THE CHALLENGE OF JURY TRIALS
I’ve been working up ideas for a trial the judicial system keeps pushing ahead each time we get close to the date for starting it. This has given me more time than normal to think about the theme and the approach to use. My research has involved looking at what information is available on the Internet. Based past research I think one of the more informative blogs helpful to plaintiff trial lawyers is that of Howard Nations a gifted trial lawyer I’ve known for many years: http://http://www.howardnations.com/overcomingjurybias/overcoming.html Howard publishes a virtual encyclopedia of information on all subjects relating to plaintiff trial work. I found his post about twelve methods to cope with jury bias informative and helpful. Here is an idea Howard writes about which I’ve posted about as well here. The concept re framing an idea or concept.
My friend David Clark Des Moines jury consultant and people who were trained at the Spence Trial College would probably refer to this as a technique of first “joining the tribe” to gain trust and then showing how your case is justified. Nations describes the steps in setting aside a belief and building a new one in a four stage process:
1. Acknowledge the pre existing belief and justify it. In a malpractice case one might say that you, and you assume most of the jury, believe doctors caring professionals who know what they are doing. Most doctors are careful and safety minded.
2. Link yourself to the pre existing belief. Nations suggests something like saying you have a doctor you trust and who is caring as well as careful. I think many of us who have been involved at the Spence College would combine these two steps with a personal experience or story about caring and careful doctors with the jury belief about the same, but it is a key step.
3. Link the client to the pre existing belief. Nations says you should say something to link your client to the same belief. Perhaps to say: “Mary and John believed the same thing about their doctor. They believed she was a a caring careful physician they could trust with their pregnancy.
4. Use this link to the belief to build a temporary belief system that will last through the trial. Nations then suggest you indicate that while the client was justified in having this belief, in this particular case the doctor deviated from what was expected and was negligent this time.
I agree with the general concept about showing you share the the commonly accepted attitude the jurors have about a defendant profession or business or idea and then show how this defendant is the exception to the shared belief. This defendant breached the trust we all have and did so for the wrong motive, usually money. This defendant stands outside the shared circle of trust because of an improper motive and should be brought back in the circle by the determination of the betrayal through a jury verdict for your client. As David Clark says, mistakes are forgiven and the reason for the negligence is more important than the negligence itself. Motive is critical if we want to involve the jury in their common joint belief of what they expect by way of conduct from professions or other defendants.