Communication Techniques for Managing Juror Biases

 

Jury trials are a cornerstone of our modern legal system. In fact, it could be argued that they’re a necessary component of a democratic society. Yet for all their advantages, jury trials also present certain challenges for us as Ohio civil litigation attorneys.

Personal vs. human juror biases

The reason is simple: juries are composed of people, and people are complex. We all have our own individual experiences and beliefs that color the way we view the world. In addition to those personal biases, there are more general human biases that are a part of our psychology and how we are wired.

Personal biases and prejudices are part of the reason why there’s a process called voir dire (meaning “to speak the truth”) where attorneys ask potential jurors questions in order to assess whether they are able to render a fair and impartial verdict. But what about the subtler juror biases? The ones grounded in basic human psychology and not just prejudice or partiality? Those too require certain techniques in trial if we are to ensure our clients secure the justice they deserve from a jury of their peers.

Primacy, recency, and the art of storytelling

When presenting a case to a jury, a certain amount of storytelling sensibility is helpful (as we’ve discussed before) in order to maximize the information’s impact. The primacy and recency effects are biases that cause people to better recall the first and last parts of information presented in a series.

With any kind of storytelling, capturing the audience’s attention right away is key. For the purposes of presenting a case, primacy can have an incredible impact—it means telling the story in a manner that immediately gets the jury focused on the issues involved, as well as the outcome that’s being advocated.

On the other hand, the very last statement a jury hears can also make a big impact, especially if it’s a longer trial. In terms of recency, we like to finish our presentation of the evidence with compelling testimony. A persuasive closing argument powerfully summarizes the testimony for the jury members and provides them with something to discuss as soon as deliberation begins.

Juror bias of loss aversion

One of the more fascinating, and less obvious, forms of juror bias that civil litigation attorneys need to keep in mind is rooted in the concept of loss aversion. Social scientists who study human behavior report statistics showing people have a strong tendency toward preferring the avoidance of losses over the acquisition of gains.

This inclination toward loss aversion requires subtle adjustments when dealing with a jury. If, for instance, the jury’s job is characterized as awarding compensation to improve the plaintiff’s life, jurors will likely interpret that as providing a gain and will feel less receptive toward it.

If, on the other hand, an award is characterized as a means of making up for a loss suffered by the plaintiff, jurors may be more inclined to agree with granting it. They are able to view the award as effectively restoring the plaintiff back to the state they were in before they were wronged. In the jurors’ eyes, the plaintiff’s life isn’t improving by adding a gain, rather, the void that was created by the defendant’s misconduct is being filled. The difference is quite subtle, but it can have a powerful impact on a jury.

Appealing to the status quo

A related strategy for addressing jury biases involves how you present the “status quo,” or typical situation, of the plaintiff. There’s a tendency for people to like things to stay relatively the same, as opposed to changing them. In court, we take that preference into account.

 For example, in a personal injury case, if a client’s status quo is being projected as that of an injured person, the jury’s receptiveness will potentially be different than if the status quo was presented as that of a healthy person. We aim to project a healthy status quo for our clients so that, in the minds of jurors, an award to the plaintiff will restore the healthy condition they enjoyed before it was degraded by the defendant’s misconduct.

The importance of being personable

Many human biases come into play during jury trials, and knowing how to strategically address them is a mark of a great attorney. However, there is more to practicing good, effective law than text book knowledge—being personable and accessible are also extremely important attributes of successful civil litigation attorneys. We strive to communicate using clear, simple language that juries can easily respond to in order to get the best outcome for our clients.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Methods for Optimizing Jury Selection and Voir Dire

Voir dire is a legal term you may have heard before. It’s a critical element of the jury selection process, where prospective jurors are questioned about their background and evaluated on their likelihood to optimally serve on a jury. During voir dire, civil litigation attorneys on both sides try to identify biases that could affect how a juror views the facts of a case. Everyone has biases, based on their personal experience, points of view, and opinions. In voir dire, we attempt to identify the biases that might indicate that a particular person is not right to serve on a jury for a particular case.

