Larry E. Coben, Esquire
Anapol Schwartz
lcoben@anapolschwartz.com
215.790.4587
- Introduction.
Justice in America has taken varied directions. With legislative and judicial activism reacting to a never-ending, changing economy, the field of civil litigation has undergone tremendous fluctuation in the past decade. Philosophers have regularly considered a society's legal system a barometer of individual and institutional values. These observations are certainly true of the law of torts in the United States. Since Professor Prosser and the American Institute developed the Restatement of Torts--then reflecting the prevailing legal principles governing our civil laws--a revolution has transpired. Our jury system has been infected by legislative and public ridicule of attorneys and some extreme examples of an otherwise predictable, stable institution which, once in a while, produces an unreasonable result. When counsel to the victim of tortious misconduct walk into a courtroom today, they are met with skepticism and suspicion. Equally perplexing for the trial bar is the realization that Judges have less time to try a case and jurors have greater expectations about how counsel should represent his or her client in a "professional", yet "Hollywood fashion". Jurors are, like everyone else in America, conditioned to the "sound bite" approach to communication. We have lost the ability to read a long novel; we'd rather watch a good 50 minute T.V. show. People would rather watch an action film, then pay money to watch a film with a lot of dialog. And, finally, as a result of "insurance reform", "tort reform", etc., jurors are keen on the concept of "personal responsibility". All of these circumstances and developments effect the trial process—and place the Plaintiffs’ trial bar on an uphill battle.
A trial has a life of its own. Shakespeare was right: "all the world is a stage . . .", and we as attorneys are the directors (and sometimes we become the actors) presenting in a courtroom a true life drama. From selecting the cast (jury voir dire), to the choice of an opening monologue, and through the final interchange, the importance of "plot", "theme", and "motivation" remain prominent in the presentation of a case. How we present ourselves, the witnesses, and the evidence is just as important as what evidence we present. Equally critical to plaintiff's presentation is how you deal with the foreseeable defense evidence and arguments against your claim. As we orchestrate the trial, it is vital that plaintiff's theme of the case be constantly presented to the jury, during your case in chief and during the cross-examination of the defendant's case. After all, the jury should never adjourn for the day without a reminder of what your case is all about.
B. Educating a Jury.
Jurors learn in different ways. Key factors in learning include: (a) importance, (b) repetition, and (c) timing of presentation. The amount of information to be understood affects the rate of learning; the more to learn, the longer it will take to comprehend. And, the corollary of this premise is that the faster the data is presented the less jurors will remember.
When you start a trial it is, in many ways, like bringing jurors back to school. Competing facets of this educational process are thoroughness versus boredom. Educating a jury may take several weeks when the issues involve complex scientific principles and their application to a convoluted accident event. Nevertheless, counsel must find ways to present the evidence so that jurors are motivated to listen and learn. To enhance perception, you must consider the effects of organization, clarity, subject matter, and presentation. Jurors will judge a litigant's method of presenting the evidence even before they judge the issues in the case. Select evidence which demonstrates the "objectivity" of your client's claim. Use all accident data and try to make use of your opponent’s exhibits and theories to explain your case--take head-on the defenses' theories. During your case in chief, have your witnesses answer all of the known arguments you expect the defendant to present; do not present your case wearing blinders.
C. Critical Components To A Plaintiff Prevailing: Control The Case’s Theme.
In a products liability or negligent marketing case, it is vital that counsel for the victim remember—and remind the jury at every possible instance—that:
1) your client is a victim;
2) your client had no idea that the product was defective;
3) your client did nothing that was intentionally exposing himself/herself to harm;
4) the accident was foreseeable;
5) the aspect of the vehicle causing injury was predictable to the manufacturer;
6) good science rather than bureaucratic compliance with government mandated safety standards is all that we ask for in the design of a vehicle;
7) the client's injuries are directly related to the failure of the product to provide a necessary measure of safety;
8) all sides hire experts who are in the business of testifying for a particular litigant;
9) Access to data and experts is not equal; manufacturers are the "Goliath" and you represent "David", attempting to slew the giant [a bit melodramatic, but true];
10) Automobile crashes do not guarantee serious injury; rather injury is dependent upon safety design;
11) The "greater good" defense (i.e. "cost-benefit") does no "good" for your client or any consumer, who is not a statistic, but rather he or she is a casualty of the "pencil pusher" mentality of determining compliance with government standards and no more;
12) the manufacturer of a motor vehicle has a "personal responsibility" to design and fabricate a well designed vehicle;
13) the Public Health requires that this wrong be righted; and,
14) the "you're not alone theory" [each of us is a victim].
