Tag Archives: jury

December 3, 2025 · 1:50 am

How did we get a $10 million verdict for broken heel with $10k in meds?

A week before Thanksgiving, a trial team and I won a $10 million verdict in a case involving a broken talus bone in a conservative county (Indianapolis) with $10,000 in past medical bills (which we fought to keep out but which defense was allowed to bring in). This was a hard fought battle with a tough judge and some really bad rulings, but we prevailed with grit and foresight.

The case involved an admitted liability trial against Frito Lay. Plaintiff, a 47 year old female, shattered her talus bone in the wreck.

Her talus bone healed but post-traumatic arthritis became apparent later and progressed quickly from mild to severe over the course of two years to the point that she can no longer walk more than a block or two, cannot stand for longer periods of time to cook meals, cannot fall asleep until 4am due to the pain, and cannot sit to work longer than an hour or two without tears.

Her physicians all opined she needed a subtalar fusion which she had yet to get due to high blood pressure that predated the wreck but that she could not control post-wreck due to inability to exercise.

Defense tried to use blood pressure as its biggest red herring throughout the trial and said the fusion would fix it all. We argued that there was no magic pill for her and even if she got the fusion, she would forever have pain.

Paid medicals were $10,000, incurred medicals were $45,000. We wanted to waive these but defense was allowed to bring them in.

Defense IME opined that plaintiff had a new injury during the recovery period. Defense pulled the plug on him and didn’t call him to testify which likely backfired as he was their star witness.

One of the big claims for damages was the fact that the plaintiff was unable to complete her doctorate and work. The pain in her foot is so severe that she cannot sit for more than a couple of hours without tears and can’t walk without assistance. She had dreams of starting programs to help aged-out foster children which would help heal some of her wounds from her broken and abusive childhood. Lost earnings were $600k, but the loss was so much more than that. She lost her passion and purpose.

Defense economist refused to acknowledge that chronic pain and loss of sleep could make it more difficult to focus or sustain employment long term and that she could sit to work but she broke down in tears during testimony and needed a break. She was far from a complainer and was a stoic woman with a tough life. Jurors knew this was not theatrics.

The judge was so harsh on my attorney clients that they almost called off trial days before. “We can’t get a fair trial with this judge,” they said. After talking it through with them, I convinced them to push forward. Trials are never clean, judges often make bad rulings, and yet it all comes down to the story, the client and the jury. I knew we had a great client, a compelling story, and we had to get to trial to see the jury (who also turned out to be fantastic).

The judge denied demonstrative animations, including a surgical animation that even defense agreed was admissible. In opening, he cut us off on any part of undermining defense contentions stating that we could not preview the defense case at all. During jury selection, he did not seem to properly account for juror numbers and denied a very clear cause challenge (while granting a lesser one for defense).

He was good at engaging jurors, however, and did calm down when we got moving.

Final offer during trial was $200,000. The jury took 90 minutes to come forward with a $10,000,000 verdict.

I helped with case framing, witness prep of the client and her family members, review of client-conducted focus groups, aide in opening statement and closing argument preparation, and select the jury. Brandon Yosha of Yosha Law and his team took my advice and eagerly applied it. They weren’t afraid to put in the hours or change course and the results speak to that.

I’m very proud of this one: it could have been a case about a broken heel and speculative surgery but jurors knew it was about so much more.

A note about trying a case during holidays: trial timing is rarely convenient. But when your closing argument lands during the holidays, you can either ignore it or use it to anchor the jury in the real-world human consequences of their decision.

In closing, Brandon went through how long the verdict has to last. By showing a timeline of past events, he was able to get jurors to realize how long 40 years is. This gets jurors primed to think of the consequences of their verdict over time.

Since we closed a week before Thanksgiving, I told Brandon to add this:


“Thanksgiving and the holidays are upon us and we will all go back to our families and friends. In twenty years, when Thanksgiving rolls back around, maybe you will think of Karen and your verdict. I hope that you will be proud of the decisions you make here today and look back without any regret. Because somewhere, at that very same moment, at some other Thanksgiving table, Karen will be living out your verdict. What does that look like for her? That’s up to you.”

If you want to hear more about this trial, we will be speaking on Trial Lawyers University on December 18th at 10:30am PST and it will be recorded and available on demand thereafter.

If there is a case I can help you with, please reach out. I’d be honored to help.

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March 27, 2024 · 3:59 pm

Let’s talk bifurcation

Let’s talk bifurcation.