Listening to personal stories

Voir dire is the only opportunity attorneys have to question jurors directly. This is the time to open lines of communication with prospective jurors about their opinions, experiences, and attitudes to try to better understand how they are positioned on certain topics.

Opening up about our own personal stories is one of the best methods we’ve found to get the conversation started. For example, one of our attorneys is the father of an autistic son. By explaining how his role as a parent means advocating for his son, we show how his rightful desire to get the best care and education for his own child makes him the wrong juror for a case involving a dispute over special-needs childcare. We take special care to reinforce the idea that this has no negative reflection on him as an individual—it simply means that his personal experiences may prevent him from thinking about the case objectively.

This and similar anecdotal stories serve two purposes: First, they prove that having biases doesn’t have to be negative, which helps reduce the chances of offending potential jurors. Second, these stories make us as attorneys appear more vulnerable and human—ultimately promoting trust and open communication.

The goal is to spark an honest conversation about what prospective jurors believe so that any biases affecting the juror are brought to light.

We often approach potential jurors with the intent of listening more and talking less. Many attorneys tend to forget that the goal of voir dire is not to start arguing the facts of the case. By asking open-ended questions we allow prospective jurors to place themselves on a spectrum of various opinions that a simple “yes” or “no” answer wouldn’t reveal.  This helps jurors see that reasonable people have a range of thoughts on a particular issue.

We’ll sometimes start by questioning the whole group with a show of hands, then proceed to open-ended questions for individual jurors. “Tell me more about that” is something we say often. It encourages people to tell their stories, and it helps us learn about their backgrounds, life experiences, and biases.

Information gathering process

Obviously, we don’t want a person on the jury who is likely to vote against a verdict that would favor our client. However, attorneys are allowed only a limited number of peremptory challenges, in which we can dismiss a potential juror. As a result, many juries have members who we feel are less than ideal. The process of voir dire helps us gather information about those jurors that is often valuable later on. We try to learn as much as we can about how the jurors think, and leverage that information for structuring arguments during the trial so that the jurors who do present a challenge perceive details in a favorable way.

It helps to have a second attorney on hand to take notes during the voir dire process. This way, one attorney can talk with prospective jurors while the other takes notes on what they say. We look to identify prospective leaders, people whose personalities will inspire others to follow them—and which jurors will likely support the plaintiff.

Establishing respect

As important as the voir dire process is, it is always respectful—we never want a prospective juror to feel as if he or she is being cross-examined in a hostile way. We remind each one that we’re not trying to determine if they’re a good or a bad person. We’re only trying to decide whether they’re the right juror for the case. It is very important that we show respect for their feelings and opinions. It makes the information gathering part of voir dire more complex, but in the end we never want to antagonize someone who might end up on the jury.

We know that a successful outcome often begins within the very first few minutes in the courtroom, by getting the right jury empaneled.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Unusual Courtroom Tactic Wins Case Against Construction Company

Sometimes doing something unusual in a courtroom can make all the difference. Ohio civil litigation attorneys at Cooper & Elliott were faced with such a decision. After a brief discussion about the risk, they made a bold decision to literally pour a bottle of water over the defense’s exhibit—and it proved to be the turning point in the case of a family whose dream home turned into a nightmare due to a construction defect.

The construction defect

It started when the Gearharts* noticed water coming into the basement of their new home. After each rain, water poured in through the cinder blocks—so much so that the Gearharts were able to capture the water coming in on video. The sump pump was running non-stop, and their basement was so damp that mold was growing on their belongings, some of which were family heirlooms. Mildew formed on the walls, and when the Gearhart’s children started showing flu-like symptoms, they feared that mold was inside the walls. The Gearharts attempted to combat the mold growth with a variety of solutions, but had little success.

When the construction company that built the home refused to take responsibility for the water seepage, the Gearharts came to us for help.

Perseverance and creativity

We needed to find out exactly what flaws or defects were allowing water to leak into the basement of the Gearhart’s home. The construction company was not willing to cooperate in that, so we had to do some digging on our own.

