Larry Hall, Partner at Chartwell Law, joins Bill Kanasky, Jr., Ph.D. and Steve Wood, Ph.D. to break down the process and positive outcome of a recent trial. Larry shares an overview of the case, how mediation went, and what the demands were from the plaintiff attorney. The group discusses the jury research that was conducted for this case, how the research was set up, what the legal team wanted to learn from the research, and what some of the findings were in the research, including surprises. Bill, Steve, and Larry also talk about identifying pro-plaintiff and pro-defense jurors based on the jury research and how they used the research findings to develop juror profiles, voir dire questions, and their opening statement plan. Larry then describes the process for jury selection, how they approached their strikes, and how the jury research informed both his opening statement and his closing. Lastly, Larry talks about the curveballs they experienced during trial, how his team handled them, and his client’s reaction to the final verdict.
Full Episode Transcript
[00:14] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Very special episode. Got two guests and you know you know them both. Uh Dr. Steve Wood, my colleague. But we also have Larry Hall, trial attorney, St. Louis, Missouri, who by the way was on episode number 53, which is about four years ago, and and and over 200 episodes. Larry, I think we have to get you on a little bit more often than every 200 episodes. Do you agree?
[00:46] Larry Absolutely, Bill. I’m I’m up for it. Uh anytime. Uh always a good conversation with you and Steve.
[00:54] Bill Yeah. And uh Steve Yeah. Steve and I have been tremendously busy. I know you have. And um I’m very excited about this because uh as you all well know. Um you know, the plaintiffs bar is highly coordinated, highly sophisticated. Uh and I’ve mentioned it several times, they have they have several podcasts out there. Uh and I think that they’re actually well done. And one of the things that they do in their podcast, which I’d like to do more of, is they break down a lot of cases. Um kind of do the post-mortem. And that’s what we’re going to do here. uh today uh Larry with one of your cases. Now, before we jump in, I just want—So, anybody watching on the YouTube network, you see how beautiful these two bald heads are. Larry’s is better than mine. I mean, this is like you got Curly Neil going on here from the Harlem Globe Trotters. I’m not that good. You got some really good lighting, too. But I’m very jealous. I don’t know. Maybe one day um Dr. Wood can join the club. I’m not so sure. I’m not sure he has the head. You gotta have a good round head.
[01:55] Steve Yeah, I might not be able to pull it off.
[01:58] Bill I’m not sure you could pull it off, Steve.
[02:00] Larry Yeah, you do. Everyone who has to wake up and do their head every day, that’s just a man that’s not confident in the shape of his head. Uh those of us that are bald, we live without fear. We know exactly what it looks like and we’re and we’re ready to show it off.
[02:13] Bill Like when we walk into a room, everybody knows we’re serious. This is really—So Steve, I’m not trying to like ostracize you here. I’m just—
[02:19] Steve Yeah, maybe I’ll—Maybe I’ll I’ll try it with a skull cap. uh fake one for the next podcast just to see how it feels. Uh and then maybe I’ll move forward from there.
[02:30] Bill Hey, it’ll always grow. If you ever want to try to join the club, it’ll always grow back. You may you may want to keep it. Who knows?
All right, that being said, let—Okay, so I want to take a deep dive into this case and uh Larry uh uh Steve uh helped you in various aspects of this case, but let’s do this. Why don’t we give you, can you give the audience kind of a 30,000 foot kind of overview uh of this case and some of the challenges that you guys faced?
[02:59] Larry Yeah. So, uh this was a relatively straightforward um accident. The the plaintiff is either sitting stopped in traffic or going very slowly and my uh commercial driver uh runs into him at a high rate of speed. Uh it was unknown exactly what that rate of speed was. The testimony at trial was it was likely between 55 and 60 miles an hour. Uh my driver uh did not have a memory of the events surrounding the accident, he was unbuckled and struck his head uh on the the windshield. But, indicated that in the two seconds before the accident, which is what he could remember, he remembers attempting to brake and and steer to uh his left to try and avoid the accident, but was unsuccessful. So, uh right out of the gate, we have uh a clear liability uh case, and it was a case with uh significant damages. The plaintiff’s treatment kind of started um mundane uh physical therapy, chiropractor, but then uh eventually proceeded to have a surgery that was unsuccessful. And so, uh by the time that we reached trial, we were facing uh not only a claim for approximately six or $700,000 in specials, uh but also that we had taken away uh the occupation that this gentleman loved, which was driving a truck. And so, uh, by the time trial rolled around, we had a a back surgery case, significant, uh, physician restrictions, and the inability to to do the job or live the life, uh, that he once lived. So, it certainly was a challenging case from the outset.