Nick Rowley recently gave a talk about bifurcation, and I agree with his thinking and belief that bifurcation is widely underutilized. However, I think there are some risks that Nick may overcome simply by being Nick, so let’s discuss.

First, bifurcation means separating the liability and damages portions of the trial. The damages phase is only appropriate if jurors find in the plaintiff’s favor on liability. Sometimes, this means having the same jury hear both phases, and other times, it may mean separate juries and separate trials. This has implications.

The benefits of bifurcating are based on jurors’ innate tendencies to let liability bleed over to damages (and vice versa). This bleedover can sometimes be helpful, but it is often detrimental. For example, if you have a weak liability case (i.e., comparative fault or little to no anger points), the liability weaknesses can trigger jurors to want to give lower damages. Bifurcation, in this instance, can help put a barrier between a weak liability and a strong damages case, thereby releasing some of the hold that liability problems have on damages.

Some considerations, however, are whether you would end up with two separate juries. While Nick Rowley isn’t so concerned about this setup, I believe it can backfire in some cases. Having two separate juries hear liability and damages essentially gives you an admitted liability case when approaching damages, which means jurors hear nothing about what happened. Sometimes, this may be preferable (i.e., a typical car crash case where the defendant is a nice elderly man who simply had the sun in his eyes for a moment). Other times, you want jurors to hear the liability portion to incite anger. In those instances, you would be best served by bifurcating with the same jury.

In cases where liability and damages are both strong, you may not want to bifurcate, as they will bolster one another. That said, many cases can benefit from bifurcation, and not doing so may cost you substantially.

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February 6, 2012 · 4:26 pm

How to Use “Herd Mentality” to Your Advantage

As advanced as humans are, we are still primitively just mammals belonging to a herd.  Animals and people stay in herds because it provides safety.  If one member finds danger, the rest of the herd is alerted.  Think about being out in the African desert completely alone.  Now picture having a group of people there with you.  I would suspect your stomach felt very different imaging the two scenarios. 

Jurors are no different.  In mock trials and focus groups, I ask jurors what other information they think would be helpful.  There is often one juror who wants to know what other jurors in similar cases decided – how much money did they give?  The want to know the precedent.  Why?  Because they want to follow the herd. 

You can use this mentality to your advantage in several ways.  Some of those methods are taught in “Reptile” seminars with David Ball and Don Keenan and I would suggest attending to get more plaintiff-specific methods.  Here, I want to mention some basics. 

1. When talking to experts or witnesses, use the word “us” instead of “the jury.”  For example, “Dr. X, can you explain to US how the blood vessels became clotted?”  This puts you in the same boat as the jury and unifies the jury as one group.

2. Get jurors to see their own commonalities.  You can start to unify jurors as a group early on in voir dire.  Explain how most people who get jury summons don’t want to come but they all have something in common – they all showed up.

3.  Frame questions for your experts in a manner that hints at what others may think.  For example, ask experts, “so, most agree…?”  This hints to jurors that others think one way and to be part of the herd, they better follow.

4. In closing, tell jurors “I wish I could tell you what other jurors in cases like this do, but I’m not allowed to.”  This insinuates that what you say is in line with what other juries say or do.  Greg Cusimano is very good at this method so I suggest reading up on his works as well.

To finish it off, I’m posting  a video purely for entertainment purposes but it certainly demonstrates herd mentality:

http://www.youtube.com/watch?v=lYTBOhicf4g&feature=player_embedded

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January 12, 2012 · 3:22 pm

What Do Jurors Care About?

Do you ever feel like jurors decided your case randomly or based on something other than the evidence you presented?  It’s highly probable.  It happens often and you need to understand not only how to minimize that risk, but how to control for it and use it to your advantage.

This blog is named “jurorproof” for a reason.  Most everything I post about has to do with proving your case to jurors.  That may sound obvious, but please make sure you understand the significance.  There is a huge difference between “legal proof” and “juror proof.”  Legal proof is what you have to prove to meet the elements of the claim.  The judge requires it and the jurors to some degree care about it when the go to fit the evidence into the verdict form.  But to really win over a jury, you need to appeal to juror proof – the things jurors want and need to hear that may be completely unrelated to proving your claim in a legal manner. 

For example, in a medical malpractice claim, you not only have to show duty, breach, causation, and injury.  Jurors may care about your client’s hopes for the future.  They care that your client drafted a living will before going into surgery because it means (to them) that your client had a death wish (yes, this has come up in a couple of my focus groups).  They care that there was no secondary backup system for files even if not required.  These are things that they need to fill gaps in the stories they create based on their own experiences and backgrounds.

