“One ought to hold on to one's heart; for if one lets it go, one soon loses control of the head too.”
In other words, once emotion comes into play, fact and reason go out the door. For at least one side of the courtroom, that is the precise goal. For the other, the goal is to combat it, but if you cannot beat them, then you must learn how to join them. What does that mean?
There are several emotions that can often play a role in jury trials: anger and sympathy being chief among them.
“Can I see another's woe, and not be in sorrow too? Can I see another's grief, and not seek for kind relief?”
— William Blake
Many attorneys are concerned about the role of sympathy in jury trials for fear that it will dictate how the jury rules. This is a well-placed concern in cases involving a truly helpless victim (such as a newborn in a “bad baby case”).
However, decades of jury research through mock trials and post-trial interviews of actual juries show something different in many other instances: that jurors measure a party’s actions by what they knew or should have known and what they did or failed to do about it based on what they knew (i.e., knowledge and control). If the party knew too much (or should have known) and did too little, for example, it trumps sympathy.
For example, a journeyman electrician and popular, well-liked football star, was engaged to his high-school sweetheart. He was tasked with cleaning the electrical workings on a ship on a fast turnaround. The floor of the ship had salty sea water. He was to clean high-voltage equipment. He didn’t check if the electricity was on or off (“tagged out”) and did the unthinkable – cleaned the equipment with a metal brush, while standing in salt water. Sadly, the power was not turned off and he was almost killed by the electrical shock that resulted. Miraculously, he survived, but was in very bad shape, and no longer the baby-faced young man, but a disfigured, disabled one. Although he was highly sympathetic, the yardsticks of knowledge and control yielded a failing grade. Any housewife knows not to mix electricity and water, let alone salt water. Anyone knows this from common sense, so while they were greatly sympathetic, jurors faulted him for engaging in such risky behavior. As a result, their damages award was significantly discounted for his contributory negligence. Although they also blamed a failure in supervision, his own actions undermined sympathy for him and the result.
A retired school-bus driver dreamed of driving around the country with his wife in an RV in their golden years. Before departing for such a trip, he realized he needed to change one of the tires. Unlike tires on a typical car, tires on this vehicle clearly required – as would those on a school bus – special procedures to avoid injury, such as placing chains on the tire and other precautions. Sadly, despite his years of professional experience with a bus that required a similar procedure, he cut corners and simply approached changing the tire as if it was on a VW bug. It exploded and nearly killed him. He was no longer going to tour the country. He could hardly walk and had significant and permanent brain damage. His wife, a nurse, was on permanent duty to care for him. Again, while some felt sympathy, jurors used the yardstick of knowledge and control, concluding he should have known better and exercised more appropriate caution. Goodbye windfall.
So, if you represent the Plaintiff, before you seek sympathy (or damages), first hold a mirror up to the actions of your client to consider what they knew or should have known, and what they did or failed to do. To the extent you can minimize these for your client and increase them for the defense, the better you will do.
Similarly, defendants may be assumed to be more knowledgeable and powerful and to have an obligation to be so, but being able to show a lack of access or ability for control can diminish liability, and in turn, damages. For example, what was the state of the art? What was the basis for your client’s beliefs and actions? Why was that reasonable and keeping with industry standards? What lack of control did your clients have over changes? Why wasn’t the “ideal” possible”? Often times, jurors will believe that profits motivated defendants’ actions or inactions, putting profits over safety, for example. This in turn often leads to the most powerful emotional driver in litigation: anger.
One of the most potent drivers of jury decisions is anger, whether in deciding liability, awarding compensatory damages, or most relevantly, punitive damages. Even in cases in which punitive damages are not a real option, jurors often express their punitive emotions by awarding higher compensatory damages. One of the best ways to move a jury is to move them to anger and vice versa.
Angry jurors are more committed to their position, loath to abandon it, and prone to accelerate the amounts to award, thereby raise the ceiling, while less likely to want to listen to reason or facts. While facts, if they do seep in somehow, are a powerful way to combat anger, failing to address the causes of anger is a risky approach.
Anger shows you care. One cannot get angry about something one doesn’t care about, so the trick is to discover what matters to the jury. In order to access their anger – or overcome it – you must know the trigger. What do people care about most? Themselves. They ask, “What if that was me? Or my child?” “Can that happen to me?” “What if they don’t fix that problem?” Next, people care about greed and unfairness, particularly when those in power take advantage of those who are not.
For example, a young construction worker working on the roof of a building in which a sky light was under construction did not notice the open hole and fell through, suffering permanent brain injury. Plaintiff’s counsel could display safety rules and OSHA guidelines and the like, as well as medical records, but none of that promised to anger the jury outright. It would only make them think. The goal was to infuriate the jury. How? By having an expert testify about the proper way to secure the hole – including some plywood and some 2x4s blocking access to it – and then, marching those items into court during summation and showing the Home Depot receipt for about only $80.00. Once angered by the callous cost-cutting of the owner, jurors were angry that it would have taken so little to prevent so much harm, and showed their anger honestly in the currency of jury anger by awarding significant damages.
As a defendant, there are ways in which one can inadvertently anger jurors and thus, move them in the wrong direction. This often occurs when counsel considers facts without considering the emotions that can naturally attach to them. While the facts in a vacuum may seem very convincing, they can backfire in the context of jurors’ feelings. For example, while it may be true that an M.I.T. study shows that women make less in the workplace largely due to their own work/life choices, how do real people react to that? By saying that since women are the ones who have babies, employers should make adjustments to level the playing field by taking that into account. Or, say that an industry study shows that most people in an industry do precisely what the defendant did in the case, but jurors find that behavior objectionable. In that case, jurors will use the verdict as a means to correct the industry, starting with your client. In another instance, in order to refute claims of “pain and suffering” of passengers on an ill-fated flight, expert testimony may show, that depressurization in the cabin results in hypoxia, which causes a mild sense of euphoria and feeling “high” before passing out and eventually dying due to lack of oxygen as a way to say that people on a crashing flight didn’t suffer. Try selling a bridge. Even if true, jurors are likely to storm the defense counsel’s table rather than accept this factual position as helpful. Instead, they ended up mocking it and displaced it with their own disaster fantasies of what the last 18 seconds of life was like for the poor people on the doomed flight on their way down. The expert testimony backfired and made them angry.
Skilled plaintiff attorneys tend to know how to dial up emotions. They know how to include details that bear the ring of truth, words that touch the soul, and images that relate to jurors’ own lives. It is usually the defense that needs greater awareness in this realm. When one considers presenting only the facts, they are giving their opponent a great advantage. Instead, consider also how the facts will play on jurors’ feelings. For the defense to succeed, it must consider how the events impacted everyone involved as well as how the verdict may impact everyone involved, and then, how all of that may impact the jury. It may be tedious, but failing to do so is perilous and failing is not a good feeling.
Other A2L Consulting resources related to jury communications, jury consulting and storytelling:
- WATCH NOW: Storytelling for litigators webinar
- DOWNLOAD: Storytelling for litigators e-book
- Are You Smarter Than a Soap Opera Writer?
- Don't Be Just Another Timeline Trial Lawyer
- Your Trial Presentation Must Answer: Why Are You Telling Me That?
- Every Litigator Should Watch Scott Harrison Deliver This Presentation
- No Story, No Glory: Closing Arguments that Don't Close Loops
- Litigator & Litigation Consultant Value Added: A "Simple" Final Product
- 5 Keys to Telling a Compelling Story in the Courtroom
- 20 Great Courtroom Storytelling Articles from Trial Experts
- 16 Trial Presentation Tips You Can Learn from Hollywood