Attorneys and trial consultants are understandably interested in any information on how best to persuade jurors and obtain the best possible outcomes for their clients. While tips and hints for success are certainly helpful, just as valuable can be examples of what not to do. In their recent Hofstra Law Review article on the poor performance of two attorneys in a personal injury trial, Bruce Green and Karen Bergreen use their experience as jurors to generate a great list of “don’ts” for any litigator.
Both Green and Bergreen are experienced legal professionals. Green is a law professor and Bergreen is a former attorney. Both happened to served as jurors on the same trial in which a tenant of a New York City-owned apartment sought damages from the city. The plaintiff alleged that she was injured when part of her bathroom ceiling collapsed and struck her on the head.
The main purpose of Green and Bergreen’s article is to examine whether the government’s civil attorneys should bear the same exceptional duty to “pursue justice” as the government’s criminal prosecutors. But in exploring this question, Green and Bergreen describe a “keystone cops” courtroom experience that might have been amusing had the authors not been obligated to sit through it as jurors.
The problems began almost immediately during jury selection. According to the authors, “Plaintiff’s attorney took extensive breaks in between the utterance of each word he spoke. Every time a question was answered, he needed to consult with his myriad papers for a reason that remains a mystery to us” (p. 104). Things didn’t get any better when the city attorney asked her questions of the prospective jurors: “Instead of using questions to put forward her theory of the case, she asked if we could be fair. She asked what books and magazines we read … [W]e realized that the city’s lawyer asked general questions only because she knew nothing about the specifics of the case” (p. 104). As a result of the long and meandering voir dire, jurors soon realized that, “This was nothing like Perry Mason. It was more like Survivor, except in reverse. The idea was to get voted out of the room” (p. 105).
As this description illustrates so well, during jury selection:
• Don’t be unprepared with your questions so that you have to pause or consult your notes excessively.
• Don’t bother asking jurors if they can be fair. Ask almost anyone if they are a fair person, and they will say they are. But in fact, no one is perfectly fair. Everyone has biases and some of these biases can affect how jurors will view the evidence. Voir dire questions should be used to identify relevant biases in prospective jurors.
• Don’t ask what books and magazines people read. Unless the case involves publishing, copyrights or something else directly related to books and magazines, that question doesn’t get you very far. What is the attorney hoping to gain from the answer? The juror’s level of education? Possibly their political orientation or religious beliefs? Why not just ask those questions directly if they are somehow relevant? The best voir dire questions explore jurors’ experiences and attitudes toward case-specific issues. Most other questions yield relatively little useful information.
And unfortunately for the jury, things got no better during opening statements. “Plaintiff’s lawyer told us in as many words and pauses as possible that his client was hit and injured by the fallen ceiling in an apartment building owned by New York City. He added that the plaintiff’s quality of life had deteriorated. In response, the city’s lawyer opened with a reminder to keep an open mind and suggested as she had at the onset of voir dire that somehow the city was not responsible for maintenance of its own buildings because those buildings were overseen by the building’s tenant associations” (p. 106).
The key "don't" here is that in the opening statement, under no circumstances should you:
• Fail to tell your story! How was the plaintiff’s injury caused by the defendant’s negligence? What exactly did the defendant fail to do? There was apparently no mention of this in the plaintiff’s opening. Similarly, from the defense, jurors would expect to hear counter-arguments explaining the ceiling collapse. Was the plaintiff or a third party somehow responsible? And why would oversight by the tenant’s association mitigate the city’s liability as owner?
With no story to guide them, jurors were unprepared to hear from the witnesses and did not understand their relevance: “We [thought we] were ready for our first witness. At least we would hear what happened to the plaintiff. Instead, we heard from an employee of the city’s housing department” (p. 106). Even worse, this official was ill-prepared and unpersuasive: “He was very defensive. We learned that he was deposed some time ago and that he may have given answers that inadvertently helped Ms. Tenant … Perhaps the city’s lawyer reprimanded him for providing these answers, which he suddenly appeared to disavow. He said that he was an honorable man, several times. It became clear that he was incapable of giving a simple answer to a simple, yes-or-no question” (p. 107). The authors concluded their description of this witness by stating that, “we all non-verbally expressed to one another our confusion as to the purpose served by this testimony” (p. 107).
The plaintiff and her daughter testified soon thereafter, but were also unpersuasive. Their account of the collapse and the resulting injuries did not match the ambulance and hospital reports. The plaintiffs’ claims about a diminished quality of life also rang hollow. But the defense attorney seized on none of these opportunities during cross-examination and never asked the plaintiff or her daughter about the discrepancies in the reports.
When it came time for the city to present its defense, “instead of attacking [the plaintiff’s] credibility with better witnesses, [the defense attorney] kept focusing on whether the repairs were the responsibility of the tenant association or not. We did not care … As a jury, we were given no reason to believe that the tenant association was not an agent of the city” (p. 110).
Jurors also thought the city’s witnesses were disappointing: “The orthopedist who saw the plaintiff came off as a – forgive the term – ‘crazy, old guy’ … He had not practiced medicine in years and instead saw patients once a week as a paid expert for the city. He answered questions to the extent that he thought the city would be pleased” (pp. 110-11). Then, the defense called another expert, “another doctor engaged solely in the practice of representing the city. His interpretation of the MRIs contradicted that of the crazy, old guy several times” (p. 111).
These accounts offer several “don’ts” for witness testimony and the presentation of a case in general:
• Important witnesses should be well-prepared for their testimony. They should be told what to expect and how to answer questions directly and honestly. If there is damaging deposition testimony or conflicting reports, attorneys should ensure that witnesses can explain or justify those discrepancies.
• “Professional witnesses” need to be cautious about being too one-sided in their testimony. Jurors understand that paid witnesses are not disinterested parties and attorneys should be prepared to spend additional time explaining these experts’ credentials and having them defend their positions. Clearly, attorneys should also ensure that expert witnesses don’t contradict one another on the stand!
• How do your central themes relate to your story? Clearly the defense wanted to argue that the tenant association, not the city, was responsible for the building’s upkeep. While that could have been one of the defendant’s themes, it was clearly not a sufficient defense on its own, and should have been part of a larger defense story.
After two weeks in court, the jurors were informed that the parties had reached a settlement. The authors were disappointed by their experience in the jury box, but their article provides us with valuable examples of what not to do.