by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant
1. It has words longer than three syllables.
When was the last time you were on line at a supermarket and overheard someone say, “notwithstanding," "inasmuch," or "but for"?
Lay jurors simply do not use terms like “estoppel,” “proximate cause,” “conditions precedent,” and many others. If a verdict form is laden with legalese, jurors may fixate on the words they do understand, giving them disproportionate importance. They may incorrectly paraphrase the question, misinterpret the instructions, or all of the above. The best way to avoid that is to have a non-lawyer flag any unfamiliar terms, try to provide definitions in the question, or try to paraphrase them into lay terms. Of course, if confusion is your strategy, leave as is.
2. It’s easier to stop early by finding against you than for you.
Answering question 1 “No” would lead them to stop and go no further. Answering “Yes” means continuing to answer the next ten questions, and they will deliberate a lot longer. That’s a problem if “No” means you lose. Explore other ways to structure or sequence the questions, if at all possible.
3. It asks questions that don’t parallel the way you presented your case.
You may have done a marvelous job presenting the evidence, did a great opening and a powerful closing.
One problem: What does it all have to do with the verdict questions? You never showed the jury the verdict form, you didn’t tie the evidence and arguments to the actual wording of the special verdict questions, and now you expect them to know how to translate all that into a verdict. They have no tools (unless they are in the legal profession) with which to infer that what you were talking about was actually “bad faith,” or a “breach of fiduciary duty” or anything else. As a result, they will make up their own definitions of the question and what it means, which is very risky. You don’t want the case presentation and the questions to be ships that pass in the night, so commandeer the presentation to dovetail with the wording of the likely verdict questions.
4. It has too many/too few categories to find liability or award money.
Clumping parties together may make it difficult to discern their individual responsibilities, if any, and easier to award money if asked as a group question, e.g., “Which of the following defendants, if any, breached the agreement with Plaintiff?” This group approach may lead jurors to focus on the alleged breach rather than on each defendant.
Separating out issues and defendants, when there are many, makes it hard to sort out as jurors may not have kept good track of who did what. This raises the burden for Plaintiff(s) and jurors. For the defense, one way to lead jurors to scrutinize the actions of each defendant, making it harder to respond in bulk fashion, would be to ask a question for each defendant, “Did Plaintiff prove by a preponderance of the evidence that defendant A breached its agreement with the Plaintiff? If so, did Plaintiff prove its economic damages against defendant A? (Repeat for each defendant).
Regarding damages, the odds increase that jurors will fill in the blank with some amount of money for each blank presented, so for plaintiffs, the more, the merrier and vice versa, generally speaking. However, at some point, they are likely to reach exhaustion if there are too many.
Historically, some categories of damages are less likely to succeed than others (e.g., loss of consortium). Pretrial jury research can help identify these as well as the factors that tend to enhance or mitigate finding liability and damages, including troublesome wording and formats in verdict forms.
An additional problem when there are many issues/litigants and/or various liability claims that could lead to damages, is that the form becomes a labyrinth which is impossible to navigate and raises the likelihood of error, e.g., “If yes to Q1 and Q3, answer Q4, but if no to Q1, answer Q2 and skip Q4.” Ouch!
5. It does/n’t include other possibly liable parties, so the defendant listed dis/inherits blame and damages.
Sometimes there is a structural defect in a verdict form insofar as there may be other liable parties, but they are not included in the verdict form for allocation of some of the blame or some of the damages. In that case, jurors often assume they cannot be blamed or participate in making the plaintiff(s) whole, and regard those listed as the only source. Depending on where you stand, that is a helpful or harmful distortion.