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Speaking Engagement
TECHNIQUES WE USE TO ENHANCE JURY AWARDS
Frank L. Branson*
The Law Offices of Frank L. Branson, P.C.
4514 Cole Avenue, Suite 1800
Dallas, Texas 75205
(214) 522.0200 (o)
(214) 521.4012 (fax)
www.flbranson.com
New Jersey Association for Justice
Boardwalk Seminar 2009
April 23-24, 2009
Atlantic City, New Jersey
* Thank you to Quentin Brogdon of our firm for his contribution to this presentation
TABLE OF CONTENTS
I. INTRODUCTION
II. USING FOCUS GROUPS
A. Why Use Focus Groups?
B. Selecting Case Themes
C. Narrowing Issues and Theories of Liability
D. Testing Jurors' Reactions to Your Opponent's Case
E. Testing Jurors' Reactions to Types of Cases and Particular Fact Patterns
F. Testing Jurors' Reactions to Parties and Witnesses
G. Determining Sequencing and Emphasis for Presentation of Evidence
H. Determining How Best to Handle Case Weaknesses
I. Predicting Liability and Damages Determinations
J. Setting up Focus Groups
III. SHADOW JURIES
A. Why Use Shadow Juries?
B. Caveats When Using Shadow Juries
C. Avoiding Reversible Error
IV. OTHER EVALUATION TACTICS
V. PREPARATION FOR TRIAL
A. The Key 6
B. Visual Communication
C. Courtroom Inspection
D. Trial Team
VI. VOIR DIRE
A. Substantive Preparation
B. Defining the Problem
C. Suggestions for Voir Dire
1. Use Open-Ended Questions
2. Develop a Theme
3. Establish Credibility
4. Develop Strengths and Identify Weaknesses of Case
5. Educate the Jury
6. Combat the Reluctance to Award Large Damages
7. Commitments
D. Choice of Words
E. Use of Demonstrative Evidence During Voir Dire
VII. DEMONSTRATIVE EVIDENCE
A. General Thoughts
B. Purpose
C. Stages of Trial
D. Strategy, Organization and Preparation
E. Admissibility
F. Types of Demonstrative Evidence
G. Final Thoughts on Demonstrative Evidence
VIII. CROSS-EXAMINATION OF EXPERTS
A. Introduction
B. The Lawyer's Pre-Impeachment Efforts
1. Establishing an Early Temp of Success
2. Modifying Opinions
C. Preparing to Guard Against Impeachment
1. Pertinent Records or Documents
2. Applicable Procedures or Principles
3. The Expert's Background
D. Impeachment Themes
1. The Expert's Lack of Qualifications
2. The Expert is Biased or Prejudiced
3. The Expert Has Made Prior Inconsistent Statements
4. The Expert is Not Otherwise Credible
5. The Expert's Opinions Are Unreliable
E. Attorneys' Approaches to Cross-Examination
1. Nice Guy
2. Command by Apparent Knowledge
F. Final Thoughts on Crossing Experts
IX. CLOSING ARGUMENT
A. Theory and Purpose of Closing Arguments
B. Ground Rules for Successful Arguments
1. Reinforce Positive and Negative Points
2. Explain the Burden of Proof
3. Answer the Issues
4. Emphasize the Jury's Role
5. Paint Mental Pictures
6. Use "Zingers"
7. Do Not Be Afraid of Damages
8. Summarize Testimony Effectively
9. Organize the Argument
C. Brinkmanship
D. Potholes
E. Final Thoughts on Closing Arguments
X. CONCLUSION
TECHNIQUES WE USE TO ENHANCE JURY AWARDS
I. INTRODUCTION
Persuading juries, judges and adversaries to augment awards is just as much art as it is science. Over the course of more than thirty-five years of practicing law and often using trial and error, I have found a combination of strategies and techniques to be most effective. My intent is to share some of these strategies and techniques with you and perhaps to spur you to consider new ways to convince juries in your cases.
II. USING FOCUS GROUPS
A. Why Use Focus Groups?
Focus groups allow the trial attorney to: (1) "road test" messages and themes to determine whether they are persuasive and understandable; (2) gauge potential juror reactions to arguments and evidence; (3) craft more persuasive arguments; (4) translate legal terminology and concepts into terminology and concepts more easily understood by lay-persons; (5) identify information needed by the jury to understand a client's story; (6) test jurors' reactions to opposition arguments; (7) gauge jurors' reactions to particular witnesses; (8) determine optimum sequencing and emphasis for presentation of evidence; (9) identify weaknesses and determine how to handle them; (10) determine jurors' reactions to the trial attorney; (11) determine jurors' reactions to particular pieces of demonstrative evidence; (12) determine ranges of probability of prevailing on liability issues; and 13) determine ranges of damages likely to be awarded by jurors. See Ball, Theater Tips and Strategies for Jury Trials, 196-98 (NITA 1997); Barnett, "Letting Focus Groups Work for You," Trial (April 1999); Komyatte, "Simplify Complex Cases With Focus Groups," Trial (April 2001); Twiggs, "Focus on Settlement," Trial (June 2003). In addition, with enough data, the trial attorney can evaluate and analyze patterns regarding the characteristics most desirable in a juror.
B. Selecting Case Themes
A case theme is a short, concise statement of the essence of a case. The theme in a medical malpractice failure to diagnose case, for example, might be "predictable, obvious and preventable." Another theme in an appropriate case might be, "people should be more important than profits." According to trial consultant Doug Keene, effective messages need to resemble the kinds of things a juror might say. See Keene and Handrick, "The Winning Equation: Message - Resistance = Persuasion," (2004) (unpublished paper at www.keenetrial.com). Themes give jurors frameworks in which to categorize and organize evidence. Selecting an effective theme is therefore of paramount importance.
Many times, focus group jurors provide attorneys with themes when the jurors choose language in attempting to persuade fellow jurors during deliberations. In addition, the effectiveness of themes selected by the trial attorney can be gauged by the frequency that focus group jurors repeat the themes in discussing the case and/or in attempting to persuade other jurors. Most trial attorneys have had first-hand experience of this phenomenon when jurors repeated a theme back to the attorney when explaining their verdict after the trial by saying something to the effect of, "It was just like you said: this was predictable, obvious and preventable." (Needless to say, you do not want to be hearing from the jurors after the trial that, "It was just like the other attorney said ...."). Comments such as these indicate that an effective theme struck home with most jurors, and that the theme was used by those jurors to persuade other jurors who might have been sitting on the fence at the start of deliberations.
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