservatives put great weight on the sanctity of human life and human dignity. When the client’s story is presented in that frame jurors relate. We know there is a strong belief in accepting responsibility and being accountable for the harm done. Paying what you owe is something these jurors think is right. These and other basic conservative viewpoints should be used to your favor
It begins in jury selection. For example “What does accountability mean to you?” “Is that an important idea?” “Why?” We need to address tort reform head on. “Have you heard about jury verdicts in the millions that you felt been unreasonable?” “How do you feel about that?” There is any number of questions you should ask. They should include life experiences. “Have you had any experience in your life that you think might help you decide this case Inquiry about values is also an area for you to ask about. “How important is family to you?” “Why?”
Then there is issue of how we conduct the jury selection. We should consider written questions for the jury panel to fill out. We ought to consider checking the social networking of the panel – Facebook etc. In questioning the jurors I believe in the Spence College method. I’ve written about this before, but essentially one has to first share information with the jury about yourself before you can expect them to share with you. We need to get the jurors talking by discussion and not questioning. We need to listen carefully to what they say. We need to accept what they say and not argue with them. We need to demonstrate an openness and honesty to them.
If during this process you discover jurors who simply should not be on the jury you need to be prepared to challenge them for cause. This should be done in an appropriate way letting the challenged juror know you respect their view but this is not a case for them.
Watch for the silent jurors who say little or nothing. Find out if they have an agenda by asking them questions.
With the conservative juror, you need to really hit hard their following the law whether they agree with it or not. This is an important area to not only have them committed to following the court instructions but looking for jury nullification jurors. This also relates to the duty to consider all elements of damages and apply damage law as given by the court.
Jury selection today requires planning. We are limited in time so it also involves an agenda to focus on the key things. Applying some of these concepts may help you in your next trial.