Wednesday, May 27, 2009

Recession Revelations & Your Jurors

The continuing recession and revelations it brings about corporate and other wrong-doing – be it excesses, or cavalier squandering of the ordinary citizen’s financial well-being – have significantly altered juror attitudes. Jurors are no longer taking the position of “What the heck, everybody does it,” rather they are holding lawyers and all parties in the action to a higher standard. For example, taking advantage of others by virtue of contractual technicalities and loopholes is less viewed as a flaky but ordinary way of operating in the world, and more as an unacceptable moral failing. Issues of abandonment and betrayal are rarely excused. Turning one’s back on others and leaving them in a helpless or difficult situation, is virtually always unacceptable.

Jurors are favoring lawyers who express sincerity and genuine belief in their client’s cause, are well prepared, and respectful towards the legal process and all involved. Jurors are less convinced by lawyers who focus on the “letter of the law” and more persuaded by those who incorporate the “spirit of the law” into their arguments. Jurors are more attuned to anything that smacks of a lawyer’s attempt to pull the wool over their eyes, and likely to quickly discredit that lawyer and his or her arguments.

Jurors appear to be more favorable towards the lawyer who admits to problem areas of a case, and then proceeds to give common-sense, believable reasons for those actions. Jurors do not appear to be looking for perfection, or favoring only those “without sin,” but rather for honesty and other “straight-shooter” type qualities, which are quintessential American ideals - sorely lacking these past few years in many a juror’s mind.

Friday, May 1, 2009

The Nuisance of Jurors

Trials would be so much easier if you didn’t have to deal with jurors. Jurors wander off mentally during your most critical testimony, they’re distracted by an itch or a lawyer’s mannerisms, they’re irritated by an expert’s vocal tone, they disapprove of a witness’s attitude. Jurors misunderstand the law, making it up as they go along. Jurors impose their own version of what’s right or wrong, what’s negligence, what should be the standard - be it of care, warning, safety or other. Jurors deliberate as a group, which introduces the whole notion of group dynamics, complicating the matter further. Need I go on?

But jurors must be dealt with, and more importantly, we must deal with how they come to the decisions they make. For the better you can determine or discern what impacts those decisions, the more likely you are to succeed at trial.

This is where intense, targeted use of the pre-trial focus group can be especially valuable. Instead of letting focus group “jurors” elect a foreperson and talk over each other to arrive at a consensual decision, have a facilitator ask probing questions of each and every juror, to analyze how each juror arrives at their various conclusions, as well as observe how group dynamics are affecting those conclusions.

Knowledge is power.