Rather than spending thousands of dollars excavating around the entire house to see what errors had been made, we hired experts and conducted research. By looking through records we were able to determine how much gravel the builder had used, and according to experts, it wasn’t enough. Gravel allows water to drain away from the foundation walls, and without enough of it, the soil around the basement was absorbing water like a sponge. The immense weight of the saturated soil put so much pressure on the walls that they had started to bow and crack. Water damage aside; the very stability of the house was in question. By excavating in a small area, we discovered that the construction company neglected to properly treat the exterior of the walls with waterproofing chemicals.

During trial, the first judge dismissed the case—much to the consternation of the jury that had heard the evidence against the construction company. That decision was reversed on appeal, which meant that we would have to start over with a new trial, significantly lengthening the process. At that point, most attorneys would have grown weary with the case and advised their clients to take the settlement the construction company had offered—but we kept fighting.

Using the defense’s tools against them

During the second trial, the construction company’s defense built a special exhibit to demonstrate to the jury the functionality of a basement wall. It was a mock-up wall made of cinder blocks, about five feet long and four feet high, with tar on the outside and gravel at the base.

As we prepared for cross-examination, we noticed a bottle of water on the table, and it sparked an idea: after a brief discussion, we decided to take the bottle of water and pour it over the exhibit. The defense had constructed an elaborate exhibit to demonstrate how a basement wall should deflect water, but they had neglected to include water in their demonstration.

We knew we were taking a risk, but we followed our instinct.

As the cross-examination began, we asked the witness if the model represented a properly constructed wall. The witness acknowledged that it did. We then poured the water over the exhibit, which drained away exactly as intended—reaffirming that the walls of the Gearhart’s home were not properly constructed.

The jury had viewed the videos of water pouring in through the walls of the Gearhart’s basement, and the demonstration with the water bottle solidified our case. The witness wasn’t prepared for the exhibit to backfire, and needless to say, there were some chuckles from the jury. That moment helped turn the trial in favor of the Gearharts.

The Gearharts feared they might walk away having to pay exorbitant amounts of money to correct a terrible defect in their dream home. With a little creativity and perseverance, we were able to make sure that didn’t happen. They received a settlement that allowed them to fix their dream home, from bad walls to mold remediation, and helped pay their expenses while they lived somewhere else during the process.

Two civil litigation attorneys are better than one

There’s a reason we assign two attorneys to each case. All minds work differently, and sometimes one of us will see something that the other doesn’t, like I did with the water bottle. When that happens, we can put that new idea into play immediately, and it can make a big difference for our clients.

 

*Names in this article have been changed to protect our client’s privacy.  

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

A Man in Need Seeks Help from Police, and Receives a Bullet Instead

Millions of people around the world suffer from bipolar disorder. They move from manic to depressive phases quickly, which can make life difficult for them and their loved ones. The condition can often be controlled with medication, but the process takes time as the patient and doctor try to perfect the prescription and dosage. The goal is to level out the emotional peaks and valleys so the patient can maintain a consistent quality of life.

That happy medium is exactly what Kyle Branson* was trying to achieve. Kyle’s doctor had taken him off his medication because he was experiencing negative side effects, including severe nausea. Kyle’s bipolar symptoms were likely to appear again, but it was all part of the adjustment process.

Kyle’s manic episode

One night during that adjustment period, Kyle was doing his laundry. We’re not really sure why, but as he left the laundromat, Kyle was jumped by four or five men. When the police came to break up the fight, they handcuffed everyone, including Kyle. Once they figured out he was the victim and not a perpetrator, they let him go. Even without the added complication of Kyle’s medical condition, it was a harrowing experience.

Kyle, who was badly shaken, got in his van and began to drive home. On the way, he felt increasingly disoriented and pulled into a church parking lot. He’d been sitting there a while, when a police cruiser pulled in to investigate his van. Kyle got out and asked the officers if they could help him get a wrecker. Rather than help Kyle, the officers mockingly replied that they weren’t AAA. Kyle then asked if they could take him to a hospital. Again they refused him help, and began questioning him. When Kyle decided they weren’t going to be of any assistance, he headed back to his van.

