Speaking Engagement

TECHNIQUES WE USE TO ENHANCE JURY AWARDS

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Complex cases generally have numerous issues and multiple theories of liability. Focus groups can allow the trial attorney to separate important issues from unimportant issues, and to determine the most persuasive theories of liability. In this era of computer-savvy, soundbite-oriented jurors, it is more important than ever to get to the point and stay on the point, without long detours for extraneous, irrelevant matters.

D. Testing Jurors' Reactions to Your Opponent's Case

Inevitably, the trial attorney on the case loses objectivity about the opponent's arguments. The acid test of how effective opposing arguments will be is how potential jurors will react to those arguments. If the plaintiff acknowledges some error or fault, will the jury be more likely to return a verdict in the plaintiff's favor? If the defendant acknowledges error, and chooses to contest only damages issues, will the jury be kinder to the defendant? Will the defendant be able to avoid punitive damages with such a strategy? Will the jury be offended when your opponent criticizes your client or questions your client's credibility? Focus groups can help the attorney answer these questions.

E. Testing Jurors' Reactions to Types of Cases and Particular Fact Patterns

How will jurors view a corporation that manufactures a particular type of component part? In a case in which a clinic fails to correctly report the plaintiff's medical test result, will the jurors blame the plaintiff for not getting a second test at another clinic? What role will the suspension or revocation of the defendant's driver's (or nursing or medical) license play in the jurors' deliberations? How will the fact that the defendant had a prior criminal conviction influence the jurors? If there are particularly sensitive issues in the case, what is the least offensive way of handling them? Questions such as these can be answered by focus groups.

F. Testing Jurors' Reactions to Parties and Witnesses

How will the jurors view the plaintiff? How much (and what type of) testimony from the plaintiff and the treating doctors and other damages witnesses will be necessary to make the jurors "feel the plaintiff's pain" without causing the jurors to believe that the plaintiff is shamelessly appealing to their sympathy? Will the unrepentant defendant be perceived to be arrogant or principled? Will inconsistencies in a witness' testimony be forgiven? Will the key witness with a thick, out-of-state accent be embraced by the jury or ignored? Will the jurors be offended by the amount of the expert witness fees in the case? Will the training and experience of the witness be persuasive to the jury? Questions such as these can be answered by focus groups.

G. Determining Sequencing and Emphasis for Presentation of Evidence

Due to the potency of primacy and recency points in the minds of jurors, commentators generally advocate starting and ending with your strongest points, and sandwiching any weaknesses that must be addressed, in between the strong points. See R. Herman, Courtroom Persuasion 265 (1997) ("I often look upon disclosure as a Strong-Weak-Strong structure ... Give a strength, disclose a weakness and end with a strength."); S. Lubet, Modern Trial Advocacy 430 (2d ed. 1997) ("...negative information should not be mentioned until you have laid out all of the positive facts about the witness. If you believe that you must defuse a ticking bomb, do it quickly and without fanfare."). Nevertheless, within these general parameters, there is a great deal of potential leeway. In a given case, what evidence should be introduced first? Should the plaintiff begin by focusing upon the plaintiff or by focusing upon the defendant and the defendant's conduct?

Focus group researchers have discovered a consistent pattern: when they start by focusing on the plaintiff, jurors blame the plaintiff for the accident. On the other hand, if they start by focusing on what the defendant did wrong, jurors place much less blame on the plaintiff. See McArdle, "Plaintiffs Should Always Start by Attacking the Defendant," 99 L.W.U.S.A. 960 (October 19, 1999) (hereinafter, "McArdle"). This may be explained by the availability bias - as people struggle to understand something new, they focus upon the information first presented to them to develop a working understanding of what occurred and why, and fill in the blanks using available information. A trial presentation technique called sequencing begins with the defendant's conduct and keeps the jurors' focus on that conduct. This technique minimizes the jurors' focus upon the plaintiff's blameworthiness and maximizes the jurors' focus upon the defendant's blameworthiness because jurors begin focusing upon the plaintiff's behavior only after they have already blamed the defendant. Casting the defendant early on as the villain makes jurors angry at the defendant and makes them want to take action. The plaintiff's appeal to sympathy, on the other hand, is often futile because it may trigger defensive attribution- blaming the victim in order to create psychological distance from the victim and the chances of a similar fate:

Sympathy is an emotional state - and an uncomfortable one at that, because it makes people feel both powerless and vulnerable. It produces two responses. Because it makes them feel vulnerable, they want to find a reason why it would never happen to them - often by finding something that the victim did wrong that brought on their state.... McArdle.

