When we conduct personal injury trials we need to remember to be good storytellers. It is too easy to get into the habit of simply proving that specific facts of the case. Although the effective introduction of evidence is necessary for effective trial advocacy, that evidence becomes much more powerful when it fits squarely within the story of the case. The story of the case speaks to character and motives. When jurors begin to create opinions as to individual actor’s character and motives the jurors can more easily square away incoming evidence in a way that is consistent with perceptions they have made as to character and motive of specific actors.
For instance, in a vehicle accident case you may want to prove that the defendant was speeding and as a result of his excessive speed your client was injured. Well we of course want to explain to the jurors that there are rules, speed limits, which govern how fast we should drive on a given road. We then need to show that the defendant violated that speed limit rule. We can of course put a witness on the stand who can say that according to his perception the defendant was driving exceedingly fast. This may be persuasive to the jurors or it may not be. The better tactic is to subtly explain to the jurors what the defendant’s motives were for driving fast. We can do this by way of cross examination for instance. While conducting cross have the defendant witness explain what time he woke up, what time he left the house, what time he had to be at work. Have the witness explain that he had an important meeting that morning. Have him explain all of the circumstances which would require him to be motivated to speed. However do not ask the defendant if he was speeding. You don’t need to come out and tell the jurors what Defendant’s motives were. When jurors make this discovery for themselves their beliefs become much more solidified than would otherwise happen if you tried to force an opinion down the jurors throats. You are not trusted, as plaintiff’s counsel. Perhaps in closing argument you have earned this credibility with your jurors but not likely prior to that.
So when we explain rules that the defendant is required to follow we should state rules in a way that hint as to motive and character of the defendant actor. In an insurance bad faith case, we may want the jurors to see the greed which motivates the insurance companies’ actions. Once the jurors see that the insurance company is motivated by not paying claims they will be much more receptive to evidence demonstrating that the insurance company improperly denied the claim. Perhaps you are dealing with an employee who acted negligently. In this case you can show that the employer didn’t want to spend the money on sufficient training. Put forth all the evidence you can in trial which would show that the employer wanted to save money by not training his or her employees. As a result your client was injured by the negligent acts of the employer’s employee, who was not adequately trained. Now you have established a couple of things. For one, you have established a motive which reinforces for the jurors the idea that the employer insufficiently trained his or her employees. Namely that the employer was greedy and put his financial interests ahead of the safety interests of the community. Secondly, you have given a reason for the jurors to become angry at the defendant, as the defendant has essentially put the public in danger in an effort to save a few dollars by adequate training his staff.
If you are dealing with a basic automobile accident case you need to understand that this is not a foreign topic to your jurors. In our typical negligence cases we demonstrate to the jurors what the rules are which govern defendant’s actions. We do this to clear up ambiguity which may otherwise exist as to whether the defendant acted reasonably or not. In an automobile accident case these rules are generally already well understood by our jurors. Thus we don’t need to spend as much time explaining and reinforcing the various rules of the road. For instance, you need to explain to the jurors that drivers should keep their eyes on the road at all times while driving. This is a rule. If this rule was violated then you have done your work. You do not need to inundate the jurors with the rules in these basic auto accident cases. It is also important that you keep good perspective in these cases. Although terrible injury can result when drivers don’t follow driving rules we cannot be so outraged towards the driver’s behavior when that behavior is not so different then what ordinary drivers exhibit regularly. If we do so we lose credibility with the jurors.
Oftentimes we have these automobile cases where the defendant did act in a way which though unlawful was not that out of the ordinary for typical drivers. For instance, defendant may have simply taken his eyes off the road to adjust his radio. It is difficult for the jurors to find huge culpability on behalf of the defendant for something that the jurors find themselves doing from time to time. In these cases we need to emphasize the differences between the juror’s ordinary conduct and the conduct of the defendant in this particular case. For instance, you could emphasize that lots of drivers take their eyes off the road. However, how many of these drivers have been so careless while doing so that they crash into another car at 60 miles per hour?
Also keep in mind that there will be many auto cases where the defendant will admit liability but deny the extent of plaintiff’s injuries. Rick Freedman has written a terrific book, Polarizing the Case, which discusses how to handle this situation. At a basic level, the idea is to use the defendant’s lack of responsibility as a weapon against him. Focus the jurors on the fact that defendant admits fault but tries to escape paying money by calling your client a liar. The defendant not only injures the client but then takes it a step further in trying to escape paying for the plaintiffs injuries by humiliating the plaintiff by calling him or her a liar. The idea is that the jurors provide a large plaintiff’s verdict not so much to compensate your client but more so to punish the Defendant for his arrogance and lack of social responsibility.