Talking to Jurors - Defense Litigation
The following is from an article posted and printed by GPSolo, a Publication of the American Bar Association. The original publication of the article can be found online here: GPSolo-- How to Pick and Talk to a Jury: Defense Perspective.
In civil law, good and evil are relative. I don’t mean to say that there are no inherent wrongs. But in a civil trial we are asking the jury to decide how evil or how culpable a defendant is for the damage allegedly done to the plaintiff. And anyone who has seen a children’s movie knows what it is like to see and hear a story from the plaintiff’s perspective. Every hero or heroine is a potential plaintiff injured by an evil defendant.
Consider, for example, The Wizard of Oz. Dorothy ventures into the Land of Oz and is then assaulted by the Wicked Witch of the West and her flying monkey minions. But according to Wicked: The Life and Times of the Wicked Witch of the West by Gregory Maguire, the Wicked Witch of the West wasn’t all bad. Told from another perspective, she’s a caring animal rights activist who understands what it means to love—in her story, she’s the victim.
A defense attorney’s job is to do what Gregory Maguire did and tell a familiar story from a completely new and different perspective. It is often easier to contrive a plaintiff’s story. Plaintiff’s counsel will be adamant that his or her client was injured because the defendant did something bad and wrong and that the damage was preventable. Sometimes there’s even an injured client sitting at the table looking sad and pained, limping away during recesses. The jurors are naturally going to feel bad for this plaintiff. Representing the defendant often requires more creativity. This is particularly true if your client is technically responsible for some injury but not to the extent claimed by the plaintiff.
Develop a Theme
Before you can pick a jury, you have to know the story you want to tell so that you can determine the audience you want to hear it. Your theme must be prevalent throughout voir dire, opening statements, witness examination, and closing arguments.
The first, most important thing to remember when talking to jurors is that jurors are real people. By “real people” I don’t just mean they are living, breathing Homo sapiens, I mean they are real people who don’t have law degrees or speak legalese. They’re like your Uncle Joe or nosy neighbor Nancy. They hear the word “quash” and think you’re talking about crushing bugs; they hear “protective order” and think it has to do with violence not discovery. They’re those normal people in your life who remember everything you ever did and judge you for it.
Jurors are people who believe in concepts of “fairness,” “justice,” “right,” and “wrong.” They believe in “broken promises” not “breaches of contracts.” They are people who watch movies and TV and read novels and newspapers—not statutes and case law.
Be a storyteller. Attorneys’ greatest opportunities to sell their side of the story are during opening and closing statements. Your opening statement is not the time to pick apart the nuances of your case or harp on the mundane details that may or may not be necessary under the law. It is the time to present an alternative theory for the jurors to consider in lieu of the plaintiff’s story. It’s not enough to say “nah-uh, plaintiff lied!” If at all possible, your side of the story should relieve your client of liability while not completely discrediting the plaintiff’s story. Most people know there are two sides to every story. When those sides are completely misaligned, it is difficult to believe anyone. But if you can get a juror to say “I understand how the plaintiff feels, but the defendant does not deserve to pay,” then you are more credible.
Don’t demonize the plaintiff. The plaintiff’s attorney will most likely tell a story that will appeal to the heartstrings of the jurors—particularly in a personal injury or wrongful death action. A defense attorney who tries to accuse an injured person or decedent of wrongdoing will come across very negatively to the jurors. When it is obvious that the plaintiff was injured, the defense attorney needs to tread carefully. The attorney should appear sympathetic and then have an explanation for why the defendant does not deserve to pay for the plaintiff’s damages.
Don’t overeducate your jurors. Depending on the type of case you are defending, educating the jurors may or may not be in your favor. For example, if you’re defending a large general contractor on a breach of contract dispute, it is not necessary to explain to the jurors the vastness of the scope of work that was to be performed. This tends not only to confuse but also to bore many jurors. More likely, all that is necessary to explain is that the subcontractor’s change order was not approved and thus no further payment is owed. The nuances of the change order may or may not be necessary, particularly in an opening statement. By way of focus groups and voir dire, you should develop a general understanding of what the public understands relative to the complex issues of your case. Then figure out the simplest, most direct way to build on their preexisting understandings so that the jurors see things your way. It may be helpful to analogize a more common experience with a complex issue in your case. For example, discussing the mechanics of a car or bicycle might help jurors to understand a more complex piece of mechanical functionality.
Humanize a corporate defendant. If the defendant appears to be a bottomless pit of money such as a bank or insurance company, it is all too easy for a jury to devalue the dollar when it comes to damages. To protect against this, particularly when defending a large corporation, it is important to remind the jurors that they are discussing real money. Attorney Scott McMillan of the McMillan Law Firm, APC, suggests, “Pull out a dollar bill. Discuss what it buys. Pull out a hundred, and ask them to imagine stacks of money that will be pushed across the table to the plaintiff if they are given what they request.”