The officers pursued Kyle, ordering him to answer their questions and to get out of the van. But Kyle sat there, disoriented and frustrated, holding onto the steering wheel. Reaching through the window, one of the officers tried to pry his hands off the steering wheel, but Kyle tightened his grip. This resistance—albeit nonviolent—infuriated the officers. One officer swung at Kyle with his baton in an attempt to get him to exit the vehicle. When that didn’t work, the other officer took out his service revolver and shot Kyle in the stomach.

Instead of getting help from the police in his time of need, Kyle got shot and nearly died. After a month in the hospital and a surgery to reconstruct his abdomen, Kyle recovered. He was left with a foot-long scar from sternum to navel that would forever serve as reminder of that terrible night.

A civil rights case

Law enforcement officers have what’s known as qualified immunity. It protects them from constantly being second-guessed or harshly judged for decisions they have to make in a split second. Because of this, it requires some extraordinary facts and delicate nuances for an officer to be held liable for using excessive force and thereby violating a citizen’s constitutional rights.

As we dug into this case, we uncovered some discrepancies with the police officers’ story which contributed to the department’s willingness to reach a settlement. The officers fabricated a story about Kyle resisting arrest after being sprayed with mace, to make it seem as though their excessive use of force was legitimate. No mace residue was found in the van, however. What’s more—Kyle had applied to be a police officer a few years prior and had his application denied because of his severe allergic reaction to mace.

The officers also claimed that Kyle attempted to attack them from inside his van with a flashlight. No flashlight was found in the investigation, and no marks were found on either officer.

Perhaps the most significant bit of information we learned was that the officers had received no training from the department on how to deal with people going through emotional or mental distress. They essentially had been trained to treat them like any other intoxicated or disobedient person.

Right before going to trial, the police department settled. In addition to the settlement, the case also helped lead to a change in Ohio law enforcement policy. Now, if officers believe a citizen is suffering from an emotional or mental condition, they are required to stand down and call Netcare, a Central Ohio organization that specifically helps people with special needs. And that’s a positive outcome for anyone who might find themselves in a similar position to Kyle’s in the future.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Immigration Malpractice Threatens to Ruin American Ideals for Hard-Working Man

People around the world seek a new life in the United States, pursuing things we often take for granted, like gainful employment and access to competent legal representation. After both of those things were called into question following a man’s mishandled visa renewal, he sought the help of Cooper & Elliott.

Negligence threatens a man and his family

When Sandeep Chaudhry* came to us, he was desperate. An IT professional working legally in the U.S. on an H1B visa, he had reason to believe the lawyer he’d entrusted with his immigration matters had been negligent with his paperwork—leaving him and his family at risk of deportation.

H1B visas have an expiration date and must be renewed in order to maintain legal working status in the U.S. The lawyer who’d been hired by Sandeep’s employer specifically to help employees deal with immigration matters was taking a long time to produce documents verifying the extension. Sandeep diligently delivered whatever paperwork his lawyer requested, and the lawyer continually assured him that everything was in order.

After time went on without clear proof of the extension, Sandeep became suspicious. Even though his lawyer was telling him everything was ok, Sandeep wanted written proof. The lawyer still couldn’t come up with a document. Sandeep turned to his employer, requesting verification from HR.

In the HR files was a document denying Sandeep’s extension because his paperwork had been filed too late.

This was crushing news. Immigration law states that if you’ve been in the U.S. more than a year past your visa’s expiration date, you could face deportation and be barred from coming back to the U.S. for at least 10 years.

What’s more, his wife’s immigration status was linked to his. If he left, she and their two kids would have to leave too.

Sandeep knew he needed help. He first went to another attorney for assistance. His situation only worsened as that attorney sat on his case for almost six months, finally telling him there wasn’t much that could be done. Amazingly, given his previous experiences with lawyers, Sandeep came to us after receiving a referral.