[04:40] Bill So, when it come now, we we know that so many of these types of cases um, resolve, they settle before trial. Can you again don’t mention any names, no proper names here, we just keep it general. Uh can you can you kind of describe um did you guys mediate the case? Were there any kind of negotiations and how that process uh worked and maybe where some of the hang-ups were?
[05:04] Larry Yeah, there there uh was the mediation. Uh it was short. It it it did not go well. Uh throughout the entirety of the case, the plaintiff uh never made a demand below our $3 million policy. So, uh at various stages uh there were different uh amounts offered. Uh ultimately there was an offer of judgment of a million dollars that was made. Uh six to eight months before trial there was eventually a $2 million offer that was made and that was declared our best and final and and to my client’s credit they stuck by that and uh that was the last dollar we offered on the case. It was rejected. Uh the $3 million uh demand was withdrawn. The demand became $5 million and off we went to trial.
[05:51] Bill Now, um again without mentioning any names, can you describe, you know, we—I had a whole podcast on like the different types of plaintiff attorneys, right? What like what was the what what type of plaintiff’s firm and then specifically plaintiff’s counsel uh were you going up against here?
[06:09] Larry Yeah. So, uh plaintiff’s counsel was skilled. They know uh the jury pool uh they know the venue uh they they did candidly what I would expect of any high-level attorney uh in handling this case they retained the right experts and what was interesting we got thrown a little bit of a curveball uh they brought in um someone who’s very involved in the um American Trucking uh ATAA a plaintiff organization uh that that’s relatively high up in that gentleman named Tim Whiting uh came in at the end to kind of help uh lead the trial efforts. He um he he closed the case for him and did the jury selection. So, not only did we deal with a pretty sophisticated counsel throughout, but then at the end um also had a very talented trial attorney come down from from Chicago to Southern Illinois. This was tried in Benton, Illinois in federal court. Um and and so um it was high level attorney work.
[07:11] Bill Let’s talk about that. Um I see this happening more and more. Uh do you see this happening more and more where um it happens on both sides where you have you know the parachuting attorney comes in more towards the end. Uh the plaintiffs do this too. I mean the defense defense often does this particularly maybe when a excess level kicks in and they bring in somebody else. um have you been seeing that more and more and kind of as a defense attorney, how how do you adj—how do you adjust to that? Um when when when that kind of falls in your lap?
[07:46] Larry Sure. So, um you you do see it more and more. I see more and more uh plaintiffs lawyers teaming teaming up, which is smart. Uh candidly, uh it’s a good idea. I think that that each of us has strengths and weaknesses and I think that when you find another attorney that that matches you well. Um it’s always a good idea to team up that you know the benefit that I have over some of my competitors. I’ve never been the smartest person in any room I’ve ever been in. And I think that’s to my uh to my benefit. I I try to learn from everybody. So, it wasn’t you know in this case we we had our strategy mapped out um relatively early on. Uh but what it what it did do is it revised some of the ways that I planned to handle opening and closing. The original counsel that was retained, I thought I had a pretty good feel for how she was going to argument—argue it. He introduced a little bit more of a wild card because I was not familiar with him over the course of this case. I wasn’t exactly sure uh the angle he was going to take with it. So, I I I had to have uh more flexibility when it came to, you know, how where the anchor was going to occur, when it was going to be said, how I intended to respond to it. Uh I had to I had to be prepared to be agile um at trial.
[09:03] Bill Now, sticking on this subject, do you now I’ve seen this work I’ve seen this work um a lot and I’ve seen the defense try to exploit it. Tell me, um, was there any, uh, cuz I think, you know, kind of the instinctual response to this is, okay, well, you know, if the jury finds out they brought in some big shot from Chicago that’s not a local guy, maybe that’ll work against him. Did you try to play that card at all, or did they front that by saying, “Hey, I’m from Chicago, but this is an important case, and actually that’s why I’m here. This case is so important.” How did that play out in the courtroom?
[09:37] Larry Uh, it really it really didn’t, honestly. uh the plaintiff’s attorney referred to him as as their partner uh for this case and so um you know I I really had no issue with that. We were trying the case in Benton, Illinois. It was a lot of St. Louis lawyers. So, I think to to call any of us locals might have been kind of overstating it. And so uh you know Bill, I have the firm belief that that that you got to be the most credible person in the courtroom. And I felt like calling out a Chicago lawyer when we were St. Louis lawyers. It just it just it wasn’t going to play well. My client was a local guy and and so I wasn’t concerned about the lawyers. I really felt like the witness credibility we had the upper hand in and that’s really where I spent my time focusing.
