What do you think is the most important part of trial?
Not an easy question to answer, but if forced to choose, I’d say the Opening Statement. Of course, jury selection is critical, but depending on the venue, we have less control over voir dire. Opening statement is reflective of proper preparation and reveals the trial story. The opening is the basis for everything that follows. If we haven’t properly prepared, the opening can be more reactive than reflective. The trial story should be consistent, concise, credible, and complete and a guide for what is to come.
What is the Process of Preparing to Open?
It starts at the beginning when accepting the case. We believe in process. As you know, David Wenner and I developed the Jury Bias Model™. The model involves examining the facts to test against five prejudices and biases we discovered, which are often prevalent and work against the plaintiff. Bias can work in your favor or against you. They are not always bad. So, we analyze the case using the first part of the model, testing the facts against the five likely biases. Then we examine certain heuristics we have tested that can be used in your favor or to help level the playing field in persuading a jury. These are referred to as the ten commandments or principles available for use in case preparation. After completion with the ten, we engage in what we call Bottom-Up Preparation.
Bottom-up preparation involves discovering what the likely jury believes about aspects of the case. It’s what a jury thinks important, not what you think important that makes a difference in winning or losing. We work through the Bottom-Up Preparation process that has about seven steps. The whole purpose is to design a trial story that is the best and most effective.
We start with the facts, but never leave them. I don’t care how good you are, you must be faithful to your facts. We can add facts, exclude them, emphasize some, deemphasize others and decide the order of how the facts are presented. You do all of that to make the trial story as consistent with what the jury already believes as possible. It’s like jumping into in a fast-moving stream and going downstream instead trying to swim upstream.
We learn what the likely jury believes and the flow of the stream by doing jury research to find the essential essence of the case, or what some people call the case core. In going through that process, the trial story and the opening statement are developed. Then, you present your case in the order that you’ve determined and tested is the best way to tell your story as consistent as possible with what you understand the jury already believes. Understand you are not going to change a jury’s beliefs and core thinking during a trial. It just doesn’t happen.
The story comes out in the opening. If we can be disciplined enough to stick to it, and we’ve gone through the process and tested it properly, then we know what works and what doesn’t. We may not succeed; there’s no silver bullet, but we’ve certainly enhanced our opportunity to help our clients through that process.
What Are the Seven Steps to Building Your Story?
Wouldn’t we all be happy to believe there is a single, universal truth waiting to be discovered by those who have all the necessary facts. We think, “If only the jurors are able to understand this set of facts, the conclusion will be obvious, and truth and justice shall prevail.” There is comfort in believing that if everyone had access to the same information, everyone would agree. Yet we know, and our experience proves that this is just not the case. Different people with access to the same information and the same presentation of facts, reach different conclusions. Jurors reach different conclusions about what is true because they start from different places. Our different beliefs influence how we perceive and assemble new information about the world around us. There may be no such thing as objective facts. Facts are observed, perceived, and understood by individual jurors according to the juror’s own needs, attitudes, beliefs, makeup, experiences, and schemas.[i]
So, working in bottom-up preparation results in an active process of looping back and forth to the facts, the case core, the moral essence of the case, the frame, the sequence, discovering schema, developing ideas, and testing them against the research and data. The heart of the process is listening to what the potential jury thinks important, not what we think important. When we know what matters to the jury, we can frame and position our case to match the jury’s thinking as much as possible.
First, We Get the Facts
As we discussed earlier, we start with the facts, but we never leave them. This process involves returning to the facts as information is gained about what is important to win. How to reframe the facts, reorder them or add to or take from the facts. We try to remember it is all about what the jury thinks is important, not what we think is important. Jury research and beliefs, reframe, reshape, and reorder the facts, which can make a difference.
Then We Do Jury Research
We use focus groups (formal and informal) such as Concept, Structured, Mini-Mock, and Mock trials as part of jury research. The concept focus group initially involves the unpacking of the case in a fact neutral, chronological, non-persuasive way. In a concept focus group, you don’t initially tell the group all the facts. You introduce them one at a time and then ask them their thoughts. The concept group is considered the gold standard by many informed practitioners, because it discovers jury proof rather than legal proof. It often discovers issues not recognized by lawyers. There are some cases where you can’t afford even to do a focus group, but you can learn what people think, listen to comments, listen to talk radio, talk to your friends and your family. Take a newspaper article and look at the comments and learn what your jury pool believes about issues that may be in your case.
If necessary, we may use online and telephone surveys, where appropriate. We try to stay involved in the most current research on decision-making. Tested research has been accumulated for 20 years. The case core presentation and trial story must be based on real jury research using the Jury Bias Model™ and other methods to analyze and present the case. The jury research is critical to learn the essential essence of the case. Why does it matter? Why is it important to a jury? Why will they care about it?
We Find the Case Core
Developing the moral essence of our case, a unifying idea, theme, or frame that is a recurring element of the story is essential to the structure. Our research introduces it early in the process. Not necessarily literally, but through nuance. This motif undergirds and is the foundation for the story. A passage or short paragraph is developed from the unifying idea, theme, moral, or frame, which summarizes the story. It has a beginning, middle, and request for action. It should be no more than a few sentences and should provide an answer to what the case is about in no more than a paragraph. For example, I had a hospital case where they took my client to the restroom, and she was injured along the way. We alleged they dropped her. We went through this process. We came up with the essence of the case “a hospital is supposed to help not hurt.” And we just stayed with that. The theme paragraph we developed was, “Mrs. Herring, walked into the hospital for a medical test, three days later, she was rolled out in a wheelchair with a broken back.” You don’t have to say make them pay. They want to know what happened.