We were determined to do better for him.

The consequences of immigration malpractice

As we began digging into Sandeep’s case, it became obvious that the immigration lawyer had committed malpractice on multiple fronts: He hadn’t filed paperwork correctly, he hadn’t filed it on time, and he hadn’t kept Sandeep, his client, informed of ongoing developments.

What was most devastating, was that he hadn’t told Sandeep that the extension had been denied, and had instead been telling him that everything was fine.

We prepared to sue the lawyer for legal malpractice. And since Sandeep’s employer had represented itself as the facilitator of his immigration matters and had knowledge of the visa denial (it had been in the firm’s files for two years) but failed to inform Sandeep, we sued the company as well.

Yet as obvious as the malpractice may have appeared, actually obtaining justice was tricky. For one thing, the immigration lawyer and the employer were pointing fingers at each other, claiming that the other was responsible for Sandeep’s predicament.

The immigration malpractice had produced a number of life-altering consequences that Sandeep and his family had to face. First, Sandeep and his wife couldn’t leave the U.S. for fear of not being allowed back in. There was an ever-present worry that their family could potentially be split apart, with Sandeep and his wife being deported to India while their children, who weren’t citizens of India, had to remain in the U.S.

If Sandeep was forced to move back to India, his job prospects would be severely limited, since his line of work required him to travel to the U.S. By the time Sandeep came to us, he and his wife (who both had master’s degrees) could not work because the botched visa extension left them in a state of questionable legal working status.

As a result of their unemployment, they were rapidly running out of money. At one point Sandeep was limiting himself to one meal a day to ensure his children had enough to eat. Even Sandeep’s health was suffering—as the case continued, we noticed he looked increasingly haggard and thin. The entire family was enduring a great deal of stress. Between the helplessness of dealing with the immigration problems and the anxiety that comes with unemployment and financial troubles, they all were suffering.

Immigration reinstatement vs. damages

Just what would constitute justice for Sandeep in this situation? Sandeep’s highest priority was ensuring that he could legally stay in the U.S.—but according to immigration law experts, that possibility wasn’t promising. At that point, we knew we had to proceed with a lawsuit.

As is often the case with people who tend to mess things up, the immigration lawyer was essentially “judgment proof”—he and his law firm had very little money to pursue for damages. At that point, we turned our attention to the company.

Besides, the company was equally responsible for Sandeep’s situation. Our investigation revealed damning internal emails within the company’s records indicating that it had known Sandeep’s paperwork had been mishandled, yet it never tried to fix the problems or tell Sandeep of the issue.

Delivering justice

Our avenue of pursuit now centered on seeking damages; we went the extra mile for Sandeep. Knowing that his trust had already been broken repeatedly—by two lawyers, as well as his former employer—we made sure to update him with the progress of his case multiple times each week.

When we sat down with the company’s lawyers to hammer out a settlement, we insisted that Sandeep be properly compensated for the negligence that had caused such upheaval for him, his family, and their future.

After a 12-hour mediation session, the company’s attorneys still hadn’t yielded the results Sandeep deserved, so we prepared to walk out. Fortunately, the mediator brought us back and said the defense was finally willing to make an offer worthy of consideration.  Sandeep ultimately accepted the settlement.

Mixed results, mixed feelings

The resolution of this case was bittersweet for us. On the one hand, the settlement would help end the privations and immediate money worries Sandeep and his family were experiencing. It would also take some pressure off him and his wife as they sought new employment. At the very least, they wouldn’t be forced to immediately leave the U.S. for financial reasons.

Unfortunately, civil litigation for money damages against the attorney and the company didn’t resolve his immigration proceedings. In that sense, we wish we could have helped more.

There was at least one glimmer of hope, though: Our immigration expert said that the resolution of the lawsuit might help the chances for Sandeep’s visa extension. As part of the settlement, we had insisted that the first immigration lawyer admit in writing that the faulty paperwork had been his mistake, and not Sandeep’s. Our hope is that Sandeep and his family will be able to live in the U.S., recover from their hardship, and thrive.