[10:21] Bill Got it. Now, um so you guys did some mock jury research which which I I want to hear about. So, um, before you retained us and specifically Steve to help you with this case, what were the types of answers that you wanted to get from the from the mock jury level because you had some obvious challenges here in this case?
[10:38] Larry Yeah, we wanted to see we wanted to see whether our witness evaluations were accurate. We thought that we had a very likable uh, plaintiff. We were we were pretty confident in that, but uh you know, we’re just we’re just kind of sticking our fingers up in the wind and and and seeing what we think when we do that. We we’ve done a lot of it. I feel like I have a pretty good handle on when we’re likable and when we’re not, but uh we wanted to get a sense of what the jury thought of the various witnesses. We thought that that with the money that they were going to ask for that there was going to be some problems um on the other side getting to that level. Uh there there was also just a lot of this gentleman had had a prior surgery um and and and had prior back pain complaints and so we also kind of wanted to understand how is it is the jury going to deal with that and again this wasn’t an immediate surgery. He went and got some conservative care and eventually once the conservative care uh went on for some time then it was decided uh to do a surgery and and we thought that we had a really credible argument that that this was not any acute injury but but a natural degradation of the spine as time went on in a gentleman who had worked hard labor and driven trucks and you know had some some some health challenges was not a healthy individual you know heavy smoker, obese, you know a lot of that we see in our cases. And so, we thought we had a really credible argument that it was unclear if there was really a causal link between the significant portion of his injuries and and this accident even if they were able to overcome that hurdle. We didn’t feel like it was a case where there was going to be a multiplying factor to to those damages.
[12:23] Bill Yeah. Steve, talk a little bit about the research design and kind of how you set up the project and and and why you set it up the way you did.
[12:32] Steve Yeah. So, what we we did was a we did opening statements uh you know just the regular general opening statements and then what we did was went into witness testimony had them view the witnesses and then it gives us an opportunity to to rate the witnesses. Gives the the witnesses or the jurors an opportunity to hear from the witnesses, get open-ended responses so that we get better feedback and thoughts about the witnesses and then did the closing statements kind of more of a like trial-like format than it was more of as I know Bill you love and Larry I know you don’t love the the clopening type formats.
[13:02] Bill It’s like running the wishbone offense in in 2025. Uh Steve, can you can can we run the spread offense here at uh CSI. Steve, can you talk about um the differences in uh measurement, both sensitivity and accuracy by setting things up the way you did versus kind of the more again historical and traditional uh clopening where they’re they’re putting everything on it at once and then taking measurement afterwards. Whereas we divide things up in sections.
[13:35] Steve Yeah. And one of the biggest reasons why you do it is because when we do opening statements for the plaintiff, then we can take a measurement about where jurors stay stand as far as who they’re who they’re siding for, how strongly they feel, then you get a chance to do it again after the defense opening. Then you get a chance to do it again after each witness. So rather than have let’s throw it all in for a 90-minute presentation and see how the jurors feel, we had multiple iterations of being able to measure it. And you can see where jurors will essentially move. Larry, and I’m going to talk to you a little bit about jury selection and what we identified from that. But more often than not, you see when you’re taking it multiple times is you’ll see a juror who might be siding with the plaintiff at one point shift and then go to back to the defense. Then they shift and they go back to the plaintiff. They shift and go back to the defense and they’re constantly flip-flopping um throughout. And it just gives you a sense, a better idea of how these jurors are kind of on the fence throughout. Now, we did have some people who were strongly on the side of the defense right from the get-go, strongly on the decide side of the plaintiff right from the get-go. And I think that was helpful, I’m assuming, for for Larry, which we had conversations afterwards about identifying those jurors who were both on both sides right from the jump, you know, and how we could approach it from jury selection standpoint. But we wouldn’t have known that how entrenched they were if we hadn’t multiplied— if we hadn’t done the measurements over and over and over again.
[15:02] Bill Right. Yeah. And and that’s and and that’s really really the key and why um the clopening doesn’t it doesn’t give you that. It’s really not a sophisticated way to to do research. It’s actually very basic and it can be very misleading because you don’t have those measurements um throughout. So, it’s hard to it’s hard to weigh various you know variables. Um, so I want to talk about jury selection uh in a second. Larry, what were some of the like main things that you learned from doing the mock jury research? And were there any surprises that you—Oh, wow. Didn’t didn’t see that coming.
[15:33] Larry Yeah, there there were both. Uh what we what we learned is that out of our panel of I think 23 if I remember correctly it was it was somewhere in the low 20s. We had three different jurors juries uh that that that most of them were very reasonable in in their damage awards. We had one kind of runaway jury and that was was was driven by two individuals. And so, what what we learned was that that the danger in this case is a very strong and passionate plaintiff juror who could essentially overtake the will of the group.