For smaller corporations, such as family-owned businesses, it is important to show the jury exactly who you are representing. You can explain to them that the corporation is run entirely by the husband and wife sitting at the defense table. Perhaps the business epitomizes the “American Dream” or “Rags to Riches” story.
Once you know your story and you know your characters, you can then determine your audience.
The level of opportunity an attorney has to speak to potential jurors directly during jury selection varies among courts. You need to know going into the trial how much opportunity you have to ask questions yourself versus the judge asking the questions. If you have an opportunity to speak to potential jurors during voir dire, remember that this is a cherished opportunity for you to speak directly to the jurors. You should be respectful, but not meek. After all, this is your courtroom, so feel free to show them you’re comfortable and in control.
Adapt. Defense attorneys should consider it an opportunity to go second rather than a burden. Some attorneys may find going second to be a disadvantage because the plaintiff gets to make the first impression and takes all the “good questions.” The important key here is that you can adapt. A defense attorney needs to take careful notes to remember what was asked and answered during the plaintiff’s questioning. Jurors feel a greater sense of value if you remember their names and their answers from the earlier voir dire. It’s like when you’re at a party and someone you meet remembers you from last year. It feels good to be listened to and thought of. More importantly, jurors don’t want to waste time repeating answers to the exact same questions.
Actively listen. As we have all heard, “When you ASSUME, you make an ASS of U and ME.” Expectations, not experiences, shape juror biases. Attorneys, like other humans, often apply their own feelings and expectations to a juror’s experience. An attorney who hears “I was mistreated by my employer” may be inclined to wrongly assume “this juror is unfavorable for my employer client.” But, consider the following:
You represent a defendant employer accused of disfavoring women and preferring men by giving men more time off and higher salaries. The juror, a female, was mistreated by her employer who frequently made sexual advances and created a hostile work situation. In this situation, the juror may have little sympathy for a plaintiff who may or may not be earning as much as her male counterparts and doesn’t like her schedule. This juror may feel that she had suffered much worse and the plaintiff is overreacting to an otherwise healthy work environment.
How do you find out what your juror’s experience was? Ask. Ask the juror, “How did that experience make you feel?” “Did you reach a positive resolution when you brought that issue to the attention of Human Resources?”
In this way, jurors often compare their own experiences to the facts of the case. If the defendant did “no worse than what most people do” in the eyes of jurors, than they will often find the employer blameless. The lower a juror’s expectations, the better the defendant looks. As the attorney, you know the facts of the case, so you can weigh a juror’s subjective feelings against what you already know is coming in the case. To that end, in an employment case, a juror with a terrible employment dispute may be more inclined to agree with your “less terrible” defendant than someone who has had nothing but positive working experiences with high standards for employers.
Some attorneys may be thinking, “What about the standard of care?” Well, standards of care usually include the word “reasonable.” And the point is that each juror, based on his or her own experiences and expectations, has a different idea of what is reasonable. A good question to ask yourself then is, “What would this juror find reasonable and how do my client’s alleged actions compare?”
Of course there are exceptions. Jurors who had a bad experience with the exact same defendant—versus a similar defendant—are probably bad jurors because they are likely already angry with your client. If you are representing a hospital defendant, a juror with a negative experience there as a patient still won’t like the hospital even if the plaintiff’s experience wasn’t “as bad.”
Applying the “expectation not experience” rule is a valuable skill for attorneys. The plaintiff’s attorney will most likely nix the jurors who are stereotypically bad for the plaintiff and good for the defendant. So, if the defense attorney can keep stereotypically pro-plaintiff jurors with low expectations in favor of the defendant, then the defense can put itself in a favorable position.
Good Jurors for Defense
- Jurors connected to the insurance industry.
- Managers of small businesses.
- Human resources personnel.
- People with relatable experiences in which they were wronged in a way greater than your client’s alleged actions.
- People who place high value on personal responsibility.
- Fiscally conservative jurors.
- People with a dislike of “frivolous lawsuits.”
- People who are in favor of tort reform.
Bad Jurors for Defense
- Overly emotional or overly sympathetic individuals.
- Union employees or people who place emphasis on communal responsibility.
- Postal workers.
- People who are already angry with your specific client.
Choose Your Audience, Tell Your Story
A defense attorney needs to focus on developing and telling a unique story from his or her client’s perspective; adapt; and actively listen to jurors’ expectations rather than drawing assumptions. It is important to be less concerned with playing defense and more concerned with affirmatively advocating for your client’s position. Sincerity, compassion, and common sense usually win over jurors. No matter how heinous the alleged actions of your defendant-client, remember that even the Wicked Witch of the West has her side of the story.