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Notes – Webinar (“A2L Consulting: 12 Things Every Mock Juror Has Said Ever”)

by merlin on December 9th, 2014
  • Sumo

A2L Webinar – 12 Things Every Mock Juror Ever Has Said

Wednesday, December 9, 2014

 

I only wrote down and took notes on 10 of them (missed a couple), but this was a great refresher, and some wise words to remember!

 

Dr. Lori Kuslansky:

Make-or-break points for a case:

1. “Why did the Plaintiff wait so long to sue?”

Legal reasons (ex. Discovery, issues being appealed, etc.)

May not seem slow at all FROM A LEGAL PERSPECTIVE, but might seem to take a long time from a juror perspective – “When my toe gets stubbed, that’s when I say ‘ouch'”.

Be sure to address this issue, because DELAY IS DEATH TO CREDIBILITY

2.“That doesn’t make sense.”

Same thing: Why did the person put up with the bad situation for such a long time before they did something about it?

3.“How much should we give them?”

Need to be both cause-driven and results-driven, and what about “sending a message”?  This should be addressed from or against, but MAKE IT RELATE TO THE JURY.

  • What does everyone want?
  • How, then, should damages be divided?
    • A method is to ask each juror what they want to award, and divide it by the number of jurors (the #1 way that they do it)

4.“That may be true, but they didn’t prove it.”

  1. Folks have often raised their level of the burden of proof due to exposure to popular media
  2. Can be drawn out through voir dire (ex. asking if they watch crime dramas)
  • Set the stage for the measure of damages and the burden of proof via this (jury selection is a means of juror de-selection)
  • Careful development of the verdict form (needs to be careful wording)

5.“The defense didn’t prove…”

Remember – defense has a psychological burden, even if it isn’t a legal one.

  • Defense may dismiss Plaintiff’s theory WITHOUT ADDRESSING IT.
  • Don’t IGNORE other side’s version.
  • In voir dire, set the stage for this: “Should Defendant prove it’s case, and if so then how?” “Would you be uncomfortable if the defense didn’t produce any evidence?”
  • USE GRAPHICS FOR REFERENCE AND CONSENSUS (they might disagree over their conclusions, but this is something they can all agree they saw)
  • Make sure your numbers add up in a way that jurors can calculate THEMSELVES.
  • Make sure consistent message is conveyed via this graphical information

 6.“Do we have to be unanimous?”

If CONSENSUS is necessary, address that issue in summation (ex. “Everyone can see…” and “Everyone should have all the evidence they need to unanimously award…”)

7.“Where is it in writing?”

Ex. if it must be written, PRODUCE THE WRITING, or ESTABLISH THE TERMS IN THEIR FINAL FORM

  • Demonstrative graphics (including “what it would have looked like if it WERE in writing”)
  • If it is from a deposition, best thing would be to take the actual written document, instead of just reading it or quoting it

8. “We should give them something.”

This urge is driven by a “sympathy factor”, or a Robin Hood urge (ins. company might’ve paid something, but jurors will expect them to pay more after all of that)

  • When one side has less knowledge and control and one side has more knowledge and control, jurors will be more inherently sympathetic toward the one with less.
  • “Do you have any doubt or discomfort awarding nothing if Plaintiff fails to prove their case ENTIRELY”.

9. “It may be legal but it just isn’t right.”

Conversely – “it’s just business.”

Potential to anger jurors, though – make sure that all arrogance is checked at the door.  Address this IN VOIR DIRE.  “There’s nothing the matter with making decisions based on your values and morals, BUT SOME THINGS ARE NOT ABOUT “RIGHT” AND “WRONG”.

“If you have any religious or moral beliefs that might stand in the way of making a decision ONLY based on the law the judge gives you, PLEASE RAISE YOUR HAND.”

To spot moralistic people in jury selection:

  • Tend to be religious (more than usual)’;
  • Tend to be more “law and order”;
  • Tend to be “do-gooders”/SJW – do volunteer work!
  • Do they act in Court like they are coming to do business or coming to play?
  • What kind of reading material/entertainment did they bring?
  • People who seek rule-based environments might tend to need the outside orders, and be a little less flexible in their decision-making
  • More provincial/less educated or informed
  • Do they read? What kinds of things interest them in reading? (“What do you read?  What do you like about it?”)

 10. “I remember that graphic.”

  • Again, something THEY ALL SAW (people remember visual cues better than spoken words)

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