[16:11] Bill Yeah.
[16:12] Larry And and and and lead to a big number. And and what we were able to do and we kind of dive into this when we talk about the jury selection part is is postmortem, we looked at the characteristics that that these individuals had. And obviously that was at the top of our list for what we were looking for when we picked the jury.
[16:29] Steve Yeah. And that’s one that’s one thing I wanted to go back and and mention. I’m sure most people know, but what I didn’t get to is that we did have three groups that we separated out and allowed them to deliberate and then Larry and myself and the others got a chance to watch it, which allowed us to see the point that Larry was bringing up about how that one kind of runaway jury was driven by two individuals. Which allowed us to help develop this kind of personality profile that we wanted to look for in jury selection.
[16:55] Bill Yeah. And Steve, talk more about that because I think that’s really key. And um you know, when we had Tony Batista, we talked about our big case in New York City, which you know, this that was a monster monster monster, hundreds of millions of dollars, right? And how that that jury profile is so critical, but you have to collect data and analyze this a certain way um to find these characteristics, right?
[17:16] Steve Yeah. And I, you know, it’s always like talking about, well, I mean, I guess Larry, how do you feel when you get a chance to see the jurors deliberate? I always talk about it being kind of like how the sausage gets made. I mean, I know it can be empowering, but also can be terrifying, can it?
[17:29] Larry Yeah, it sure can. Especially when you felt really good about your evaluation going into it. And I don’t know if if you recall this or not, Steve, but I was tasked with listening, which it was a blessing, honestly. I was tasked with listening to the runaway jury. So, so I listen to every minute and so I see, you know, uh, my associate and you with the other juries kind of giving thumbs up and and, you know, we’re looking pretty good and then I’m just giving the the thumbs down. This is off the rails and I’m I’m like, man, this is going to be a heck of a report uh to write about it. But but what what started to become clear is during those deliberations uh we got the chance to look at how those jurors had moved throughout the case and and what we realized uh was that there were a number of of jurors on that panel who looked like really favorable defense jurors and they probably were but they weren’t followers or they weren’t leaders. They were going to be followers and and even though they felt passionate, we knew that that that they were going to succumb to leaders who didn’t agree with them. And so, when we looked in the other rooms, it was much more of a discussion versus being driven by individuals. And so immediately we had some characteristics to look for um in addition to some very specific things that that if we were going to have a leader on the jury that was going to be a a a potential worrisome point for us and someone that we even that we needed to be really comfortable with uh coming in.
[18:59] Steve Yeah. And I want to get I want to get back to that and then I’ll kick it back over to you Larry on that as far as that goes that I think often gets overlooked as far as jury selection is who do we want who’s a good juror? Who’s a bad juror. But to your point, what you were saying is you could get a bunch of good jurors that are on your side that are that are weak that aren’t going to be leaders. So, it’s not necessarily a matter of can we stack the deck in the box with all the people that are going to be good for us. It’s can we also make sure we identify who the leader is that’s going to basically overpower the other jurors.
[19:29] Larry Yeah, we had some great jurors in that room based on their survey responses and and they folded tent and stopped talking as soon as these particular individuals called them out in an aggressive way. They were they were not willing to push back and they just they just folded tent and and that was it.
[19:48] Bill Yeah. I have a question for both of you because Steve, I know you’ve been in this position before. I’ve been consulting on jury selections, and I have purposely told counsel to leave a juror on and not strike him and everything on paper screamed plaintiff. But this the person was so softspoken, not really mature, not a big talker, and I’m like, we’re not wasting a strike on some like I don’t care because they’re just they’re a follower. They’re going to get frustrated and go with the crowd. I’m looking for people that have very strong communication skills and people that are very emotional. Steve, can you talk about the importance of that specific factor because I think like we see defense counsel get caught up so often on just looking at demographic variables, right? And you’re looking at like these kind of classic signs, which none of them are predictive by the way. We we know that. And if you’re not really looking at someone’s, you know, their communication skills, how not necessarily emotional in a sad or happy way, but when they communicate, are they a passionate communicator, right? How do they come across? Do they have a presence in the room? Because that person, regardless of their demographics, that person is going to be the conductor of this train, right, Steve? And how you really need to be looking for that in jury selection.