In 1986, Pennington and Hastie did research on mock jurors and found out that only 55% of story references made by mock jurors are made to events/evidence directly testified to whereas 45% were made from inferred actions, mental states, and goals that jurors drew from their own backgrounds to fill in gaps in the story.  Is this just in mock trials?

Well, in 1996, the Arizona Project kicked off where judges in Arizona allowed video cameras into the deliberation rooms of real juries.  The numerous tapes and transcripts (I’ve seen them myself) back up the reasearch from Pennington and Hastie.  Sometimes you want to scream at the jurors to get back on track – you want them back on legal proof grounds.  But that’s not what matters to them.

So what does all of this mean for you?  For one, it means that you need to fill in gaps in your story before the jurors do it for themselves.  One thing that makes for a believable story is that it is comprehensive.  The less gaps the better.  I understand that if you have an illegal alien for a client, you may not want to bring up that piece of information to the jurors if you have an order from the judge excluding it from trial.  But if jurors see your Spanish-speaking Hispanic client, they will wonder it themselves.  This is something they will care about.  Whether your client is illegal or not has nothing to do with legal proof but you better believe it’s a big part of juror proof.  Deal with it in voir dire.

Secondly, do some research.  Find out ahead of time what juror proof for your case is.  The only way to do this is to talk to real people – people who match the demographics of your trial venue.  If you can’t afford to hire someone to do a focus group in a reliable manner, at least talk to some neighbors.  Go to a mall and talk to strangers about your case.  Buy them a coffee or ice cream in exchange for their time.  Without that feedback, you would never know that having a living will means having a death wish to jurors, for example. 

Don’t go into trial blind to the juror proof.  You would never go into trial without knowing the legal proof you need to fulfill.  This is no different and equally important.

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November 20, 2011 · 8:50 pm

Unreliability of Eyewitness Memory & How to Counteract It

If you’ve spent any time interviewing jurors, you know that eyewitness testimony holds great weight.  And if you’ve spent any time researching cognitive psychology, you know that eyewitness testimony can be very unreliable.  I want to briefly discuss the research and then will talk about implications for your case.

Elizabeth Loftus is one of the leading minds in the field, along with Garry Wells and a few others.  She ran an experiment in 1989 where she showed subjects a video of a car accident at an intersection where there was a stop sign.  Half of the participants later received a suggestion that the traffic sign was a yield sign.  When questioned about what traffic signal they remember seeing in the video, participants to whom the yield sign was suggested reported remembering the yield sign instead of the stop sign, suggesting that the suggestion of the yield sign altered their memory of the original event.  I am certainly not suggesting that this happens every time –  there are many factors that increase or decrease the chance that a memory gets altered, such as how focused the participant was on that particular item (if the subject found the stop sign to be particularly important, they are more likely to focus on it and be less vulnerable to the yield sign suggestion). 

Perhaps the scariest part, however, is not that the memory was altered, but that a person’s confidence level in their memory is not correlated with accuracy.  This means that you can get an extremely confident witness on the stand who will win over jurors but is inaccurate in their recollections.

Much of the studies on memory and testimony relate mostly to criminal cases where there can be police suggestions in lineups or interviews that alter the memory.  But the problems can also appear in civil cases where people are questioned by police, attorneys, and put through numerous depositions.

So what can you do about it?  You certainly cannot prevent the altered memory and you may not even have the ability to know when or how it happened (unless you have a criminal case where there are more clear factors such as suggestions that are implanted at the lineup).  But consider informing your jurors of these psychological phenomenon.  Experts like Elizabeth Loftus testify in cases and can point out to jurors the factors that make memory more or less accurate, giving them things to look at other than the confidence of the witness.

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October 22, 2011 · 4:13 pm

Detecting Lies During Voir Dire

There have been many studies done on lie detection and the results are often disheartening.  Most of us, including police officers, fare no better than chance at detecting a liar.  When it comes to your voir dire, this can be troublesome.  While much of lie detection is a gut reaction (if you haven’t read the book “Blink” yet, I highly suggest it), there are some things that you can look for and some myths you should be educated about. 

Myths:

  1. Liars Fidget.  Yes, maybe…but so do people who are telling the truth.  Often, good liars have learned to keep their bodies very still.  You could have a truthful juror who is simply nervous and fidgety.  Don’t assume a nervous behavior means they are lying.
  2. Liars Look Away.  Again, not necessarily.  Some liars will look you straight in the eye.  They may even have more direct eye contact than normal.
  3. Liars Won’t Have Detailed Stories.  Not true.  The stories are more likely to be overly detailed.

