Communicating With Jurors About Money Seminar Power Point


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A PowerPoint providing defense counsel with practical advice on how to counter plaintiff’s counsel’s attempts to maximize damage awards by developing the defendant’s own theme, choosing “low” damage jurors and persuasively attacking damages during closing argument.

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Communicating With Jurors About Money Seminar Power Point

  1. 1. COMMUNICATING WITH JURORS ABOUT MONEY Paul D. McCormick, Esq. Goldberg Segalla LLP 665 Main Street / Suite 400 Buffalo, New York 14203-1425 716.566.5466 Fax: 716.566.5401 Email: [email_address] Website:
  2. 2. <ul><li>The Impact of Rhetoric: From Voir Dire Through Jury Instructions. </li></ul><ul><li>“ Rhetoric” in the legal context connotes “lofty,” “fiery” or “exaggerated” language in the course of zealously representing a client. </li></ul><ul><li>Some rhetoric used during trial is impermissible. </li></ul><ul><li>Yet, rhetoric is defined simply the art of using language effectively and persuasively. </li></ul><ul><li>In the context of communicating with jurors about money, “rhetoric” means using carefully chosen words or themes as part of a trial strategy to persuade a jury to either maximize or minimize a damage award. </li></ul>
  3. 3. <ul><li>Because juries decide cases and award damages on a gut level, emotional basis, a winning trial strategy must present the case on a gut level, emotional basis. </li></ul><ul><ul><li>How? Find the emotional, gut level basis of your case, develop it into a theme, and incorporate it into every part of the case, from voir dire to opening statement, to proof, including damages, to closing argument. </li></ul></ul><ul><li>Weave your theme into a compelling story that will motivate and inspire the jury, then provide the jury with valid, logical, factual documentation to support the emotional, gut level human basis of your damages case. </li></ul><ul><ul><li>If the focus is on Δ’s wrongdoing, use rhetoric to emphasize with the jury that the wrongdoing is motivated by “greed,” “indifference,” “dishonesty,” “corruption” or “selfishness”. </li></ul></ul><ul><ul><li>Another theme can be the Δ’s “failure of responsibility,” with which rhetoric is especially effective, especially in closing argument. </li></ul></ul><ul><li>However, there is no need to use “lofty”, “fiery” or “exaggerated” rhetoric. Indeed, doing so may backfire. Don’t overdo it. It is still advocacy and persuasion that sells damages. </li></ul><ul><ul><li>There are catchy phrases like, “Pain is the tool of torturers,” and “Men have asked for death -- no one has asked for pain.” </li></ul></ul><ul><ul><li>These examples can be effective “conditioners” for the “ask,” but these examples and analogies can never replace a low-key, emotional message that sparks compassion, empathy, anger, and a desire to help lift up someone who has been laid low by a negligent or intentional act.” </li></ul></ul>Plaintiff’s Perspective
  4. 4. <ul><li>Although there is sometimes less incentive to talk about damages so as not to detract from the case on liability, somehow, some way, the case theme has to deal with the damages. </li></ul><ul><ul><li>They are part of the story of the case. They cannot be ignored. </li></ul></ul><ul><ul><li>Using rhetoric can drive the theme home. </li></ul></ul><ul><li>For example, in cases where negligence has been admitted, thereby freeing up counsel to focus on damages (albeit not exclusively if causation has not been admitted), counsel may express to the jury that although a ∏ may be entitled to reimbursement, that does not mean that a windfall profit from the lawsuit is proper. </li></ul><ul><li>And, just like ∏’s counsel, Δ's counsel can use “responsibility” as a theme to minimize damages. </li></ul><ul><ul><li>If the ∏’s actions show a lack of responsibility such as shared negligence and missed doctor’s appointments, some jurors will give less money: “If your client doesn’t care, why should we?” </li></ul></ul><ul><ul><ul><li>Indeed, evidence of missed doctor’s appointments, and other instances of failure to mitigate damages, gives Δ's attorney a further opportunity to carry the rhetoric over into jury instructions by discussing the jury charge during closing argument. </li></ul></ul></ul><ul><ul><ul><li>However, using the failure to mitigate damages approach is best saved for those cases where it appears that the ∏ is significantly overreaching in terms of his or her injury claims. </li></ul></ul></ul>Defendant’s Perspective