[21:04] Steve Yeah. And that that’s definitely something that often gets overlooked is that you like you say you get too locked in and focused on on getting rid of a juror because they might be quote unquote bad for you rather than taking into consideration about whether or not anybody—I would call them mousy, right? Whether they’re going to be in there and anybody’s actually going to listen to them. Yeah, they might have opinions or something, but they’re just going to get rolled over by by everybody else in the room. So, you have to be strategic and get rid of those other people who are more of outspoken ones. You know, and I think one of the other things when we’re talking about jury selection about outspoken ones, how many times, Larry, have you had it before where you might have a juror, and maybe it happened in this case where you have a juror that says like one good thing for your case, and everybody’s like, “Oh, they’re going to be good. Didn’t you hear what they said about that?” But then they’ve said like seven other things that have been really bad for your case, and you have to take those in holistically and rather than focus on the one, you have to look at it on the larger scale.
[21:56] Larry We even had a I have a great example from this case that happened. Uh I tried a case back in uh November of ‘23 and we got a good result. It was it was about a $3 million result. We were hoping for a better result that came in right about where the case could have settled before the the suit. But in that case, uh there was a union president that came in and testified, and I think kind of won the case for the plaintiff and and basically when I deposed him, he was in a $500 suit. He had an office job. On the day when he testified at trial, he showed up from a job site with his eyes covered in dust. And I think it worked. And and so in this case, we we actually had a juror a juror on the panel who said some things that that that in isolation were favorable favorable for the defense, but she also was from a very proud union household, and her husband was a union member. And so, I said, look, and she was a strong personality. And I said, “If I if we’re gonna lose this case, uh, we’re not going to lose it with,” I said, “My gut tells me that that she’s a huge risk because she’s a very strong personality.” She’s a leader and and she’s going to go home at night and and it’s possible in a strong union household that there’s an explanation to her that there’s there’s, you know, that that potentially there’s something that you need to stick up for for workers and and you know, and unions have their purpose, but but in lawsuits, you know, they can be they can be dangerous because they often facilitate presentations from plaintiffs bars and things like that uh to help those folks when they get injured. And and so even though she says some things in isolation, my associate was like, I I don’t understand. Why are you why are you saying that’s one of our hard strikes? And I said, because she’s someone that could that could drive the jury to the number. I said, when I look at this panel, she’s someone that could drive the jury to the number and and it’s just not a risk we’re going to take when we looked at the panel as a whole.
[23:49] Bill Yeah. So, can you guys describe how you worked together prior to jury selection to set up a strategy? And then Larry, if you can then um expand on that and just kind of uh tell us what the vier was like, what the judge’s parameters were, things like that.
[24:06] Steve Yeah, I’ll start. I mean, after when we we did the mock trial and and got that information and stuff, Larry and I talked a little bit more about on strategy, how we were going to approach it, what we learned from the mock trial as far as who we thought we did or didn’t want, kind of the voir dire questions that that we wanted to do. So, I kind of we had that kind of informal uh conversation and then he kind of took it from there, but a lot of it was informed by the mock trial research and what we learned in the mock trial research. That was kind of kind of the leadup to to jury selection. So, at least by even though I wasn’t there physically and and didn’t do that, Larry had the ammunition that he needed to be able to go into jury selection at least.
[24:44] Larry Yeah. And I would say I would add to that, Bill, that kind of our post-mortem with Steve, he wasn’t at trial, but I mean, we had a plan. I mean, we knew really we knew that day before we walked out of the the hotel conference room what our plan was going to be, but but we refined that um prior to trial and I walked in um you know, confident as hell and and exactly what my mission was uh when when we were going to pick a jury.
[25:12] Bill I think I want to talk about this because I’m going to say something very controversial here. This is this is not going to go over well, but you know, we’ve been down this road before here on the Litigation Psychology Podcast. Um, Steve and I and our team are beyond busy. Like the capacity is crazy, right? It’s just the volume’s nuts and we get all these calls like, “Come pick this jury. Come pick this.” Like it’s impossible. You can’t do it. It’s all for time. It’s just it’s impossible. And so, what we have our our view on this is that I’m not saying having a jury consultant at trial is a bad thing. What I’m saying is I think the bigger thing is having the plan. I I think when you have the right plan, you have the right jury selection strategy, you have the right voir dire structure, you’re hitting the—that if you have that plan and you’re you’re you’re a trial attorney, you’re in really really really good shape. I mean, again, because remember, you’re not going to be able to hire a jury consultant for every single trial you have. You got to be able to do this stuff yourself. But I think where I think even more value is than having, say, Steve there right next to you is you and Steve spending several hours pouring over these results, making a plan together to send you into trial, fully armed, because—Again, and Larry, we get calls, this and Steve’s gonna laugh when I say this, we get calls of people going, “Can you show up and help pick this jury?” Right. And I’m like, I here’s here’s our new policy starting this year. I go, “No.” And they go, “Well, you’re a jury consultant. That’s your job. Just show up and help pick the jury.” I go, “No.” They go, “Why not?” I go, “Does a surgeon go into surgery with a scalpel like without imaging, right? Are you just going to start cutting?” No, no, no, no. We need data to develop the plan. Like, I’m not—like I don’t—I don’t like—I don’t go in there with a crystal ball, right, Steve? I mean, that’s impossible. So, I’m glad that you guys worked out the plan. And what was your—like describe your level of confidence in the plan even though Steve wasn’t there?
