Outside Counsel Corner"Eight Jury Trial Tips – Trying Cases in Big-City Courtrooms" Paul W. Sweeney, Jr. [Read Bio] Many clients believe that corporate defendants should avoid jury trials in large urban areas whenever possible. This is particularly true where plaintiffs are individuals or groups of individuals, and the urban area has a highly diverse jury pool. Is a jury trial a recipe for a defense disaster under these circumstances? Not necessarily so. In fact, in several recent trials, the Los Angeles office of K&L Gates has convinced urban juries to render defense verdicts on behalf of our large corporate clients, despite the odds against them. The cases ranged from contract breach, to discrimination, to toxic tort, to products liability. Here are eight tips for trying cases before urban juries that may be of value to other corporate defendants facing trials. Tip No. 1Corporate defendants must be willing to draw a line in the sand beyond which they will not be pushed, especially where they believe no wrongdoing occurred. Certain corporate defendants get the reputation for being a “soft touch” when they repeatedly settle claims for “nuisance” value (which, in the Los Angeles area, can range from $25,000 to $150,000), or more, and they find themselves the victims of repetitive lawsuits. A sure way to force the plaintiffs’ bar to think twice about suing is for a corporation to demonstrate that it is not afraid to defend cases in jury trials, and to commence trials in the right cases. Tip No. 2Take extreme care in jury selection. Attorneys conducting the selection must be well prepared. This is not a “shoot-from-the-hip” exercise. What you learn about the jury panel is an important piece of the fabric that makes for a successful defense. The jury pool is often quite diverse in urban areas. Recently, in a discrimination trial in Los Angeles, among the approximately forty-five jurors brought to the courtroom, there were numerous members of racial and ethnic minorities, nearly half were women, at least four were openly gay, and approximately 20 percent of the jurors had some form of a speaking accent. During voir dire, many prospective jurors stated that they either had been accused of discriminating against others or believed they were the victims of discrimination, including age, national origin, race, and gender discrimination. One woman believed she had suffered discrimination on multiple occasions because of her Middle Eastern accent. The careful development of probing questions helped us learn important things about the jurors, and allowed us to “educate” them about the defense perspective. The jury panel was very open about discussing the subject of discrimination. They responded candidly to questions like: How did you feel when you were accused of discrimination? How did you defend yourself when you were accused of discrimination? What did you do when you believed you were discriminated against in order to have your accusations addressed by the employer? Do you believe that an employee who is having performance problems will sometimes respond by accusing the supervisor of discrimination? Do you believe that before you accuse somebody of discrimination you should have pretty good evidence to support your claim? Do you think it is wrong to ask a person with an accent to repeat him/herself if you are unable to understand what they are saying? These questions, and the answers we received, helped us shape the way we presented the successful defense. Tip No. 3Do not dance around the uncomfortable or potential problem areas with the jury during voir dire. Address potential jurors squarely, without trying to improperly “pre-condition” them. Do not stereotype jurors. The key to success is finding jurors who are relatively well-educated (in school, “on the street”, or through experience), who have fairly steady employment, who have been around long enough to “know the way the world works,” and who have lived in urban environments long enough to know that in this modern world, people and corporations should be judged by their conduct in the circumstances at issue, not by pre-conceived and antiquated notions concerning how they “always” behave. Tip No. 4It is common when cross-examining a plaintiff to “walk on eggshells,” seeking to avoid being too aggressive with a person who is already claiming to have been victimized. Sometimes that is the right approach. Sometimes it is not. Knowing which approach to take is critical. In the appropriate circumstances, we politely, but nevertheless firmly, “go for the jugular” in cross-examination of the plaintiff. We point out all of the plaintiff’s deficiencies and shortcomings. We focus on lapses in the plaintiff’s memory, inconsistencies, illogical explanations for logical events, and any puffery that attaches to their claims. We also do not hesitate to bring out relevant testimony bearing on the plaintiff’s credibility, even if some of that testimony is controversial or unsavory. Comprehensive and thorough cross-examination of the plaintiff is often pivotal to the outcome of the case. Urban jurors understand that it is the responsibility of defense counsel to zealously examine the plaintiff, challenge his/her credibility, and bring out all of the weaknesses in the plaintiff’s case. While jurors do not expect defense counsel to be rude or overly aggressive, they understand the need for thorough and sometimes embarrassing cross-examination as a part of the defense. Jurors we interview following our trials often state that they expected the plaintiff to be subjected to stiff cross-examination. Tip No. 5Don’t get caught up in the technology trap. It is often said that urban jurors can pay attention only when they are entertained. Thus, an attorney should provide a heavy dose of pictorial and graphic presentations. Sometimes this is right, but many times it is wrong. In one recent case, when jurors were interviewed after the trial, they said they thought that a plaintiff’s slick visual presentation sought to manipulate the facts by unfairly editing content, and it caused the jurors to distrust the plaintiff’s attorney and the plaintiff’s case. On another occasion, the jurors were clearly agitated by the multiple malfunctions of the computer and television equipment used by the plaintiff, and the sub-standard audio and visual quality of the presentation. Tip No. 6Getting the jury instructions right can mean the difference between success and failure. Too often, attorneys view jury instructions as an afterthought. They send their associates into the library or on-line to find the “form” jury instructions, and they submit every instruction they think may be relevant, for fear they may have left something out. Many times, the instructions submitted are contradicted by other submitted instructions, or key issues remain unaddressed. Take the time to review carefully the jury instructions that you submit, and be prepared to argue why the plaintiff’s instructions are inappropriate under the circumstances. You can almost be sure that urban jurors will focus on the instructions, and they will attempt to follow them. Tip No. 7Jurors decide cases based upon the facts, and the jury instructions they receive. A common myth is that jurors often “go with their gut” in deciding cases, and often ignore the facts and the law. This may happen on rare occasions.. However, our experience has been different. Urban jurors typically state in post-trial interviews that they attempt to learn the truth by listening carefully to the testimony, studying the demeanor of witnesses, and reviewing relevant documentary and other evidence. The single most important factor influencing their decision is witness credibility. Additionally, jurors listen carefully to the judge’s instructions, and try to follow those instructions. Some experts believe that a more detailed special verdict form favors the defendant because it forces jurors to go through the steps and analysis necessary to reach a reasoned decision. While this approach may work in some circumstances, we do not believe it is applicable in every case. We often opt for a simple four-question special verdict for each defendant, relying on the “keep it simple stupid” philosophy to avoid confusion and to enable the jury to focus on the big picture. Tip No. 8Do not assume that urban jurors are stupid or careless. If you are careful in the jury selection process, the majority of jurors you select will know their responsibilities and will try to follow the judge’s instructions to reach the right result. Most importantly, if defense counsel has reminded them (repeatedly) that the plaintiff has the burden of proving that his or her version of the facts is more likely than not the true facts, jurors will keep this in mind in weighing the evidence. When we interview jurors following trials, we learn that they had been able to spot the majority of the strengths and weaknesses of the witnesses and each side’s case. Their number-one factor in deciding the case, again, is usually witness credibility. CONCLUSIONWhile jury trials in big-city courtrooms can be nerve-racking and present unique challenges, if a defendant resolves to vindicate its position in court, picks a reasonably educated jury, firmly challenges the plaintiff’s version of the facts, puts on a legitimate defense through credible witnesses who level with the jury, and sees that the jury is properly instructed, the likelihood of a successful outcome will increase substantially.
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