D. Voir Dire: Jury Selection
Many trial lawyers and jury consultants believe that voir dire is the most important aspect of a trial, and yet some lawyers enter jury selection unprepared or they use the same structure and format they have used for years, despite the nature of the case. All too often lawyers think they can conduct an “off the cuff” voir dire, but this approach lacks focus.
There are several goals that a lawyer should pursue as part of voir dire. These goals will help any lawyer do a better job of identifying and questioning potentially good and bad jurors for her case. The goals help give an attorney focus and direction to accomplish her end mission: to seat a jury that will give her client a fair trial.
Start the process accepting the proposition that it’s unimportant for the jury to listen to “lawyer talk”. The only way to know if prospective jurors are good or bad for your case is to get them to talk about themselves, their ideas, and their feelings. To accomplish this goal, you need to convince prospective jurors to talk to you. Therefore, you should make the prospective jurors comfortable in your environment, the courtroom. In voir dire, you have only one shot. If you do not make the prospective juror feel comfortable talking to you during voir dire, you do not get a second or third bite at the apple. You must figure out the best way to get the panel members to open up. Remember a basic concept as you work to get prospective jurors to open up: always use jury-friendly language—words that jurors can relate to and understand.
You need one thing if you want to win your case: jurors who care about your client and who are interested in your case and your issues. Jurors who care will give you and your client a fair trial. Jurors who do not care will not invest themselves in your client or the case and are, at best, unpredictable. At worst, they are not happy to be there and will punish you and your client when the verdict is rendered. That being said, most jurors want to do the right thing. The key is for you to convince the jurors that your case is not frivolous or a waste of their time, and that your arguments deserve their full attention.
Step one in accomplishing this is to tell the panel from the first moment that you stand up to address them that “this is a very important case.” Those words should be the first ones out of your mouth. When you speak those words, the panel instantly becomes invested in the case. This step is all about you sending a message. If you cannot be excited, sincere, and enthusiastic about your case, do not expect anybody on the receiving end to want to invest in it either. In every single trial - whether the case is a fender-bender, a boring contract case, the jury needs to know your case is important to somebody. If the jury believe the trial is not important, then they will punish you and your client. Tell the panel that your client has been waiting for months (or even years) to have his day in court and to tell his story to a jury of his peers. If you ask prospective jurors if they want to serve on a meaningless little case, they are all going to say no. People want to feel like they have a chance to serve on a high profile case. They want to believe they can make a difference. You need to make your case right away. You usually have one-hundred percent attention of all the panel members at the very beginning of voir dire. You must impress and invest in the potential jurors within the first few minutes in order to keep their attention. Jurors who are interested will listen. If jurors are interested and listening to your case, then they will want to do the right thing and they will give you a fair trial.
Step two: identify panel members who will be bad jurors. Never run from the truth and do your best to have folks acknowledge their biases and prejudices so that you have the ability to either strike for cause or peremptorily. A quiet potential juror is a mistake. Further, don’t shy away from asking tough questions that provoke negative comments because it’s much better to hear them in voir dire and eliminate those folks from expressing these views during jury deliberations. The fact is that negative comments during voir dire have little or no impact on the folks selected to sit on the jury; they are essentially forgotten by the next day when jurors become invested in the case.
E. Preparing For Trial: Checklist.
The trial of every case takes time and the coordination of exhibits, witnesses and meeting the demands of the Court and your adversary. Coordination includes the following items in most courts:
- Exchange Exhibits
- File Exhibit Objections
- Pre-Admit Exhibits
- File Deposition Designations
- File Deposition Objections
- Rulings on Deposition designations
- Exchange Trial Witness List
- File Objections to Witnesses
- Daubert Motion Filing Deadlines
- Daubert Motion Hearing
- File and obtain Pre-Trial Rulings on MIL
F. Trial Schematic
■ Use the jury charge to develop an Offer of Proof checklist. Pick the best evidence and then stop. Leave the kitchen sink at home!
■ Keep things “simple, intuitive and “common-sense-proof”.
■ Incorporate (and defuse) defenses into Plaintiff’s case-in-chief.
■ Choose Your Battle Ground Issues.
■ Lessons From Military History: Pick The Battle Ground
■ Simple / Intuitive / Common sense
** Trial Exhibits must be visual, clear and “stand-alone”
D. Conclusion.
Accepting representation of a victim of corporate neglect presents challenges which require counsel to employ his or her most ardent effort. At every turn, a plaintiff and his attorney must be prepared to take the offensive. When counsel closes to the jury, he or she must be prepared to look each juror in the eye and ask for victory. To have the temerity to ask for a money award, counsel must have lived this trial as he or she lives life; true to oneself and true to our system of justice. Jurors want to feel good about their duty; they want to know they have made a difference. When we present an organized, aggressive, straightforward presentation, it is impossible to have any other effect.