[27:15] Larry Oh, my level of confidence was 100%. I mean, we knew—we knew that we had—and I—and I affectionately say—my associates will tell you, I got the receipts. I mean, that’s what I say. I got the receipts. You know, I know we did the work. Uh, you know, the client—we were lucky enough to have a client that supported putting the work going in. And—and—and I’ll expand a little bit on the jury selection process because it shows why the plan was so important. So, we were—we were set to go uh to trial on a Monday and uh the Thursday—so not the week before trial but 10 days before trial—we get a notice, “Hey, your trial’s been kicked to start Tuesday.” Well, in normal people’s lives, a 24-hour delay isn’t a huge deal. When you’ve scheduled experts and all kinds of stuff, it—it causes all kinds of heck to break loose. And so, uh, plaintiff’s lawyer and us contacted the court and said, “Hey, uh, we—we realize it’s—it’s, uh, uh, only 24 hours, but we’re going to either need to start on Monday or we’re going to need a continuance.” And so the court called us back on Friday afternoon and said, uh, the judge has a way that we can still have the trial. We’re going to do, uh, we’re going to bring the panel in Wednesday morning before trial. And, and the reason that we couldn’t start trial on Monday was they had a large class action. So, they had a huge panel going in. It was—they were at capacity. And so, by going in early, we were able to pick our—our jury and then we were able to start at 10 a.m. on Monday. But the point of that story was, you know, “Are you guys ready to go Wednesday?” “Sure. Yeah. When do you want us to show up? We’ll go pick a jury this afternoon.” You know, because we knew the plan, you know, it was—it was already done. And then it even became more important because in—in talking to the court, uh, the court had some initial questioning that they did and then the attorneys were going to get 15 minutes with the panel—24-person panel. The attorneys were going to get 15 minutes.
[29:05] Bill Wow.
[29:06] Larry And so, you know, I also practice in Missouri state court where usually plaintiff takes three or three and a half or four hours and then I usually am short and take an hour or an hour and a half. So, so, so this is—this is kind of the—the shotgun approach. And so, the—the benefit of having the research is the way that the judge did it—I—I’ve never seen this done before. They had a handheld mic, and they passed it around to the whole panel. “Where are you from? Are you married? Do you have kids? What’s your job? What do you like to do in your free time?” Wow. And—and I will tell you that—that—that listening to that based on the research we had done, uh, we had—we had two or three people that we were uncertain about. And—and other than that, we had a really clear plan going in on—on—on candidly how we were going to try. And—and—and by the time I got up there, there was a couple people I was going to try and rehabilitate. But—but other than that, what—what we did is we just covered the key characteristics that we knew we didn’t want on our jury, which was identified as people with—with chronic pain that—that were seeing uh pain clinic and/or uh—uh people who had undergone a back surgery and were suffering complications from it because we knew from the mock that—that some of those people have frustrations with insurance companies and with trying to get care and they’re very sympathetic that someone says that they were in pain and they weren’t really concerned—concerned about causation. And we knew we needed jurors uh that were uh concerned about causation. So the judge um went around, it took about an hour and a half to get through all 24 to get up and say their piece and then uh plaintiff stood up and—and—and started with, “Hey, what if I told you that we were going to ask for hundreds of millions of dollars?”
[30:51] Bill There you go.
