Segal McCambridge Legal Blog

An excellent post from Harry Plotkin’s June 2010 Jury tip "Preach to the choir in your closing"
The website can be found here
This particular jury tip can be found here

June 2010 Jury Tip: "Preach to the choir in your closing"

I've often preached about the importance of persuading jurors early on in your case—by the middle of your opening statement if not during jury selection. Probably more times than you can count, I've told you that research studies (and my own mock jury research data) have found that 85-90% of jurors make up their minds in trial by the end of opening statements. And while it is true that 85-90% of jurors, when asked to guess a likely verdict after hearing only opening statements, give an identical verdict at the end of the case or the mock trial, the phenomenon can be a little misleading. It is true that jurors made immediate decisions in trial about which side seems credible, which side's case seems to make sense, and which side's version of what happened seems more likely, based on what the jurors themselves already believe. It is true that, once the juror has ideas about which side seems more likely to make sense and has framed the case a certain way, the juror will view the evidence subjectively, and unfairly.

Every juror—every human—is unwittingly guilty of something psychologists call confirmation bias, which is loosely defined as a tendency to interpret information in a way that confirms their own preconceptions, hypotheses, and what they already believe. It is true that the vast majority of jurors makes their minds up after hearing the opening statements and don't change their minds during trial. When you ask them to tell you
which way they're leaning after openings, they'll tell you that they have no idea, haven't heard evidence, and don't want to guess. But when they do take a guess, that guess becomes the same verdict they're certain of at the end of the trial 85-90% of the time, and that's no coincidence.

But it's also true, and usually unsaid, that actual and mock jurors ROUTINELY change their minds and their verdict during deliberations. So to turn a complex story into a simple one, nothing the lawyers or witnesses say will change most jurors' minds, but other jurors seem to have no trouble persuading each other.

Why? Peer pressure is a large part—many jurors lose confidence in their verdicts when they realize that others have a completely different verdict. How would you feel if you solved a math problem but found that 90% of your classmates have a different answer? If you've ever seen a jury deliberate, you will have noticed that only two or three of the jurors stand firm, argue their side, dominate the discussion, and influence the others. Now you know why; the other nine or ten jurors lack the confidence and stubbornness
necessary to hold their ground when others have differences of opinion and verdicts.

Another key to this puzzle lies in credibility—the other jurors have much more credibility than you do. Even if your jurors trust you, they realize that you and your witnesses are advocates for your client and paid to be subjective. For the same reason that jurors listen much more closely to an objective, by-stander witness (with no stake in the case and no relationships with the parties) than to experts or litigants, jurors trust each other much more than they trust anyone else because the jurors are the only truly objective people in
the courtroom. So they'll take what you and the witnesses say with a grain of salt, but not each other.

By the end of trial, your jurors have long-since decided which side is right and which side is wrong. Don't fool yourself into thinking that half your jurors are still on the fence. Don't fool yourself into thinking that a powerful closing might change the minds of jurors who are against you. That ship has sailed, probably even before the trial's first witness. Don't waste your breath trying to sell your case or be persuasive during closing
arguments. Instead, your focus should be entirely on preaching to the choir. Your only chance to win the case is to prepare the jurors who are already with you to persuade the rest of the jury, because they have a much better chance than you do to change minds.

As I told you last month, your opening statement should be all about building credibility, demonstrating that you're patient and reasonable, and explaining to every juror why your case makes sense. During your closing, you need to assume that your jurors (or at least some of them) already trust and believe you. It doesn't hurt to remind your jurors why your case is reasonable, but don't be afraid to be an unapologetic advocate for your case throughout your closing. The entire point of your closing argument should be to arm your jurors, emotionally and factually, to argue with the jurors who are against you.

Don't simply recite what's happened in the case, summarize what the witnesses said, and conclude with a powerful speech about right and wrong. Instead, I would ALWAYS recommend walking your jurors through the verdict form—blown up as a visual that the jury can see. On each liability, causation, or damages question, prepare your jurors for the arguments they're likely to hear from the other jurors and arm them with the arguments they'll need to fight back and persuade the other jurors. NEVER assume that your jurors will understand the questions on the verdict form and ALWAYS take the time to carefully explain what each question means and what they're being asked to decide. Never rely on the baffling jury instructions to guide the jurors—if you've ever seen a jury deliberate or talked to jurors about the verdict questions after a real trial, you might be shocked at how confusing they find the jury instructions and how many unwitting
mistakes they make.