The most important things to look for in detecting lies are inconsistencies.  As humans, our bodies betray us – there are little tells that come out even if you don’t mean for them to.  Slight smiles when talking about something gruesome and horrifying or nods of the head when talking about something in the negative.  Look for these subtle body language cues. 

If you ask basic questions first, you can get a baseline reading off the person (such as asking about their family and work life).  When you ask more controversial case-specific questions and they react differently, that may be a sign they are lying.   If a juror is fidgety when talking about basic questions but then stiffens up when answering more case-specific questions, you need to consider that they are lying on the case-specific questions.  Watch for changes in tone of voice, body gestures, crossed arms, whether they look straight at you or not.  It is not the gesture in itself that matters – it is the difference from their baseline.  Watch for inconsistencies and you will fare much better than sticking to stereotypes of liars.

If you want to know more, look up some work by lie detector Pamela Meyer and I’m sure there are many others.

 

 

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October 10, 2011 · 4:23 pm

A Look At the New Argumentative Theory of Reasoning

In one of my previous posts, a reader asked about a new theory called Argumentative Theory or Argumentative Reasoning.  I thought it would be helpful and enlightening for some if I posted the basics of this theory.  Although this theory meshes well with older concepts such as confirmation bias, the theory in itself was just recently published in Behavioral and Brain Sciences in an article written by Hugo Mercier and Dan Sperber titled “Why Do Humans Reason?  Arguments for an Argumentative Theory.”  I do not necessarily endorse this theory.  I merely provide information as food for thought.

The theory states that humans reason not to discover truth or work toward that end goal, but rather to win arguments.  Reasoning therefore may not seem “reasonable” at all – it can be very irrational and actually lead people further away from what we normally would consider rational.  This is where the theory meshes nicely with confirmation bias.  Confirmation bias states that people will alter information to fit their prior beliefs, sometimes forgetting information that is inconsistent with their beliefs or exaggerating information that is consistent with their beliefs.  With Argumentative Theory, people may be doing the same thing for the same purpose – to hold fast to their beliefs and make the world around them conform to those beliefs.  This theory challenges the idea that reasoning should lead to better decisions.

The theory also meshes well with other evolutionary theories such as those espoused by David Ball in his book, Reptile or Rapaille’s Culture Code.  Under Argumentative Theory, the evolutionary reason for reasoning is to help us convince others of our arguments and to be on guard when others try to convince us of theirs.  This is a self-preservation mechanism.  If your view of the world is wrong and you are making decisions based on that view, then you are in danger.  If you can convince others that your view is correct, however, you are safe. 

Putting the theory into practice for trail strategy purposes, you need to be aware of the pre-existing beliefs of your jurors.  Try to make the case fit within those beliefs.  Read Rapaille’s book and understand what codes are associated with various people or things within our society.  Run focus groups and find out what jurors think about topics associated with your case.  If jurors believe that doctors are caring, competent people, then show that you agree with those views and then show how the defendant doctor did not conform to those ideals.  Contrast what the defendant doctor did with how other doctors acted. 

Realize that jurors are going to argue to keep their world consistent.  Work within that consistency and you will do a much better job at “arguing.”

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October 2, 2011 · 3:08 pm

How Well Can You Predict the Outcome of Your Case?

In my years of studying jurors, I have come to find attorneys just as intriguing.  Attorneys know their cases extremely well.  So well, in fact, that it hampers their ability to predict the case outcome, which ironically is precisely the thing that they study the case so intently for.  The objective of taking on any case is to win – whether that means a good sized settlement, a motion to dismiss, a protective order, or a verdict at trial.  Attorneys work countless hours toward that objective, but in becoming so familiar with the case, they become dissociated from the people who are deciding the case and are hearing the facts for the first time.  Things that became important to the attorney over the course of time and which he/she thinks are the cornerstones to the case can be completely irrelevant to listeners, such as mediators, jurors, or judges, who have much less familiarity with the case.  If the purpose is to persuade these listeners, attorneys need to learn to rely on strategies for preparation other than their own intuition.

Attorneys consistently make decisions about their cases based on their own predictions.  They decide whether to mediate, whether to take a settlement or reject it, and whether to proceed to trial all based on their inner predictions.  If attorneys are poor predictors of case outcomes, they may accept low settlement figures or reject adequate offers to settle.  To become better attorneys and better serve clients, attorneys need to become more accurate predictors.  One way of doing so is learning whether previous predictions were correct.  Mock trials can test these predictions as can post-trial juror interviews. 

