A funny Instagram post caught my eye the other day – a STOP sign with another sign immediately under it that said, “No stopping any time.” While surly there’s an explanation or with some thought, one could figure it out, it is still a bit of a head scratcher. It also made me think about all the times that jurors receive either contradictory or confusing messages during trial. With years of experience and knowledge about extremely nuanced details of the law, attorneys either do not notice or are not troubled by contradiction and confusion since those don’t really exist in their world. However, jurors are engaged in a highly rigorous and unfamiliar exercise. They are having to sift through and make sense of hundreds of issues, evidence, statements, arguments, claims, legal terms, jargon and then are asked to make a decision based on all of that. It’s no wonder that what they do is look for the simplest path to a decision and that is often done by deciding which party they want to win, then looking for the evidence to support their conclusion.
We’ve written about “motivated reasoning” dozens of times and it’s near the top of the list of theories attorneys should learn about and enact strategies to address. There are also, though, several strategies to ferret out the ways attorneys might inadvertently send “stop/don’t stop” messages to jurors – internal inconsistencies, mixed messages, and twisting paths that all interfere with jurors’ ability to not only understand the case, but understand what to do in order to have the attorney’s client “win.” Here are a few suggestions:
1. “It’s the plaintiff’s burden to prove X and Y; we don’t have to prove anything.” While attorneys understand what this means, to a juror, it’s a “stop/don’t stop” situation since the defense has a whole case they put on, which implies it does believe it has to prove something. Instead of simply declaring the defense has no burden of proof, operationalize what the burden of proof actually means. A graphic can be helpful – show that the plaintiff starts at “0.” Then, as they add what they view as evidence, the defense counters that evidence so plaintiff remains at 0, etc. This allows jurors to see this as the defense is simply responding to the plaintiff, so it’s confusing to say you don’t have to prove anything. Yes, reference the burden of proof, especially in closing, but give specific guidance about what that means and how to apply it.
2. We often see defendants respond to plaintiffs’ claims by providing countless alternative scenarios. The rationale is often that if there are several options for what “might have happened,” the plaintiff won’t be able to meet their burden. However, jurors hear “If you don’t believe us about this one, how about this?” “Don’t like that answer, then there’s always this!” This kills the credibility of the defense and makes it look – well, defensive. It’s imperative that defendants present a clear, re-framing of plaintiffs’ claims in a narrative that resonates with jurors. It should not be a legalistic poking of holes in the plaintiff’s case, but an alternative story that highlights what you believe is the most important evidence and advances a value – a reason to fight for the defendant.
3. Providing alternative damage figures are clear “stop/don’t stop” situations. While we understand it’s often a necessary evil for the defense, it must be addressed with care. Starting the subject with some variation of: “We don’t believe you’ll even get to the damage question, but if you do we think they’ve inflated their numbers…” followed by a long recitation of how the defense numbers are actually the real numbers, is the wrong way to go about it. While this subject needs to be addressed in a much longer blog or discussion, keep in mind these three things: 1) If your liability case is strong, go to the mattress, meaning the alternative damage figure is $0. 2) Re-frame the alternative damage discussion as part of – not separate – from your other themes/responses. For example, if you have built in several ways that the plaintiff is mischaracterizing, misleading, or exaggerating what happened, add their damages calculations as an additional example. You’re not arguing for a “different number,” you’re presenting evidence about why their numbers are another example of why jurors should distrust their allegations. 3) Present an alternative number (a low defense anchor), especially when liability is in question, but change your introduction to something more like: “When making allegations like the plaintiff has done in this case, they must prove their claims – all of them, including their damages’ claims. Because they’ve asserted these damages, we will address them just as we’ve done with the other claims in this case.”