A true privilege

When people choose to become a lawyer, their reasons are often justice-related: a desire to do good in the world, make a positive change, or help people right wrongs.

The reality is, in practice they often wind up working on cases far removed from those ideals.

It’s not an understatement, then, to say that working on a case like Sandeep’s was an extreme privilege for us as attorneys. Here was this selfless, generous, genuinely good man—honestly, one of the nicest clients we’ve had the pleasure of working with—who toiled and sacrificed to come to the U.S. because he loved everything it represented, only to have the door shut in his face through no fault of his own.

By all accounts, Sandeep should have been bitter and disillusioned. Yet he remained positive, hopeful, and grateful. Like many of our clients, he’s a model for all of us, and we’re honored to have been able to help.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Ohio Family Recovers after a Garbage Truck Destroys Their Home

It’s a story that only seems likely to happen on TV. A garbage truck lost control on an icy curve and careened into an Ohio family’s home at 45 mph. After crashing through the outer wall and almost going through a second interior wall, the truck came to a stop in the kitchen. The impact lifted the entire house off of its foundation, rendering the home a total loss. Although two members of the Rodríguez* family were home at the time, thankfully neither of them were injured.

This truck accident seemed as though it would have an easy resolution. An insurance claim against the waste disposal company should pay to restore the property damage, and that would be that. But that isn’t the way it played out, which is why the Rodríguez family needed a civil litigation attorney, and decided to give us a call.

The obstacle

When the Rodríguezes got ready to rebuild their home, the county in which they lived threw up an obstacle. County codes had changed since the house had originally been built, making it impossible to rebuild on the same plot of land. They would have to rebuild their home somewhere else.

The insurance company didn’t want to be responsible for purchasing a new land plot that would meet building code. The argument was that the negligent party was only responsible for replacing what it had damaged: the house. In effect, the insurance company was only willing to pay for a house that was impossible to build.

Not just a house

A house isn’t merely the brick and mortar it’s made of—it is a foundation for memories. It’s nearly impossible to place a dollar amount on objects that hold sentimental value. When a home is destroyed, there are things that cannot easily be replaced. The Rodríguezes had suffered irrecoverable losses, and we wanted to make sure that they weren’t stuck with a financial burden to boot.

We argued on the Rodríguez family’s behalf that they didn’t want any more than what they were entitled to: a similar house with similar furnishings on a similar piece of property. They wanted a similar home, with all the associations that involves. They wanted to recreate the life they had lived in their old house—an important consideration, given that their son, a senior in high school, had grown up in that house.

Property damage and counting the losses

The insurance company was not willing to pay enough to cover the cost of a new lot or replacing family collectible items. We crafted an argument that clearly laid out all the things the Rodríguez family had lost in the accident. In addition to the physical losses, the Rodríguezes suffered serious emotional stress as a result of the accident and being displaced from their home. When we presented their losses in that light, the request for greater compensation seemed much more practical.

The extra mile and a happy ending

The process of making things right for the Rodríguez family took a long time—from the time of the accident through the initial insurance claim to the final settlement, over a year and a half had passed. A year and a half is a long time to be without a home to call your own.

During that period, we developed a legal argument that ensured the family would be made whole again. But we also had another job during that time: making sure the family understood every step of the process, listening to their concerns and addressing them, and often just providing a sympathetic ear when it seemed like the process would drag on forever. When we came out of the judge’s chambers with a positive result that would allow them to finally build a new home, the relief on their faces was easy to see.

The Rodríguez family lives in their new home today. Not only has their property damage been made right, they’ve been able to restore many of their precious personal possessions that remind them of life in their old home. And they still own the property on which their old house stood. It’s a link to their past and maybe a promise for their future.

The Rodríguez case came to a positive result through a combination of commitment and creativity. If you need that kind of assistance, give us a call—we’re here to help.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.