Is your focus on winning or on not losing?
Some defense attorneys tend to focus on not losing rather than on winning. The example in our blog titled “Streetwise litigation: Legitimate tactics for operating outside the rules” is not an isolated or unusual occurrence. Indeed, after watching hundreds upon hundreds of jury trials to verdict, we have the distinct impression that plaintiff attorneys are more likely than defense attorneys to bend the rules in their zeal to capture the hearts and minds of the jury. There seems to be a greater conservatism among defense attorneys, along with greater focus on protecting the record for appeal and comparatively less emphasis on winning the approval of the jury at any cost. This trend of increasing boldness on the part of plaintiff attorneys is one of several factors that have led to the staggering increases in damages awards (nuclear verdicts) in the past several decades. Although protecting the record is obviously critical, it is also true that many cases are ultimately settled while on appeal for an amount that is dictated at least in part by the size of the prior jury award. In short, there is seldom a defensible reason to place the record – or even the bench - over the hearts and minds of the jurors insofar as tactical priorities are concerned.
Observation of plaintiff and defense litigators reveals distinct differences in how they assess and manage risk. Plaintiff attorneys generally are not trying to protect a client relationship. They are simply trying to win. They know that after the case, the client will be gone. Defense attorneys, on the other hand, often are encumbered by a myriad of extraneous considerations including competition among the firm members and other law firms. Relationships with corporate counsel, and especially extension of the corporate client’s continued loyalty to the firm. Although these considerations are not trivial, they can distract from the ability to fight effectively against more nimble and aggressive opposing counsel.
Defense attorneys often orchestrate courtroom strategies based on the goal of not losing when instead they should behave more like the opposition and concentrate on winning. Believing that a case can be won simply because the plaintiff has not carried a burden of proof is a fallacy and leads to impotent courtroom strategy. Every jury trial is like a chess game or a sport, where the best defense is very frequently a good offense. Here are just two examples of the types of boldness we have seen exhibited by plaintiff attorneys:
· In a catastrophic personal injury case involving a paraplegic plaintiff, plaintiffs' counsel filled the audience pews with paraplegic and quadriplegics who simply watched the jury throughout the entire trial.
· In another case, plaintiffs' counsel set up video cameras around the courtroom and used tapes of prior witnesses’ in-court testimony to impeach later witnesses. Defense counsel did not know how to access the same tapes and thus never used them.
The juries in both instances awarded the plaintiffs substantial damages. Although the specific events may not have necessarily caused the losses to the defendants, they serve as exemplars of how defense counsel can be out-hustled and out-innovated by tactics that seem more and more ubiquitous in courtrooms nationwide.
Only hits are counted
Many litigators assume that a judge will deny a request and thus elect to not make the request at all. For example, in venues where supplemental juror questionnaires typically are not used, may lawyers assume they should not even bother to ask for one. In essence they create a denial by the court without even making a request, which, of course, violates Wayne Gretzky’s rule that "you miss 100 percent of the shots you don’t take.” Juror questionnaires present a vital strategic opportunity to tilt the trial playing field by shaping the jury panel through scientifically derived strikes using various psychological measurement techniques. Juror questionnaires also provide an invaluable tactical weapon in supporting cause challenges and defending Batson challenges. Our experience is that challenges for cause frequently determine the outcome of a jury trial because every cause challenge won is like taking a peremptory challenge away from the other side.
In one conversation with a defense lawyer, we recommended a juror questionnaire for an upcoming asbestos case in Baltimore. She said, “Judges don’t allow them in Maryland.” Upon informing her that we had just used one in a Baltimore trial, she then declared, " Well, asbestos judges do not use them.” She had not asked the judge in her trials whether he would accept the use of a juror questionnaire to evaluate the venire because she simply had made up her mind that the judge would rule against it. The fact remains that no statutes anywhere in the 50 states (to our knowledge) preclude the use of such an instrument. Regardless of the legal issues, there is certainly no harm in asking for one. If the judge says no, then you can't do it - but you miss 100 percent of the shots that you don't take.
We recently finished a large mock trial exercise in which some of the lawyers had the opportunity to play the part of the plaintiff's counsel. One of the defense lawyers in the exercise blurted out, “It would be so much fun to play the plaintiff; then you get to do whatever you want to do." We asked him, "Why can’t you do that as the defense?"' He replied, "Well, defendants are constrained by the causes of action." It was then pointed out to him that plaintiffs are also constrained by the same causes of action, whereupon he suddenly became speechless.
What is the real difference, then, between being the plaintiff and being the defendant in a trial? It is a state of mind. Defense lawyers too often restrict their own innate creativity and innovative potential by putting themselves in a psychological cage simply because they represent the defendant. With regard to the jurors themselves, research and experience indicate that jurors discard 99 percent of what they see and hear in making decisions. There is simply too much information in a trial for most jurors. Many defense litigators are too concerned with missing the net when the reality is that, in a psychological sense jurors record only the goals, not the shots on the goal. For example, they may worry that they will draw an objection or that the theme will not be persuasive enough, even when they are being pounded by an opponent who is "throwing everything against the wall and seeing what sticks."
By the end of trial, jurors will have heard scores if not hundreds of objections. Information connected with objections does not carry nearly as much weight in jurors' minds as their impressions of the trial attorney's demeanor and persona. These impressions of the attorney in turn carry less weight than jurors' conclusions as to which party is justified in its position and which party is not. Nonetheless, there is an interaction, or a psychological relationship, between the "face" of the litigator and the "face" of the litigant.
In a dissent and appraisal action taken to verdict, the defense trial team conducted itself in a very courteous manner, always standing up promptly when the jury entered the room. The plaintiff team was more erratic and did not meticulously acknowledge the jury's presence. Witness credibility was a key issue because jurors did not fully understand the technical determinants of the stock price they were deciding. The jury viewed witnesses for the defense more favorably, partly as a result of the witnesses' association with the more polite trial team and partly because the witnesses had been assiduously trained in presenting themselves as well. One juror remarked in post-trial interviews, " We just thought that [the defense team] hung out with a better class of people."
Post-trial interviews reveal that jurors do not remember how many objections are sustained for either side. Themes that are not particularly effective are simply discarded from memory (as long as they are not downright offensive, which is a consideration that points to the necessity of pretrial testing with mock jurors). As long as the conduct is not unlawful, egregious, or reprehensible, the preferred strategy is to take risks, if the risks are reasonably calculated to produce the desired results.
The Role of Cognitive Fatigue on Witness Performance