We Frame and Reframe
We work with our case to create the design, shape, and outline of the story and decide where to start and in what sequence. We try to frame and reframe the point of view and description of the events to provide simplicity, credibility, consistency, and completeness based on our jury research and the essential essence of the case.
Ultimately, We Develop a Trial Story
As we continue to build the trial story, we confirm the best starting point and sequencing to highlight strengths and inoculate against weaknesses. Our story should appeal to the senses and take advantage of all the preceding steps. We consider using anecdotes, metaphors, rhetorical questions, and analogies. The story structure will drive decision-making using all the parts of the heuristics found in the Jury Bias Model™. Now is the time to see if it works.
If Necessary, We Test and Modify the Trial Story
We test and modify the trial story and presentation until we are confident we have developed the story that maximizes the chances of success. At this point, because of the process, we have confidence that the story and presentation is solid, sound, and hopefully successful.
Is the Trial Story Consistent with Beliefs?
Once there is a consensus on the Trial Story, confirm it is congruent with the potential jury’s beliefs. Beliefs and attitudes were discovered in jury research and used throughout the process. To instruct proof at trial, provide a list of what the jury must believe for you to win, as well as what the jury cannot believe for you to win. Lawyers using this process can then outline and arrange evidence, exhibits, and testimony to accomplish the goal. Jurors must believe the trial story presents the most acceptable solution. The choice is the juries, and the lawyer must be the “guide on the side, not the sage on the stage” as it is said.
How Do We Understand Jury bias?
Years ago, we started using focus groups to figure out why good lawyers were losing good cases. Twenty-five years ago, lawyers were going to trial and losing cases that they thought they should win, and they didn’t know why. That was a real problem. They were either getting much lower verdicts than they expected or losing even rear end collision cases. We started doing some research. We figured out by doing focus groups and studies, that there were four or five potential biases that could be in favor or against our cases. We discussed them earlier. We call them untried issues. If you aren’t aware of them, you can’t do anything about it in court to either use them to enhance your position or to counter them.
Bias is an inclination or prejudice in favor of or against something, a person a group, or thought when compared to another. The filters through which jurors receive and process information are firmly ingrained, shaped by a lifetime of familial, social, and political influences. Jurors will not change their predispositions and attitudes about the world to fit your trial story. The Jury Bias Model™ provides powerful insights into how to analyze your case, and how jurors are likely to think and feel about the issues raised in the case.
There are many biases, heuristics, which can impact our case. We can use them through a system of analyzation, implementation, and utilization. Initially when we started doing research, we were concerned with five biases that often worked as anti-plaintiff biases, which made up the first part of the Jury Bias Model™:Suspicion, Personal Responsibility, Victimization, Stuff Happens, and Fault Finding of the Plaintiff.
Jurors across the country were and still are suspicious. They are suspicious of lawyers, judges, the judicial system, of experts, and of our clients. Covid and political polarization has made it worse. Credibility is critical. We must portray ourselves and our clients in a way that doesn’t fit the prototype they have of us. “Jackpot Justice,” “Lawsuit Lottery,” are terms that the defense insurance and industry developed to make our cases more difficult.
Personal Responsibility is important in every demographic. So, can you portray your client as being personally responsible, and the defendant irresponsible? Help the jury understand that the plaintiff doesn’t want to be in court, the defendant gave them no other choice.
Don’t portray your client as a victim. Often the jury feels victimized that lawsuit cost them money, interferes with their healthcare, and raises the cost of products. Be conscious and aware of this concern. Instead portray an attitude that your client feels they will get through and make do whatever happens. They’re trying to find a job even though the doctors have not released them to work yet.
Stuff happens. There’s a group of people that just really don’t believe in undeserved suffering. They just think it’s part of life. It may be God’s plan. It’s just the way things are, and we just can’t compensate any and everybody who gets injured regardless of the facts. So how do you discover those people? Well, you try to figure out who they are. You can through jury research, voir dire, and supplemental jury questionnaires, if the judge will give you the opportunity. One telltale sign of those jurors are they never have enough information. No matter what you give them, they want more information. They’re not going to be convinced.
Blame the plaintiff — Defensive attribution. I call it the “not me bias.” “I wouldn’t have done that.” You know, “I wouldn’t have jerked to the left to miss the dog and then lost control of my SUV and flipped over. I wouldn’t have done that. People have a better view of themselves than what they would do if they were in the same circumstance as the plaintiff. Those people tend to blame the plaintiffs for what happened.
So, before we start doing the bottom-up preparation to analyze our case, we try to determine if there are issues we’re going to have to deal with. I’ll give you a perfect simple example that happens in cases all the time. Somebody is in a car wreck, and they don’t go to the doctor for three or four days. The jury will likely be suspicious of them. “If they were really hurt and personally responsible, they’d have gone to the doctor.” All those things come into play.
For a more in-depth analysis of my thoughts, you can look at our book Winning Preparation Preparing to Win. “Understanding jury bias,” is the subtitle. Trial Guide published and has it for sale in connection with AAJ.