  5. 5. B. Voir Dire: Identifying “Damage” Jurors. <ul><li>“ Picking a sympathetic jury is actually a misnomer. The art of jury selection is an exercise in “deselection.” Each attorney is most concerned with excluding people whom she believes will be least likely to side with her case.” </li></ul><ul><li>-- Chris F. Denove and Edward J. Imwinkelried, “Jury Selection: An Empirical Investigation of Demographic Bias” </li></ul>
  6. 6. <ul><li>The above concept accurately describes jury selection. </li></ul><ul><ul><li>Possibly reflective of the fact that the system is set up to provide the attorneys with peremptory challenges to remove prospective jurors who may be unfavorable to your case, or favorable to the opponent’s case, which is often the same thing. </li></ul></ul><ul><li>Although an attorney is looking to exclude jurors considered to be “bad” to his/her case in terms of both liability and damages (when both are at issue and the trial is not bifurcated), unless your case is a slam-dunk on liability, excluding “bad” damage jurors is vital to the outcome of the case. </li></ul><ul><li>But identifying bad jurors is not as easy as you think. In fact, a bad juror for one case may be a very favorable juror for a case you will be trying two weeks later. </li></ul><ul><ul><li>A bad juror is someone whose belief system does not fit with the issues in the case at hand. </li></ul></ul>
  7. 7. <ul><li>Key Questions To Identify “High” vs. “Low” Damage Jurors. </li></ul><ul><li>Jurors’ preexisting feelings, needs, attitudes, experiences, values and beliefs can be important determinants of their verdicts. </li></ul><ul><ul><li>Thus, perhaps more important than inquiring into a prospective juror’s “demographic factors” ( e.g. , age, race, occupation) is inquiring into the juror’s “core belief system.” </li></ul></ul><ul><li>The following slides provide a non-exhaustive list of questions designed to identify a juror with particular feelings or beliefs that may indicate that he or she would make a “high” or “low” damage juror: </li></ul><ul><ul><li>Questions designed to elicit a potential juror’s feelings about tort reform. </li></ul></ul><ul><ul><li>Questions designed to test the juror’s tolerance for awarding large sums of money. </li></ul></ul><ul><ul><li>Questions designed to condition the jurors during jury selection that your case is about money damages (not just tangible damages, but intangible damages as well) and to get the jurors invested in your case by impressing upon them that they are a part of something special. </li></ul></ul><ul><ul><li>“ Catchall” questions designed to elicit additional information. </li></ul></ul>
  8. 8. <ul><li>Some questions can elicit a potential juror’s feelings about tort reform, since people with bias toward litigation may be considered to be “low” damage jurors (“bad” ∏ jurors and “good” Δ jurors): </li></ul><ul><ul><li>How many of you feel that lawsuits in general have a negative impact on you, your company, or someone close to you? </li></ul></ul><ul><ul><li>Does anyone feel corporations are treated unfairly by our justice system? </li></ul></ul><ul><ul><li>Does anyone feel that lawsuits in general do more harm than good for society? </li></ul></ul><ul><ul><li>If you were injured by someone else’s negligence, would you file a lawsuit? </li></ul></ul><ul><ul><li>Have you or anyone you know had to deal with a frivolous lawsuit? Might that experience affect your judgment in this case? </li></ul></ul><ul><ul><li>How many people feel that jury awards in the past have been too high? Would that cause you to hold down the award in this case? </li></ul></ul><ul><ul><li>Does anyone feel that awarding substantial amounts for pain and suffering is “ridiculous” or “outrageous”? </li></ul></ul><ul><ul><li>How many of you would support a change our civil justice system to limit or cap the amount of money a ∏ could be awarded? </li></ul></ul>
  9. 9. <ul><li>Similarly, in cases involving substantial damage claims, the following questions are designed to test the juror’s tolerance for awarding large sums of money. </li></ul><ul><ul><li>Have you ever heard or read about a million dollar award? </li></ul></ul><ul><ul><li>What do you think about a lawsuit where someone is awarded a million dollars? </li></ul></ul><ul><ul><li>Have you ever thought to yourself, a million dollars is too much, no matter what happened to the person? </li></ul></ul><ul><ul><li>Did you ever say to yourself, “What could happen to someone that they would be awarded a million dollars?” </li></ul></ul><ul><ul><li>Do you think you could ever award someone a million dollars? </li></ul></ul><ul><ul><li>Do you have any limits in your mind as to the amount you would be willing to award someone for an injury? For example, if the evidence indicates that [∏] has been damaged in the amount of one million dollars as a result of the loss of past and future wages and emotional and physical suffering, would you be unable to award that sum because it seems like such a large amount of money? </li></ul></ul><ul><ul><li>How do you think you would feel if you sat as a juror and ended up awarding a large sum of money? </li></ul></ul>
