Lawyers who handle jury trials prepare their cases typically by reviewing all of the depositions, all of the issues of damages, the pleadings, the written discovery, the law that applies and the jury instructions that may be used. That would be just the start. Some lawyers, like me, abstract all of the depositions, which mean a summary by page is made for each deposition transcript. That allows the lawyer to both read again the transcripts of depositions that may have been taken some years ago and now refresh the memory of the lawyer who may call the witness either as a witness on direct examination or a witness that may be called by the opposition and cross-examined during the trial.
Lawyers spend a lot of time doing all of this work in reviewing the case, meeting with the clients, re-reading the file, the medical records, the photographs and other evidence, the preparation of demonstrative evidence, the preparation of visuals such as large blow-ups or use of computers to generate images for the jury, all the while perhaps spending little time on preparing the case for the jurors in anticipation of what they will discuss in the jury room.
In my practice before trial I utilize the benefits of a focus group, which would be a method to test-drive the elements of the case before an uninterested, unbiased group just like the jury, to evaluate strengths and weaknesses of the case. The discussions that these practice jurors have are many times the same kinds of discussions and deliberations that take place at the end of the trial in the jury room.
In personal injury or medical negligence practice, one of the issues of damages may be pain and suffering endured for a length of time by the plaintiff, the party who brought the lawsuit. It’s important for lawyers to understand and motivate the jurors to discuss the important issues in the jury room. Consider the following example of a focus group jury having a conversation about the very topic pain and suffering:
Juror No. 1: No amount of money would compensate her.
Juror No. 2: I agree. How could we ever consider this?
Juror No. 3: You’re right. It’s very difficult to get a handle on just what is the responsible thing to do.
Juror No. 4: It’s difficult, but does that mean she gets nothing?
Juror No. 1: No, let’s give a fair amount.
Juror No. 3: What is fair?
Juror No. 1: Well, I guess that’s for us to decide, isn’t it?
I thought it was interesting to point out that the jurors are asking each other questions at this juncture in their deliberation. In order to reach a verdict, the jurors are going to have to answer these kinds of questions to have discharged their duties and then, having made a decision, would be able to go home. The point of this is that in preparing the case for trial, the lawyer should be able to anticipate what questions like this will be discussed in the jury room. If the attorneys handling the case — say for the plaintiff who is injured as in this example — would pose these questions during the trial and then answer them emphatically and repeatedly so that the jurors will have those answers when they begin their deliberations.
If the focus group research is developed and analyzed, it would likely prompt the lawyers presenting the case at the real trial to answer the questions during the course of the trial so that these conversations would be more deliberative. In other words, the lawyers would be in a position to influence the direction that the jurors had during their jury room discussions. In this example, the “pain and suffering” conversation would allow the jurors to be more or less predisposed to rely on the attorney’s answers to make up their framework when they consider the issues like pain and suffering when considering damages.
In addition, repetition of these important questions and answers that the jury may use in deliberations should be filtered throughout the course of the trial. This could be done in an opening statement, in direct examination of key witnesses, experts and the plaintiff as well.
In complicated cases, the jurors will tend to favor a defense verdict because they can’t answer the questions that they posed to one another in the jury room. If that’s the case, the plaintiff has failed to make clear the answers to those questions. The theory that has been scientifically demonstrated time and time again is that for a plaintiff to succeed, the case should be made as simple and as straightforward as possible. The more complex it’s made, the less likely the jurors would understand the key features of the case and would lean to the side of the defendant.
Robert Kreisman of Kreisman Law Offices has been handling jury trials, representing individuals, families and businesses for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Bridgeport, Canaryville, Wicker Park, Bucktown, Kenwood, Hegewisch), Harwood Heights, Joliet, Crestwood, Forest Park, Blue Island, Rosemont, River Grove, Prospect Heights, Park Forest, Tinley Park and Western Springs, Ill.
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