Lessons from the Deliberation Room
When you go through law school, socialize with other attorneys, and draft motions directed to attorneys and judges, you can easily lose the perspective of the rest of the non-legal world. When you go to court and have to convince a jury of lay people, you may overlook some things that come as second nature to you. I came across a blog post by an attorney who was seated on a personal injury trial. Below are some excerpts from his blog along with my commentary. I suggest reading the entire blog post, however, as I will not cover the entire post. The full post can be found at http://mnbenchbar.com/2011/07/role-reversal-a-lawyer%E2%80%99s-jury-service/
“Once deliberations started, things got really interesting. My fellow jurors immediately elected me—“the lawyer”—as foreperson.”
Although it is very rare that an attorney, especially a litigation attorney, make it through jury selection, there is a larger point here. Any juror who could be an expert in the topics related to your case are likely to be leaders based on their knowledge. The jury will turn to them to impart advice to the rest of the group. If you believe this juror will see the case in a light favorable to you, then keep him/her on. However, if you are at all skeptical, you should strike them as you never want a leader to be against you.
“I thought it made sense to start our deliberations by trying to separate the plaintiff’s back and neck injuries from her alleged shoulder injury. But several of the jurors wondered why we would use this approach. “The lawyers said her back and neck injuries were not at issue,” one of my fellow jurors said. “To me, that means they’re not part of the trial. We aren’t supposed to award her anything for back and neck injuries…While it was true that the lawyers had said the back and neck injuries were “not at issue,” that was a phrase that I could recall uttering in court, too. When I said it, I meant that both sides agreed on a certain fact or point of law. I did not mean that the fact or point of law was not material to the case.”
Legalese can be very dangerous – even to the point of nixing out entire categories of damages. Realize that when you say things like “not at issue,” jurors have no idea what that means. Make sure that in closing, you follow the format set out by David Ball in his Damages books, wherein you massage the jury instructions, explaining them all in plain English. The danger here is that you may think parts of the instructions are plain English already. Do not assume. Test the instructions in a mock trial or hand them to some younger kids and ask what they think it means. Then apply the plain English instruction to your case. Here, you would have to explain that “not at issue” simply means that it is not argued about. It means both sides agree these injuries exist so you, the jury, do not have to decide that, you accept that they are injuries and your job is to decide how much money it will take to make up for them.
“Jurors were intensely curious about facts that had been hinted at, but not fully developed. For example, there was a single sentence of testimony about the plaintiff’s impressive weight loss since the accident. If she was heavy at the time of the accident, could that have contributed to her shoulder pain? There was no evidence presented at trial to help answer that question, but that didn’t stop the jurors from wondering.”
Often there are small inconsistencies or issues that you don’t spot in your own case because you are too close to it. Focus groups and mock trials help immensely in revealing these issues to you before you step in a courtroom.
“The jurors who had been in car accidents—including myself—saw the collision through that lens. “My accident was worse than hers, and I didn’t get hurt,” one juror said. Interestingly, during voir dire, the judge and lawyers had not asked the potential jurors about their experiences in car accidents in general. They only asked whether jurors had been involved in car accidents where someone was injured. As it turns out, it would have been equally enlightening to hear about the jurors’ experiences in car accidents where no one was injured. After all, a juror who has a car accident where everyone comes away unscathed might be more likely to doubt the alleged injuries of a plaintiff, especially if the juror’s accident was more violent.”
This is evidence of the power of good questioning. Many believe that open-ended questions are anything that does not require a “yes” or “no” answer. Truly open and useful questions, however, do not lead in any sense. Start by asking jurors what experiences they have with car accidents or what comes to mind when they think of a car accident. The less you lead them, the more likely you are to get useful information. Sometimes the most useful answers are answers that your questions would have blocked.
“One eye-opening aspect of deliberations was the importance of the exhibits that were with us in the jury room. I took on the task of going through the medical records one-by-one, reporting to the group any significant information. (Later, another juror double checked me.) More than the live testimony, this process allowed the jury to create a narrative and a time line that helped with deliberations. For example, our review of the medical records confirmed that the plaintiff had not complained of shoulder pain until long after the collision. It also showed that the plaintiff’s existing rotator cuff tear became no bigger as a result of the accident. Also, we saw that the plaintiff was involved in several accidents over the past 15 years, and visited a lot of providers about a host of medical issues—facts that had been mostly suppressed during the trial.
First off, notice that exhibits are powerful and if done correctly, they can be of great use to jurors. Be careful, however, of what your exhibits show. If a bad fact is going to become known through exhibits in the deliberation room, you need to bring up the bad fact yourself during trial. Otherwise, you can be seen as trying to hide something and jurors will hold it against you much more than if you had divulged it. Similarly, many exhibits in today’s world are not even part of the trial. Some of the most powerful exhibits are what jurors find on the internet. In David Ball on Damages 3, there is an appendix that talks about thorough internet searches on topics, parties, and witnesses in your case. If you don’t know what is out there, you can easily lose trial based on facts never brought in the courtroom.