Understand Jurors’ Desire to Improve Things

Faced with a number of options as jurors are when deliberating a verdict, people will often make decisions by translating each option into how they would feel emotionally about the anticipated outcome. The option that yields the most preferred emotional outcome is more likely to be chosen.

For example, improving safety is both a practical and moral action. Any verdict that encourages companies to improve safety feels good. The thinking goes roughly like this: “If we can’t make them care about safety because it’s the right thing to do, maybe we can make them care about safety because it’s the more profitable thing to do.” Being virtuous, on the side of what is right for the common or greater good, makes it easier for jurors to justify huge verdicts. People can feel good about themselves making such a decision.

Plaintiff’s counsel can use the above to help get the desired outcome. Defense counsel can use an understanding of the above to considerably weaken such an argument by pointing out all through the case the many ways in which the company already attends to safety.

There are, after all, two sides to every coin.
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I recently had the pleasure of being interviewed on "Legal Talk Network," produced by the State Bar of Michigan. The subject was connecting with your clients. Here's the interview link:

https://legaltalknetwork.com/podcasts/state-bar-michigan-on-balance/2019/06/connecting-with-your-clients/

How to Work Successfully With a Narcissistic Client

 
Law Practice Management just ran my article on how attorneys can successfully manage a narcissistic client.

Here's the link:

https://www.lawpracticetoday.org/article/work-successfully-narcissistic-client/

The Advantage You Need to Win Your Case

Most lawyers, when they prepare witnesses to testify, are understandably focused on the key substantive issues. They want to make sure the witness remembers important points. Great! But in so doing, lawyers often rely on their prepared questions, leaving little or no room for information not elicited by the lawyer’s direct questions.

As I prepare witnesses to testify, they disclose unexpected information that I then present to the lawyer--often to his/her surprise. Frequently this information has significant impact, either because it is helpful to a winning argument or it permits the lawyer to defuse potentially damaging issues. My ability to get such information is not because of any great magic done by trial consultants, it’s simply the result of a client-centered witness prep approach. Such critical information is just as available to the lawyer and readily obtainable by asking client-centered open-ended questions.

You see, a witness is highly unlikely to come up spontaneously and voluntarily with all you need to know, unless prompted with an open-ended question. Why?

            1) The client may feel obligated to answer your direct question directly

            2) Your direct question may only elicit an incomplete description of the situation

Facilitate your client's giving you all the information you need by asking client-centered open-ended questions. These encourage the client to tell a story, or describe an event, feeling or situation however the client wishes. Such questions generally start with the words “what” or “how” as in; “What about X concerned you?” “How did you come to Y?” A good follow up is – always –  “Tell me more.”

Ask such questions and your client may very well give you the advantage you need to win your case.

The Jury and GenXers

GenXers are getting older. They are the generation bumping up against the Boomers who are slowly but surely on their way out. Which means you are seeing more of them in the jury box – individuals born between roughly 1961 and 1981, who are now in their late 30’s to mid 50’s. They are no longer entry-level hires, they’ve moved up into managerial or supervisor ranks, or commonly, headed off into entrepreneurial ventures of all types and sizes.

Why does this matter to you? 

GenXers are still among the more skeptical, if not downright cynical, generation. Thus, when it comes to liability, GenXer skepticism tends to favor defense because GenXers aren’t particularly emotionally swayed. They require more data, more evidence and the science behind it in order to find liability.

Liability is a major obstacle for plaintiff’s attorney when arguing in front of GenXers, so if your jury box is loaded with GenXers, be sure to back up your every argument with as much documented evidence as possible.

The downside for defense is, once GenXers are convinced of liability--especially GenXers in their late 30s and 40s--they will award higher damages than any other generational group. GenXers believe that people should be held accountable for their own actions. Awarding substantial damages is a way of holding people accountable.

The solution is the same as for plaintiff--but in the opposite direction. As defense, do everything you can to back up your arguments countering liability with documented, “hard” evidence, so as not to be hit with a big award.