People as a whole often either over or underestimate their abilities on tasks.  This is not specific to attorneys.  Many attorneys are overly confident in their abilities to predict outcomes.  This is due to many factors.  Attorneys are supposed to be advocates for their clients.  In doing so, attorneys display a confidence about their position.  This confidence can, over time, skew the attorney’s reasoning and make him/her overly confident about the likelihood of success.  It is human nature to become more confident in a goal when expressing confidence to others.  The more one espouses one’s beliefs, the stronger those beliefs become.  Further, attorneys wish for a good outcome.  In wishing for something, they convince themselves that it is true.  This is a strength for zealous advocacy but a weakness when it skews the attorney’s ability to predict and therefore make sound decisions.  Attorneys may also exhibit overconfidence due to a failure to recognize that they are not fully in control of the outcome.   Judges, mediators, and jurors have their own minds.  To the extent that attorneys do not incorporate those individuals’ control over the outcome, they disillusion themselves in making decisions or forming strategies.

A study done by Goodman-Delhunty, Granhag, et. al., tested attorneys’ abilities to predict case outcomes.[1]   Participants consisted of 481 litigating attorneys, the great majority of which were civil litigation attorneys.  The attorneys were asked what a win situation would be in terms of a minimum goal for the outcome of the case.  They were also asked what their degree of certainty was for achieving that minimum goal or better.  In 32% of the cases, the final outcome matched the minimum goal set by attorneys.  In 24% of the cases, the outcomes exceeded the attorneys’ minimum goals.  In by far the majority, 44% of the outcomes were less satisfactory than the minimum goals.  In a large proportion of the cases where the minimum outcomes were not met, the attorneys erred on the side of being over confident.  Further, the higher the confidence level, the more off the attorney’s prediction was from the outcome.  The study also found that experience had no effect on the ability to predict case outcomes: Experienced attorneys were no better at predictions than were inexperienced attorneys.    

If attorneys are so bad at prediction case outcomes, thereby often making poor decisions regarding their handling of the case, how can attorneys do a better job for their clients and themselves?  The answer lies in relying on input from people who are not handling the case.  Attorneys are too ingrained in the case to predict what the decision-makers will do with the evidence.  Focus groups and mock trials give attorneys an opportunity to test their predictions and to see what people distanced from the case find important.  If done before mediation, focus groups and mock trials can direct the attorney as to whether to settle and what range of settlement figures are acceptable for that case based on what jurors would do at trial.  Without the input from outside sources, the majority of attorneys will make decisions which will create an outcome that is less favorable than even their minimum goals. 

[1] Goodman-Delhunty, Granhag, et. al. (2010) Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes. Psychology, Public Policy, and Law, 16(2), 133-157.\

*This article was originally published in Trial Talk magazine

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September 26, 2011 · 12:16 am

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.

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September 15, 2011 · 2:20 pm

Acts vs. Omissions – A Small But Powerful Difference

You’re creating the story of your case for opening and trial.  You have a situation where a business allowed an unsafe condition to exist on their land and as a result, your client got hurt.  You get to the point in opening where you start to tell the story and you say, “the defendant failed to fix the problem.  They never put up warning signs…”  You may not have realized it, but you have already compromised your story. 

There are two principles to keep in mind when telling a story, whether in opening or questioning witnesses or closing:

1. Acts are more powerful than omissions because jurors forgive omissions much easier than conscious acts or choices.  In focus groups and juror interviews, you consistently hear jurors say “well, it was just an accident” or “anyone could forget that” and so on.  This is because as humans, we understand that no one can think of everything every time, so we let people off the hook for forgetting something.  If the same scenario is framed as a conscious choice, however, it is much harder to forgive because it feels deliberate and intentional.  So, in the above example, you should tell the story as “the defendant sees the pot hole.  He examines it and CHOOSES to walk inside.  He DECIDES to start setting up his shop for business.  Six hours later, the plaintiff comes to shop at the defendant’s store….”  This sets up jurors to see that the defendant knew about the condition and CHOSE to ignore it and do other things that were more profitable instead.  This applies to any type of case:  “the driver chose to drive through the red light” or “the doctor chose to ignore patient safety rules when he did x, y, z.” 

2. The unconscious mind does not know the difference between a positive and a negative and therefore will always interpret something as the positive.  For example, if you say “the driver did not stop for the red light,” the unconscious crosses out the negative and only hears “the driver stopped for the red light.”   Whenever possible, frame your sentences as positives, such as “the driver saw the red light and kept driving.” 

These may seem like small changes, but to the unconscious mind, they make a huge difference.

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