  10. 10. <ul><li>Other questions, from a ∏ attorney’s perspective, can be designed to condition the jurors during jury selection that your case is about money damages (not just tangible damages, but intangible damages as well) and to get the jurors invested in your case by impressing upon them that they are a part of something special: </li></ul><ul><ul><li>Is there anyone who cannot afford to spend two to three weeks on this most important case? </li></ul></ul><ul><ul><li>Is there anyone who believes that a person who has been very seriously injured has no right to sue for money damages to compensate for past and future pain and suffering, past and future income, and past and future medical expenses? </li></ul></ul><ul><ul><li>Is there anyone who would be so discomforted by color photographs of the ∏ showing his very serious injuries that they would rather not sit on this case? </li></ul></ul><ul><ul><li>Is there anyone who feels that regardless of how extensive the lost earnings, past medical bills, past suffering, future earnings, future medical bills, and future suffering, they could not award damages over a specific figure set in their minds? </li></ul></ul><ul><li>Finally, “catchall” questions : </li></ul><ul><ul><li>Given the kind of person you are, what is it about you that might help you be a juror in this case? </li></ul></ul><ul><ul><li>Given the kind of person you are, what is it about you that might make it a little harder for you to be a juror in this case? </li></ul></ul>
  11. 11. 2. Sequencing of Questions For Positive Presentation of Monetary “Awards”. <ul><li>Go beyond asking jurors generally about their receptiveness to the various categories of damages ( e.g. , past/future pain and suffering). </li></ul><ul><ul><li>Break down the damages into distinct subcategories to educate the jurors to the idea that all of these areas are part of ∏ ’s claim. </li></ul></ul><ul><ul><li>Then you can phrase specific questions based on the subcategories. </li></ul></ul><ul><li>Also, by starting with questions concerning areas of damage with which jurors are most likely to be comfortable, such as the tangible items of damage ( e.g. , medical bills) which most jurors would have no problem awarding if the facts warranted, you can get the jurors comfortable with the concept of awarding money damages before moving on to the more difficult areas of intangible damages (pain and suffering). </li></ul><ul><li>Finally, by phrasing the questions in terms of what trouble the juror would have with a particular category of damage, you are more likely to get an honest answer than if you ask them to agree with a statement you make (“Would you have any trouble awarding lost wages?”). </li></ul><ul><ul><li>So leave the questions open-ended to get the jurors to share their feelings with you rather than just answering “yes” or “no.” </li></ul></ul>
  12. 12. 3. Cause Questions For Removing Jurors On Damages Issues. <ul><li>If a potential juror appears to be hostile to your side, rigorously (but politely) question him/her to lay the basis for a challenge for cause. </li></ul><ul><ul><li>If the attorney succeeds, a peremptory challenge is saved. </li></ul></ul><ul><ul><li>If not, the attorney uses a peremptory challenge that had already been allocated. </li></ul></ul><ul><li>Here are a couple of questions from a ∏ ’s perspective which, if answered in the negative, would likely result in a successful challenge for cause: </li></ul><ul><ul><li>Could you consider awarding substantial damages if the ∏ has proven the case by a preponderance of the evidence? </li></ul></ul><ul><ul><li>Do you believe in punitive damages? </li></ul></ul><ul><li>From the Δ ’s perspective, the Δse does not ask questions until the ∏ ’s attorney has already questioned the seated panel. </li></ul><ul><ul><li>So, the strategy is to either (1) rehabilitate favorable jurors who are likely to be challenged by the ∏ ’s attorney or (2) get a “low” damages juror to appear to be favorable to the ∏ , at least on the issue of liability, in order to avoid having that juror challenged so there is at least a chance the jury will compromise on liability in exchange for a lower damage award. </li></ul></ul>
