Success in a Jury Trial (Plaintiff a Tragic Hero)

 

Personal injury jury trials in today’s legal climate are a challenge as many people believe a lot of personal injury cases are frivolous law suits. Here we discuss the formula for a quality personal injury case:

The Formula. A successful personal injury case tells a compelling story. The story that appeals to jurors in the context of a personal injury case is the tragedy. Tragedy involves a hero who has suffered adversity. The hero must challenge the adversity, and never give up. In a personal injury case the adversity is the injury. The injury is challenged through medical treatment. To be compelling the personal injury tragedy requires the adversity to be greater then the hero. This means the plaintiff hero will not be able to overcome the injury. The injury is permanent.

Plaintiff as Hero. The first requirement for success under the personal injury as tragedy formula is for plaintiff to be a “hero” in the eyes of the jury. Here the requirement is honesty. Plaintiff must be true to life and realistic. Phoniness, pretense, or an agenda are killers to the plaintiff as the hero.

Hero Judged by Demeanor. The only time the jury will hear from the plaintiff is in direct examination and in cross examination. According to jury consultant Harry Plotkin jurors  judge our plaintiff more by  how he comes off then by what he says. In other words witness demeanor trumps witness content. Plotkin teaches jurors “assume that the witness’s demeanor, behavior, and reactions are indicative of the witness’s personality [and] honesty.” (yournextjury.com- July 2010, Jury Tip of the Month-“Witnesses aren’t judged by what they say”)

Direct Examination. Jurors do not trust or like a plaintiff who is angry, argumentative, defensive or nervous. Jurors like a plaintiff who appears confident, honest, and does not get fazed by tough questions even when it means admitting a mistake. In fact they like to see plaintiff stumble and/or admit a mistake as this is human. Being human is being like the jurors. Jurors like people who are like themselves.

Cross Examination. During cross examination plaintiff needs to be as polite and comfortable as he was during direct. In other words he needs to be the same person. Never angry or argumentative. Let opposing counsel come across as a bully as plaintiff keeps his cool and remains the same person he was on direct. As far as the substance of cross examination plaintiff should speak slow, speak succinctly, and speak the truth. Whenever possible return to the direct.

Eye Contact. Plaintiff should make eye contact with the jury during direct and cross examination. (In a judge trial or arbitration remember to treat the judge or arbitrator[s] as jurors). I stand close to the jury so my plaintiff will naturally include the jury in the direct examination conversation as he talks to me. During cross plaintiff continues to include the jury with eye contact and talking to them as well as counsel.

Counsel Table and Beyond. Jurors are studying plaintiff and his demeanor when he is at counsel table, and whenever they see him in and around the courthouse. Plaintiff should always conduct himself like he would at a wedding ceremony or other formal occasion. Never show anger, boredom, or excess emotion. Under no circumstances should plaintiff be involved in trying the case as in telling counsel what to do. Passing a note is ok, but it is important for counsel to be the lawyer not plaintiff. Outside the courtroom keep the formal demeanor. No smoking, no joking.

Remember demeanor trumps all else. Cool, calm and collected at all times. In our next post we discuss the opening statement.

    30 Responses to “Success in a Jury Trial (Plaintiff a Tragic Hero)”

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