Establishing ground rules to help jurors judge your case

By Richard Gabriel The Daily Record Newswire Baseball has a strike zone and the infield fly rule. Football has clipping and onside kicks. Basketball has both personal and team fouls. And in the litigation arena there are pre-trial and in-limine rulings. Judges are the umpires and referees. They both make the rules and make the attorneys follow the rules. Litigators understand what playing field they are on and which guidelines they are expected to follow. Not so with jurors. They often know what stadium they are in and how to behave as spectators. But they usually are not given legal instruction -- the rules that guide their verdicts -- until the end of the case. Take a medical malpractice case. Jurors hear the story of what happened at the hospital and expert opinions on whether a doctor failed to diagnose a fatal disease, yet they do not hear the legal definition of "standard of care" until moments before they retire to deliberate. By that time, each juror has already formed his or her own personal interpretation of what was proper or improper medical procedure. That often creates cognitive gymnastics as jurors struggle to blend what they already believe the case to be about with this new set of legal rules. They may throw out the instructions altogether if they conflict too much with how they already see the case. Also, the situation may disappoint lawyers who are convinced they have told the best and most compelling story in the case, only to have jurors vote against them, saying they agreed with their case but could not quite make the connection to the legal requirements on the verdict form. For example, in Casey Anthony's murder trial, the defense spent a great deal of time focusing on the fact that the prosecution could not prove exactly when her daughter, Caylee, died. That information proved important as one juror said the instructions on first-degree murder state that the time between premeditation and murder must be long enough to allow reflection. Since the prosecution could not prove the time or manner of death, the jurors said they could not know whether Casey had time to fulfill this legal requirement. Rules in court serve an important psychological purpose for the jury. We spend months and years steeped in the intricacies of a case, but jurors have to get up to speed in the first hour or two of opening statements. They are thrown into the deep end and have to swim pretty hard to keep up with the tide of acronyms, terminology and concepts in a patent or securities case. Rules help them simplify, organize and use the flood of information washing over them. Rick Friedman, a successful plaintiffs' attorney, has written a popular book for trial lawyers called Rules of the Road, in which he encourages lawyers to use statutes, regulations, industry standards, policies and procedures, training manuals, recognized professional literature and ethical codes to create standards of conduct for the defense. These can become de facto "rules" for the jury. Indeed, many corporations have learned to be more careful with the wording in their marketing and on their websites to avoid creating an unreasonably high standard for the company to meet in a specific lawsuit. So what are the rules about establishing rules for jurors in a case? First, make sure you create rules in your case, or jurors (even worse, the opposing side) will create them for you. Use language from anticipated jury instructions, if allowed, in voir dire, opening statements, witness testimony and obviously in closing arguments. This language will create signposts for jurors and familiarize them with the legal terminology so they are oriented when they hear the final instructions. More importantly, using this language constantly during the trial allows you to integrate your trial story with the legal standards and seamlessly provide a bridge to the jury instructions. Make sure you create a rulebook for every subject matter in your case that might seem foreign to your jury. These should take the form of mini-tutorials. Remember, there is no such thing as being too basic in this context. For example, here is a sample tutorial on the contract negotiation process for a breach of contract suit: 1) When one company wants to buy another company, they each hire lawyers. 2) The companies and the lawyers have a series of discussions about what each of the companies wants. These discussions can occur in person, on the telephone or by e-mail. 3) The companies and their lawyers will then draft a written agreement that is acceptable to each of them. 4) They sometimes go back and forth as they negotiate differences in the terms and the wording. While these may seem more like steps than rules, if they are simple, neutral and clear in explaining a fundamental contextual issue in the case, they become a series of expectations for the jury. These expectations become a set of standards by which the jury will judge the conduct of the parties. More importantly, counsel earns credibility points for clarifying the case. These tutorials can be created to explain how a forensic accountant analyzes damages, how a claims handler evaluates a bodily injury claim, how a manufacturer designs a product or how a driver navigates an intersection. They can also be Occupational Safety and Health Administration or Equal Employment Opportunity Commission guidelines, or a company's typical procedures when handling a worker complaint. These "rules," in the form of tutorials, give a juror context for the conduct and decisions of the parties in the case. They help jurors to establish a "norm" and understand whether the parties deviated from that norm. In the end, these tutorials and rules help jurors make easier equations in their verdict decisions. For example, the plaintiffs in a premises liability case may create a jury rule by stating that the defendants have a policy of not stacking boxes in a store over a certain height. No matter the circumstances, they may state that in this particular store, the boxes were stacked over a certain height, violating their own rules and creating a dangerous condition. Thus, they equate the broken rule to liability. This creates a simple link for the jury to bridge to the verdict form. Similarly, the defense may show how the plaintiff in that same case broke a rule by using a store ladder only intended for employees. Finally, it is important in closing arguments to provide a series of rules by which you advise jurors to evaluate the evidence and even deliberate. That will help guide them in how to look at the evidence in the case. Attorneys who are able to establish the fundamental rules by which jurors should judge a case have a clear advantage as they can create a straighter narrative line for jurors to get from their story to their desired verdict. ---------- Richard Gabriel is president of Decision Analysis, Inc., a national trial consulting company. He is an author of Jury Selection: Strategy and Science and the inventor of Jury Mediations. He can be reached at rgabriel@decisionanalysisinc.com. Published: Thu, Oct 13, 2011