  13. 13. 4. Developing and Using Jury Profiles To Steer Damages Negotiations In Deliberations. <ul><li>A “juror profile” is: </li></ul><ul><ul><li>A description of both desirable and undesirable jurors, </li></ul></ul><ul><ul><li>Constructed from community surveys and/or juror questionnaires, </li></ul></ul><ul><ul><li>Which provide: </li></ul></ul><ul><ul><ul><li>Demographic </li></ul></ul></ul><ul><ul><ul><li>Attitudinal and/or </li></ul></ul></ul><ul><ul><ul><li>Sociopsychological data. </li></ul></ul></ul><ul><ul><li>The demographic factors usually include: </li></ul></ul><ul><ul><ul><li>Age </li></ul></ul></ul><ul><ul><ul><li>Gender </li></ul></ul></ul><ul><ul><ul><li>Race </li></ul></ul></ul><ul><ul><ul><li>Income </li></ul></ul></ul><ul><ul><ul><li>Education </li></ul></ul></ul><ul><ul><ul><li>Occupation. </li></ul></ul></ul><ul><li>As we’ll now discuss, there are both advantages and disadvantages of relying on juror profiles. </li></ul>
  14. 14. <ul><li>There are advantages to relying on a juror profile. </li></ul><ul><ul><li>It avoids asking jurors embarrassing questions. </li></ul></ul><ul><ul><li>It lessens the risk of being misled by untruthful juror responses. </li></ul></ul><ul><ul><li>It circumvents time/scope restrictions placed by the trial judge. </li></ul></ul><ul><ul><ul><li>The lawyer who has constructed juror profiles needs only to obtain general background and demographic information, the kind of information about which judges are most willing to allow inquiry, and the kind of information about which jurors are least likely to lie. </li></ul></ul></ul><ul><ul><li>It frees the attorney to use voir dire for other purposes, e.g. , establishing a rapport or educating jurors about legal principles. </li></ul></ul><ul><li>I believe that rapport and education are the most important. </li></ul><ul><ul><li>When the attorneys are given time restrictions by the particular venue/judge, the more time they can spend on establishing rapport or educating jurors, as opposed to asking traditional voir dire questions, the better chance they have of persuading the jury on damages. </li></ul></ul><ul><li>In terms of communicating with jurors about damages, since the credibility of the attorney will effect whether the jury is more inclined to give or not give money to the ∏, an attorney would do well to devote as much time as possible with the jury toward this purpose during voir dire. </li></ul>
  15. 15. <ul><li>However, there are disadvantages to relying on juror profiles. </li></ul><ul><ul><li>Demographic factors alone rarely predict how individual jurors will vote in specific cases. </li></ul></ul><ul><ul><ul><li>They can never take into account the interactive, reasoning process that brings a group of six or twelve people to a decision. </li></ul></ul></ul><ul><ul><ul><li>Any juror “profile” is an abstraction, which may fit the “most ideal” or “least ideal” juror well; but, such a profile will miss the complex combinations of traits and attitudes among the individuals in your jury pool. </li></ul></ul></ul><ul><ul><li>At its worst, profiling can be a more sophisticated version of the stereotyping found in racist and other simplistic thinking modes. </li></ul></ul><ul><ul><ul><li>With respect to stereotyping, not only can it be considered a shortcut for the lazy lawyer unwilling to put the time and effort into jury selection in order to get the right people to serve on the jury based on their life experiences and core values, it is constitutionally prohibited under Batson v. Kentucky and its progeny to use race and gender, two of the aforementioned demographic factors, as a basis for exercising a peremptory challenge during jury selection. </li></ul></ul></ul>
  16. 16. <ul><li>Because of these disadvantages, as well as others not mentioned, it is advisable to use juror profiles with caution by treating them as only one tool in the process of jury selection. </li></ul><ul><ul><li>Juror profiles are tools that can help the attorney identify fertile areas for voir dire examination. </li></ul></ul><ul><ul><li>They are tools that need to be supplemented with information about the actual jurors through voir dire and which should not be employed at the expense of the lawyer’s judgment. </li></ul></ul><ul><li>The same holds true for juror questionnaires. </li></ul><ul><ul><li>It is dangerous to make snap decisions about the fairness of a juror based only on the written answers. </li></ul></ul><ul><ul><li>The real purpose of the questionnaire is to allow the attorney to ask good follow-up questions. </li></ul></ul>
