Subtlety is Key
Imagine a conversation with a significant other. You want to spend money on a big television and they want to putting the money in savings. They approach you as follows: “Honey, you’re being ridiculous! The economy is in the toilet and you want to go spend money frivolously? How can you possibly make that uninsightful of a decision?!” Chances are, you will become even more entrenched in your decision to buy a television. Their judgmental approach hits a button and turns you off to seeing any rationale on their side. Suppose instead, they approached you in a more open, subtle manner: “Honey, I know the television is important to you. I will support whatever decision you make, but please consider the importance of savings and how that might help us later.” Much different tone and probably a much different result.
Jurors are like anyone else: They do not like being told what to do or how to feel – and ESPECIALLY not from plaintiff’s counsel. People who come to opinions on their own hold to those opinions much more adamantly than people who have been told what their opinions should be. If the defendant was being reckless, tell jurors the plain facts and let them decide that the plaintiff was reckless. They will be much more angry about it if they notice it than if you point it out with condescension in your voice.
When you conduct voir dire, make jurors feel welcome to voice their opinions. Explain that diversity is what makes this country great – the diversity of religious beliefs, political beliefs, etc. Tell them that you will not judge them on what they believe, you just want to have a good and honest discussion. When you get to opening, state the rules and facts of the case. Do not put in any adjectives or adverbs. Let the jurors fill those in for themselves. As you examine witnesses, keep a calm and neutral tone. Your job is to show jurors the facts and let those facts anger them. In closing, tell jurors that they are the ones who get to decide how important this rule violation is. If they feel it is an important rule, then their verdict should reflect that. If they think the rule is unimportant, then their verdict should speak to that instead. Give them the choice, let them feel free to make a decision.
When I was growing up, my father would always say, “Let your conscience be your guide.” I hate it, but it always forced me to look inside myself to come to the same decision I knew he would have preferred (the right and noble one). Let the jurors follow their consciences. You are the messenger to give them enough data on which to base their decision.