[30:52] Larry Um and—uh and I objected uh and it was sustained. Uh and then um uh he asked some questions about, “Well, you know, uh, you know, we’re going to ask for some large sum of money, tens of millions of millions” so there’s some—there’s conditioning going on right away. This—this judge in particular did not like that though and did not like the conditioning. And this was a rural jury and—and the jurors were trying to figure out what was going on. He’s talking about these big amounts of money. I’m having objections sustained during—during voir dire, which is—I don’t like to object to voir dire. I save them for when I think I’m—I’m—I’m really gonna win because especially with only 15 minutes, you don’t want to be seen as trying to hide something from these folks that are—that are in there. Um but—but didn’t really—he—he identified um—he identified some—some pro-defendant jurors uh and—and was able to get enough to—to get them struck. But—but when—by the time I was going up there, I knew kind of who was lost causes uh for us. I knew who was lost causes for plaintiff and I had a very direct plan on what I wanted to do and—and I executed it. So, I went up and—and talked about the characteristics that we knew. Funny thing, the characteristics that we were worried about uh—uh two of the panel members raised their hand and indicated that they um had those issues and we—I had already had them struck on my list. I mean, from when they were talking initially, we knew that those weren’t—that they were not going to be good jurors from us. So, it kind of confirmed um what we already knew. So, then uh from there, after 15 minutes for each, we moved into the—the jury selection phase. The way that—that this judge does it is each side had to tender three jurors. Back striking was allowed within the panel. So, the way it worked was uh we did all the challenges for cause and then um plaintiff had to go first. So plaintiff uh had to tender the—the first panel and so um they—they used preemptories—they used preemptories on one of the folks in the first panel and so then it got to us and—and so and then so once you had three seated they were seated and you couldn’t backstrike. So, then it was our turn to um to tender a panel. We did that. By—by the time that we got to that selection because of the work we had done with Steve, we—we knew the exact three jurors we wanted to strike. We knew exactly how far based on the—the strikes for cause that we were going to get in the panel and—and—and just candidly I think we were more prepared for the process than the other side. And usually, the defense is not the one that is that. I mean, I—I think that uh I—I like to, you know, like you, Bill, I’m a—I’m a junkie on plaintiffs’ podcasts.
[33:37] Bill Yeah.
[33:38] Larry And—and they—they almost always time feel like they have the upper hand in that regard. We picked a jury with six women and one man. If—if we were going for a zero verdict, I would have been a little bit concerned because I knew that we had a sympathetic jury.
[33:52] Bill Yeah.
[33:53] Larry But the good news is we didn’t have anyone who I viewed was going to dominate the panel. Instead, I thought that we had a lot of women. The—the gentleman who was on the jury was a young man and there were a lot of—of—of—of women professionals that were significantly older than him. We thought he was not going to be a leader. We were right in that regard and so we had a lot of people who respected each other, and we knew we’re going to have a conversation together and we knew from our work with—with Steve that when that happens we were going to have a good day.
[34:21] Steve Well, let’s back up for one second. Bill, I want to interject. Did—did you notice Larry said one thing about who—how old was the—the—the—the male that was on there?
[34:28] Larry Yeah. Early—early early 20s.
[34:29] Steve And the verdict came back at what?
[34:31] Larry 1 million.
[34:32] Steve 1 million. Yeah. Oh, I thought all these young jurors were the ones that were to blame for these runaway juries. No.
[34:37] Larry Well, uh yeah, I—I—I disagree with you. They aren’t. Um it’s not them. There may be some out there, but you know, I—you know, based on—on my reading from—from you all and others, uh race, age—throw it out the window. That’s not—that’s not what’s driving these verdicts. We have the information from our work on this case and others that we’ve done with—with you guys to support it. Um, and—and we know what drives these numbers and—and it’s not, you know, I mean, honestly, uh, uh, it’s not when I hear someone refer to—to race or age or political party affiliation, “Oh, that’s a bad juror because they are a Republican or a Democrat or they’re young or they’re old.” Honestly, I know they don’t know what they’re talking about, and I know that they’re not looking at the research because the research is very clear. It’s not that easy and that’s a lazy way out in my opinion.
[35:30] Bill It’s 100% lazy. And so, let’s—So two things I want to talk about here. Imagine picking the jury if you didn’t have the data and the plan, right? Which I think happens in a lot of cases.
[35:43] Larry Yeah.
[35:44] Bill Which—which the—I think the defense attorney then defaults to these demographic stigmas which are not predictive and you end up making um—you end up—I think you end up making um a—a lot of—a lot of mistakes that are completely um preventable and just going on hunches and gut feelings and—and—and stigmas. And uh you very well—you know—can—you may have—you know—picked a very different jury. Uh but I think—can you just descri—again, I’m trying to harp on this because I think it’s so important—like your emotional—your emotional status and your confidence level when you have the plan go versus when you don’t.
[36:26] Larry Yeah, absolutely. There’s—there’s—there is—there is no—especially at trial um—there’s no replacement for confidence. And—and confidence comes from—from hard work and from—and from having a client that believes in doing the things you need to do to get the case properly prepared for trial. And so, um my uh blood pressure didn’t rise and—and—and we stood up and we walked out of that courtroom and I told my associate we had a good day. “Now we have to go have another good day on Monday and then we have to have a good day on Tuesday and then we have to have a good day on Wednesday and then hopefully we get a good result. But we’ve put ourselves in a position to get a good result today.” And I said that with 100% confidence walking out of the courtroom and that was because it was information backed. I had the receipts.