Don't forget the emotional part of your closing argument, either. You need to help your advocates on the jury become emotionally invested in your case and emotionally prepared to fight for your client, especially when they're being asked to fight for you against stubborn, dug-in jurors. Giving a fiery closing argument that inspires your jurors never hurts—I've often recommended that trial teams choose the even-keeled lawyer to give the opening and the feisty, passionate lawyer to give the closing. The first lawyer's
job is to come across as reasonable, the second's is to fire up the jury. Make sure your closing arms your jurors with more than the facts—give them general principles, trial themes, and larger-than-this-case reasons to fight for your client. I've often advised plaintiff lawyers to tell the jury that a large verdict "might be the only way to help these defendants and companies like them to be more careful and more responsible."

Nearly every research study in psychology tells us that your job changes throughout trial. Try to persuade all of your jurors early on, tailor and present your case in a way that appeals to the unique values and perspectives of your specific jurors, and preach only to the choir at the end of trial.

In what could be the largest bad-faith insurance verdict in state history, Milwaukee developer Park Terrace won an $8.37 million verdict from a Milwaukee County Circuit Court jury after accusing its insurance company of switching its policy after a fire.

Read more in the Milwaukee Business Journal here

A jury in Greenville, South Carolina found that The Hartford insurance company was wrong to deny a printing company's insurance claim and falsely accused the company's owners of conspiring to burn their own business.

The verdict was $2 million more than the printing company had asked for but declined to impose punitive damages.

For more information, click here

From Overlawyered.com

The civil litigation death penalty

There's an old legal joke that goes: "If you're weak on the facts, pound the law. If you're weak on the law, pound the facts. If you're weak on both the facts and the law, pound the table."

Except the entrepreneurial trial bar has found an intermediate step: instead of pounding the table, pound the discovery requests. Persuade a judge that a discovery snafu was really a deliberate attempt at a cover-up, and get sanctions that prohibit the other side from defending itself. Because plaintiffs rarely have discovery obligations that are more than an infinitesmal fraction of a defendant's discovery obligations, this can be a profitable strategy.

The strategy is not new—I saw it myself first-hand in the 1990s defending GM, and wrote a piece about a trial where John Edwards successfully used a variant. But as discovery gets more and more complex due to emails, voicemails, and instant-messaging, it becomes easier for the discovery snafu to happen, and it becomes harder for judges to distinguish between good-faith mistakes and bad-faith withholding of documents. You may recall a famous example in Florida where Morgan Stanley was precluded from introducing evidence about a transaction involving Sunbeam before the appellate court threw out the entire case.

A recent example of this sort of gamesmanship is going on now in Florida where a group of lawyers representing Ecuadorian shrimp farmers came up with a brand new implausible theory of their case—now alleging that runoff from a formulation of a Benlate fungicide that stopped being used in 1991 is what caused their damages in the mid-to-late 1990s, all so they can claim to a judge that DuPont's failure to produce documents about this marginally relevant formulation (which was effectively identical to the other formulations, except it included two inert ingredients) deserved sanctions. And sure enough, the court ordered a civil death penalty: all of DuPont's defenses have been stricken, even though there is no scientific evidence that fungicide runoff caused the virus that killed many Ecuadorian shrimp. (Aquamar S.A. v. DuPont, Case No. 97-020375 (Broward County, Fla.))

A similar case involving Goodyear and a civil death penalty sanction that resulted in a $30 million verdict is pending in the Nevada Supreme Court

Another excellent post on the topic of the civil litigation sanction situation is The Emerging Business Threat Of Civil "Death Penalty" Sanctions

Credit to the ABAJournal

The U.S. Supreme Court has left intact a federal appeals court decision narrowing work product protections for lawyer materials.

SCOTUS declined cert today in the case of Textron v. United States. For more information see SCOTUSblog.

The refusal lets stand a ruling that allows the Internal Revenue Service to access documents that considered how much money the defense contractor Textron Inc. should set aside for possible tax liabilities.

The ruling by the en banc 1st U.S. Circuit Court of Appeals based in Boston had said the documents weren't protected by the work-product doctrine because they weren't prepared specifically for use in litigation. The court also found the documents had lost their attorney-client privilege because they were shown to outside accountants.

Frederick Krebs, president of the Association of Corporate Counsel, had said at the time of the 1st Circuit ruling that it “eviscerates the work-product doctrine."

There is a split in the federal circuits on whether the work-product privilege applies to documents that are prepared both in the ordinary course of business and in anticipation of litigation.

UPDATE
Cory Andrews has an article in Forbes that has more on this case here