Lessons Learned/Confirmed From Jury Trial – Session 1
As a trial lawyer, juries still amaze me after 34 years of practice. Yesterday, two very talented lawyers and I received a favorable verdict after three weeks of trial. I generally find myself on the plaintiff’s side of the docket helping people who have been hurt as a result of someone’s negligence. But this trial involved me helping a small company that was wrongly accused of negligent hiring, supervising, training and retaining a driver who was involved in a collision.
At the end of the case, several jurors wanted to talk to the attorneys. In listening to the jurors, I confirmed that jurors work very hard at finding the truth. And the truth comes in many forms!!
Lesson 1. Lawyers need to pay attention to their client. If a case looks good on paper, the case can be lost the moment your client walks into the courtroom.
It seems obvious that a person who says she needs cervical and lumbar surgery will use a brace or a walker or a cane or some combination. It stands to reason that injured people are in pain if they need surgery. And while lawyers and clients think they are smarter than most people, the collective minds of twelve jurors are smarter than the lawyers, the judge, the witnesses and the parties. So what did the jurors see in this case that made a huge difference in the outcome?
1. If the jury does not like the person who filed the lawsuit, don’t expect the jury to be sympathetic, compassionate or forgiving. The jurors left their job, their families, their productive lives and their private relaxation to listen to a case where they expect courtesy, respect and honesty. If a witness, and more importantly, a party lies, refuses to answer a question, repeats a lie, exaggerates, changes prior testimony after a break or mischaracterizes events, the jury will be unhappy. This jury was favorable to the claimant on liability, but gave NO DAMAGES because the “victim” was seen as a dishonest opportunist.
2. Everyone wants to look nice and professional, especially clients who want to “dress for success.” But the attorney should be well aware of the fact that a client with back problems should not wear heels. Coming to court in flats, even tennis shoes, tells the jury the plaintiff is following doctors’ recommendations and even using common sense: high heels cause pain. So when our jury with nine women saw the complainant in heels for several days, her credibility was destroyed. And when she was cross-examined about wearing sandals with heels on the day of her testimony, the jury was very quick to observe the plaintiff come to court in flats for the remainder of the trial – – TOO LATE. And if you are male, you better learn the difference between flats, wedges and heels!!!!!
3. Honesty is always the best policy. “I use a cane because my legs give out and I will fall.” If this is true, the jury will be watching you. Here, the plaintiff walked very gingerly to the witness stand when called to testify. She leaned on the chair, counsel table, the bench, the bar in front of the jury box and the box around the witness chair as she approached. It was quite a show. When she angrily left the stand, the jury saw a quickly walking lady use NO SUPPORT on her return to counsel table. And you must know the jury saw her in the hallway at times and even outside of the courthouse. The cane she “needed” was often on a different arm or carried instead of used for support. A jury will quickly see the honest person for who he/she is and will see the opportunist through the theatrics.
4. Clients need to testify from the heart. Jurors made note and commented about persistent phrases used during testimony. If a client uses street language through 99.9% of her testimony, the jury won’t accept legal phrases or terms from the witness. Those terms are “lawyerspeak” and the jury will treat the witness as being coached instead of honest. “Prudent at that moment” is not believed when “as fast as I could” sounds like it came from the client and not the lawyer.
I share these thoughts today while they are fresh in my mind. I always tell jurors “there is no sign over the courthouse door that says leave your common sense behind.” I urge jurors to bring that common sense and their life experiences into the courtroom and jury deliberation room. They do this conscientiously and with great respect for the process. I tried this case with some great lawyers on our team and against a team of lawyers that is experienced and talented. But jurors don’t care how talented the lawyers are. They look to the witnesses for the truth despite what the lawyers say or do. Having just witnessed some simple truths in a courtroom again, it is worth repeating: Lawyers need to be vigilant of the attire, speech, mannerisms and conduct of their clients when they are at the courthouse. We need to familiarize our clients with the psychology and theater of the courtroom. As lawyers, we need to make sure they are comfortable with the room, with the people, with their roles and with the entire process. A comfortable client who can share their thoughts without any distractions is a more credible witness and more likely to obtain the desired result.