Whether it is a civil or criminal case, the members of the jury really want the same thing from you as an attorney. In our contemporary culture, many members of the voir dire panel are jaded, believe all plaintiff’s lawsuits are frivolous, and all defendants are guilty. For that reason, you as the attorney walk into the courtroom under suspicion at best, and are an ambulance chaser at worst. In order to get past this, you must go “off code” as soon as possible. To make that happen, the jury needs at least four things from you.
1. To Be Able To Hear And Follow, From Voir Dire/Opening Statement, A Real “Story”Narrative They Can Identify With.
As trial lawyers, we spend much of our time making sure we are on top of the law, deposition preparation, expert witnesses and other parts of the legal side of the case process. Unfortunately, we short change the factual side of the case. That can be a tragic mistake. The research from numerous sources clearly shows that engaging the jury in opening statement with a chronological story (often best told from the perspective of the defendant in a civil case) has the best chance of engaging the jurors and starting the process of filtering the evidence in your favor. David Ball’s book Damages, Third Edition, provides both instruction and research documentation of the need to be able to open with a good story. This principle was brought home to me recently during a series of focus groups I was running for a client. The client had agreed to try this approach in opening statement to a focus group panel. The client had spent some time writing out a good chronological story that was told from the perspective of the defendant. I got caught up in the story until about eight minutes in when the attorney suddenly said, ” you will find out the importance of my last statement later when I tell you why it was wrong for the defendant to do that.” Not only did I stop paying attention to the story she was telling, but I did not like the fact that she was, in essence, telling me to dislike the defendant before I had heard the defense side of the story. If a good story is told correctly, the jurors will not only pay attention, they will feel like they made their own decision about fault.
2. To Like Both You AND Your Client.
A jury’s view of both you and your client begins long before voir dire. It begins in the parking lot when you or your client pulls up to walk into the courthouse. I can tell you from listening to over a hundred focus groups that in today’s culture many jurors do not like anyone who smokes, or is loud, or is dressed inappropriately. Not only should you make sure your client understands this, it is vitally important that you follow through daily to make sure your client does not act or dress inappropriately. I talked to an attorney a few years back who lost a soft tissue car wreck case on facts that really should have led to a plaintiff’s verdict. One of the jurors did him a favor by talking to him in the hall after the verdict and telling him that his client (a young woman) could not ask for a recovery for back and neck pain, while wearing four-inch heels to both days of trial. Jurors pay attention to small details. You should too.
3. To Trust You And Your Witnesses (Which Means They Must Like You And Your Client-See 2, Above).
Likability and credibility are related, but not the same thing. In real life, we like certain people, that if we were being honest, we do not really trust. Just think of that cousin, friend or colleague that is fun to listen to tell a story or a joke, but we really feel like he or she has a tendency to “embellish.” Not a good thing for a trial lawyer. Modern juries do not want to hear emotional pleas or righteous indignation in opening statement. They want to hear understatement, off code phrases like “I am not asking you to trust me yet.” The Millennials especially do not want to see arrogance, anger, rudeness to the defense or any other behavior that detracts from the case itself. Do not promise to much in opening (which makes a good narrative story even more important). Be prepared, write out your opening statement and get it down to 22 to 25 minutes which you can deliver with a few good demonstrative aids for the visual learners. Credibility is about positive body language, following up consistently on what you say in open court,and continuity in message and evidence. Even your use of technology in the courtroom can add or detract from your credibility. If the video deposition of the defendant you are playing for the jury in your case-in-chief stops ten minutes in (and your tech person cannot get it to work), more than just the testimony of the video witness is called into question.
4. To Feel It Is Just and Proper That Your Client Recover.
Even if you are David and the defense is obviously Goliath, the members of the jury still need a reason why it is OK for you too throw that big rock and hit Goliath between the eyes. There are numerous outlines and materials that give guidance to plaintiff’s attorneys as to ways to empower the jury to help the wronged plaintiff. From Bettinger’s Twelve Heroes, One Voice to Pixar Studios story rules, there are many ways to achieve the goal. It is about a good story (see number 1 above). A plaintiff that is trying his or her best against difficult odds. A defendant that is standing in the way by not being honest about the facts, or altering the records (if you are extremely lucky) or arrogant. It takes work to develop this part of the case, but it is always worth it. The difference between a $100,000.00 verdict and a $1,000,000.00 verdict is often this piece of the puzzle. Jim Lees, a plaintiff’s attorney from West Virginia, has a great example he shares from a med mal case he tried in Tennessee. Physicians misdiagnosed cancer and the plaintiff was at stage four by the time a diagnosis was made. Jim took the time to go spend several days with his client in her home with her family and follow their routine. At church on Sunday, he talked to their pastor who told him that when the plaintiff was going through chemo and lost her hair, she missed church for two Sundays in a row for the first time in several years. The pastor came to see her and she told him she was embarrassed to be seen in church with no hair. The pastor gave her a ball cap with the name of the church and the church logo on it, and told her to wear it the next Sunday, saying that with the ball cap no one would notice her lack of hair. When she came to the worship service the following Sunday, all 1000 people in the church auditorium put on the exact same ball cap on cue when the pastor acknowledged her presence (the pastor had handed out caps to everyone coming into the service along with instructions on what to do that morning). The pastor came to trial and related this story. The resulting verdict was one of the largest in Tennessee history in a med mal case. But Jim would never had known of it if he had not done the legwork.
Yes your case is about meeting your burden of proof on the evidence, and making sure the case gets to the jury. But the jury needs a reason to move past the “frivolous lawsuit” tag. It is your job as the trial producer/director to make sure the jury gets what they need to render justice for your client. You cannot know how to present your client to the jury unless you spend time with him or her. Witnesses preparation takes days, not just a few minutes before going on the stand. Exhibits that get your main point across for the visual learners take time to design and prepare. Focus group review of your case early on, with a mock jury before trial, can be expensive, but is well worth it on substantial cases. Making sure you have proper technical support at trial is not something that can be left to the last minute. Defense attorneys know which plaintiff’s attorneys bring it consistently. It is up to you to make sure that the next report from a defense lawyer to the carrier points out that trial with you as the attorney for the plaintiff is a risk.