  17. 17. <ul><li>One use of juror profiles is to steer damages negotiations in deliberations. </li></ul><ul><ul><li>In other words, to affect the interplay among the deliberating jurors in order to either assist the jury as a whole in awarding substantial and/or intangible damages or to bring about a compromise that will minimize a damage award, as the case may be. </li></ul></ul><ul><ul><li>Generally, as a ∏ attorney, you want a jury made up of persons who will be either good damage jurors in the first place or susceptible to being influenced by the emotions and sympathy of the ∏’s case. </li></ul></ul><ul><ul><ul><li>Even one bad damage juror can force a compromise, e.g. , by going along on liability in exchange for a lower damage award. </li></ul></ul></ul><ul><ul><ul><li>From the ∏’s attorney’s perspective, each juror is important and can significantly lower the verdict. You must arm your favorable jurors with concrete ways to argue for money in the jury room. </li></ul></ul></ul><ul><ul><li>Of course, Δ se attorneys must also arm the jurors, providing them with evidence and arguments for compromise. </li></ul></ul>
  18. 18. C. Persuasion/Communication Techniques To Influence Damage Determinations. <ul><li>“ When it comes to awarding non-economic damages, jurors often find themselves lost at sea without a compass; measuring quantities such as pain and suffering, loss of consortium, and emotional distress are exercises in subjectivity that jurors often struggle to accomplish with any degree of confidence.” </li></ul><ul><li>-- Harry J. Plotkin, “Appraising Intangibles: </li></ul><ul><li>How Jurors Award Non-Economic Damages” </li></ul>
  19. 19. <ul><li>Because of the foregoing situation, ∏ attorneys need to act as a guide for the jury, beginning in voir dire and carrying over through from opening to closing. </li></ul><ul><ul><li>Since there is evidence that damage awards are influenced by the amount requested, part of being a guide, especially in closing argument, is for the ∏ attorney to suggest an amount the jury should award in damages. </li></ul></ul><ul><ul><ul><li>This is referred to as “anchoring and adjustment,” or simply “anchoring”. </li></ul></ul></ul><ul><ul><ul><li>Studies have found that attorneys’ award recommendations act as psychological anchors and increase or decrease (depending on the value of the anchor) the size of compensatory awards compared with when no recommendation is offered. </li></ul></ul></ul><ul><ul><ul><li>Awards generally increased as the ∏’s request increased, although [one study] found that an extreme ∏ request boomeranged and reduced awards. </li></ul></ul></ul><ul><ul><ul><li>Lower recommended award amounts specified by the Δse tended to produce lower awards than did higher recommended amounts, although a $0 rebuttal boomeranged and increased awards. </li></ul></ul></ul>
  20. 20. <ul><li>Because Δ se counsel are often hesitant to recommend a specific amount to the jury, for fear that it would be used by the jury as a floor, damages should still be addressed in order to avoid leaving the jury with only the ∏ attorney’s suggested award with which to work. </li></ul><ul><ul><li>An artful and subtle way of persuasively attacking damages is to educate and provide a path for the jurors to come to their own damages number by demonstrating how the ∏ and his or her experts are exaggerating damages. </li></ul></ul><ul><ul><li>For example, on cross-examination of the ∏’s damage expert, Δ's counsel can demonstrate that, although the ∏ is injured, he or she has suffered less functional harm than suggested by the opposition, thereby demonstrating to the jury that the effect of the ∏’s injuries can be reduced or reversed and, therefore, the damages should be lower. </li></ul></ul><ul><ul><li>In addition, albeit not a direct attack on damages, during closing argument, the Δ se attorney can remind the jury not only about the fact that the ∏ has the burden of proof on liability and damages (and that the jury cannot award damages if the ∏ has failed to meet that burden) but also about its promise when it was sworn to keep an open mind, thereby moving the jury’s mind beyond emotionalism so it can decide the case on the law and the facts, which may result in a no cause verdict on liability or a lower damages award. </li></ul></ul>