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Pandering to a Jury

Those of you who routinely follow our blog will hopefully know where this article is going from its very title. A colleague recently reported that his jury didn't care much for a certain expert's patriotic tie and his "12″ button, referring to the Seattle Seahawks' 12th man, it's supposedly loud fan base. While I would consider myself both patriotic and a huge football fan, I wouldn't normally parade that in front of my jury. Let's face it-we plaintiff attorneys have no credibility before jurors, and we have to work hard to earn that trust for ourselves and for our clients. Famed up-and-coming trial lawyer Nick Rowley of California states as much during voir dire (jury selection), acknowledging that any amount we ask for for our clients is likely to be met with skepticism until we have demonstrated the injury and loss with convincing proof.

In civil cases, the plaintiff has the burden of proving his or her case by a "preponderance of the evidence." Some lawyers mistake this notion for its literal meaning, "more probably true than not true" or "51%". In my experience, no juror understands this to mean anything less than "convincing proof". If I don't feel that a specific injury or loss can be proven convincingly, I'd rather abandon that claim than ask a jury to award it. The loss of credibility for even the smallest part of the claim can ruin the entire claim.

That's why it's critical for clients to tell their lawyers the entire story-not just the parts that sound good, the parts that seem to increase the value of a case, but also the warts. We've all experienced the surprise when a client on the witness stand says something different than he or she told us before the trial. By then it's too late. By being candid about the issue before trial, lawyers can advise clients whether to pursue certain claims...or whether to settle for a given offer. Or, even when the client insists on going to trial, the lawyer can then deal with the weakness in the case during the direct examination of his own client, to soften the blow of that negative issue and weaken the jury's negative perception.

There's an entire industry known as "Jury Consulting", principally involving psychologists who assist lawyers and their clients in presenting cases to juries.They commonly conduct focus groups to gauge juror perceptions about specific issues, and they all say it's critical that the focus group for a particular case be conducted in the community where the trial will take place. While that has certainly rung true in the focus groups we have conducted, there is a certain universal truth that all jurors adhere to-Don't insult our intelligence. And now, as a corollary, Don't pander to us.

The best approach is to simply lay all the cards out on the table and argue with an open hand. Just like in poker, there's no place for cheap tricks or sleight of hand.

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