In one actual case that was tried twice, the plaintiff's lawyer appealed to sympathy in the first trial and to anger in the second trial. The starkly differing reactions of the jurors in the two trials are instructive. In the first trial, the plaintiff's lawyer began by showing the jury a day in the life film of his client, a boy who had lost most of his mental and physical faculties. The film depicted the boy drooling and having his skull drained with a needle. The jurors exhibited complete indifference in response to the film. After a mistrial, the plaintiff's lawyer began with the defendant doctor, followed by the plaintiff's expert, the boy's parents, a friend of the boy's and then, the boy himself - in his wheelchair, but only briefly. This time, everyone in the courtroom, including the judge, was crying. The jury returned with a multi-million dollar verdict. See McArdle. The lesson is that anger may be exponentially more powerful than sympathy as a motivator, and the plaintiff's attorney is generally well-advised to keep the early focus of the case on the defendant's behavior. Notwithstanding the points made above, there certainly are cases in which it is more appropriate to start the case focusing on the plaintiff's injuries which many times will require discussing the plaintiff's conduct. The determination on whether to begin the case focusing on the plaintiff's or the defendant's conduct can be assisted by the use of focus groups. However, I would recommend that experienced trial attorneys use their gut feeling as to whether to begin with damages which may include some comparative negligence of plaintiff's misfeasance or malfeasance.

H. Determining How Best to Handle Case Weaknesses

Every case has bad facts, to a greater or lesser degree, and the opponent always has points to make. There may be damaging admissions, prior inconsistent statements, violations of policies and procedures, facts supporting contributory negligence, prior injuries, delays in treatment, criminal records or other bad facts that come into evidence. The first line of defense is the filing of a motion in limine. Assuming that fails or that there is no legitimate argument to support the exclusion of the bad evidence, when is the optimal time to deal with the bad evidence? Is it best to deal with the bad evidence only after the opponent introduces it, or is it better to "inoculate" the jury against the bad effects of the evidence by first introducing it in a weakened form? My experience tells me the answer is damaging evidence is better discussed first by the plaintiff rather than after admitted by the defendant in most cases, but focus groups can be helpful in how to best present bad evidence before your opponent presents it.

I. Predicting Liability and Damages Determinations

How many times out of ten will a jury find liability? If the defendant concedes liability, will the jury come back with lower damages numbers than otherwise? What evidence is most relevant and most persuasive on the issue of liability? What evidence is unnecessary, distracting and/or redundant? What effect will the barrage of "tort reform" messages have upon the case? What is the range of potential damages verdicts, assuming liability is found? What questions will the jury want answered in determining the amount of damages in the case? Will the jury assess punitive damages? If so, in what amount? What evidence will motivate the jury to assess punitive damages? These are all questions which can provide useful information when answered by focus groups. Remember, however, focus groups are not an end-all/be-all. They are merely one aid to assist trial lawyers in presenting their case.

J. Setting up Focus Groups

For a fee, trial consultants can be hired to set up focus groups. There are also books and articles advising how to conduct your own focus groups. See, e.g., D. Ball, How to Do Your Own Focus Groups: A Guide for Trial Attorneys (NITA 2001). One of the most critical issues, regardless of whether the focus group is self-conducted or hired out, is ensuring that the focus group jurors are representative of the jury pool in the applicable jurisdiction. Screening the participants is essential to this goal. Otherwise, any data from the focus group is suspect, and perhaps even worthless. Another critical issue is ensuring that the focus group jurors are not aware what side of the case is sponsoring the group. A neutral location, such as a hotel conference room or a jury consultant's facilities, can assist in achieving this goal. Confidentiality, too, on the part of the participants is imperative. Beyond that, as the saying goes, "Garbage in, garbage out." The closer the presented evidence and arguments mirror what the real jurors will see, the greater the likelihood that the focus group's determinations will mirror the real jury's determinations. My wife, Debbie, with whom I practice law, returned to school and got a Master's Degree in Forensic Psychology. For many years she has been frequently involved in setting up and running our focus groups, and using that information in voir dire and trial presentations.

III. SHADOW JURIES

We continue the process sometimes at trial by the use of shadow juries, which can give us feedback on a daily basis during a jury trial. Often we gather the shadow jury from employment agencies in the locale where the case will be tried and try to take more than we need to jury selection so that we can keep some place between six and twelve who are most like in background to the jurors who are selected for trial. We have used them over the years with mixed results. It appears that the shadow juries' end verdicts are more closely related to the verdicts of the actual juries if they only heard the evidence the jury heard. It is better to take the shadow juries out of the courtroom. I frequently have my wife Debbie, who is both a trial lawyer and has an advanced degree in psychology, debrief the shadow juries during the evening to assist us in preparing for the next day's presentation.

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