[37:10] Bill Yeah. Now speaking of receipts, how did you use the data and the results of your mock jury research to—to plan your opening based on what you had learned in the research? Is—I—I think the opening—I think voir dire and opening are highly connected—but opening is really—that—that’s really where I think—I think that’s just so incredibly important is to have the right story, have the right strategy, and to know how to order your information. How did you develop your opening based on what you saw on the mock jury?
[37:39] Larry So we knew—so—so what we did in our opening, Bill, is—is we focused on the key points that we knew the juries focused on in our mock. So, one advantage we knew we had walking in: we knew the jury was going to like our client. He was a farmer. He was a member of these folks’ community. We—we started to tell the jury some of his story. And then we thought it was really important to leave the jury with some questions that I was going to bring up in closing that—that pointed out the weaknesses in plaintiff’s case and said, “They need to answer this for you during their case. And if they don’t, you know, you need to make sure you listen to the evidence,” but in particular during plaintiff’s case because they get to go first. We—we—we want you to listen to: “Was there a change in symptoms at some point that’s unexplained? And if there is, why haven’t they explained it to you? Because it’s their burden. Is it—do the doctors really disagree or is this being spun in some way? Is this gentleman truly able to work based on doctor restrictions or just a paid litigation consultant’s opinion?” And so, we knew from what our pro-defense jurors—the questions that they focused on in the mock—we knew the trial themes that we were going to weave throughout closing that were going to come in during our crosses and then during our close that we were absolutely going to hammer.
[38:58] Bill And—and I think—and again, I’ve written about this. I’ve spoken about it. This is one of the top reasons there’s nuclear verdicts is when you don’t have this plan and this data, what are you doing? Like what are you really doing? You’re kind of guessing. And I don’t think—I don’t think that’s—I don’t think that’s very—very wise. And so, to go to—to this extent to get the data—you could tell how it drove your decision making, how confident you were—I think is—I think is excellent. Now um—were there any—were there any—because I think every trial has them. Was there any what I would call like “oh” moments in the trial—maybe a witness that you’re like, “Uh oh, what’s going—”
[39:37] Larry Yeah. I think I—I think that um the one—and this really kind of happened in—in—in pre-trial and then it played out at trial—but the judge—the judge ruled that we were not going to get to talk about a prior back surgery that this gentleman had. And so, their story of the case was that he left his career in labor to—to drive a truck because that was his dream. Not true. He—he left his career in labor because he—he had a back surgery when he wrecked a motorcycle and—and drove a truck because that’s what he could do physically at that point. And so that was a little bit of a curveball for us. And so, then as I was preparing to cross-examine the doctors, we had a lengthy—a lengthy uh conversation with the judge on the record uh at the conclusion of day one because he said the lumbar—because—because they—they were saying the lumbar surgery is unrelated. We were not claiming damages to the lumbar spine. And so—and so as I was preparing my crosses and the—the judge said there shall be no mention of lumbar spine in this trial—this is after day one—the medical records became unusable.
[40:38] Bill Yeah.
[40:39] Larry And then—and then we showed up and come to find out plaintiff’s counsel had redacted the medical records in a way that was very very beneficial to them. Not in black but in white to—to—to almost make it seem like the medical records said things that they didn’t. And we had a lot of concern that—that if those got in that—that—that the jury was going to be misled and that we could be in a situation where we were going to be in trouble. And so, you know, on night one when I was putting together my cross and I was looking at these records for these doctors that we were going to depose, I looked at what I prepared pre-trial and I was modifying. I said, “Man, this is—this is going to be um an issue.” And—and—and—and what—and that was definitely the—the “oh” moment. But the—the good news for us is we showed the judge these redacted medical records and—and plaintiffs smartly initially said, “Hey, we’re not going to use them.” And then—and then they um—they attempted to introduce one that had been um redacted and—and at that point based on some other testimony that had taken place, you know, the—the—the judge said, “You know, look, these jurors are going to get to hear that—that this gentleman had prior back pain. They aren’t going to get to hear the word surgery.” Uh, but there was a lot of concern when I was looking at these redacted medical records that—that this story about this guy basically being healthy until our wreck was going to get—get to come in. And if that happened, it—it would have been—it would have been problematic and it wasn’t factual.
[42:16] Bill Yeah. So, talk about the ultimate verdict and talk about uh your feelings about it. Talk about how your client uh felt about it kind of—you know—looking back on all the work you did, the strategy you took.
[42:30] Larry Yeah. So uh—so the—the—the one thing that uh the other one of the reasons why I think the mocks are so important is you test your angle. Uh this was a case with admitted liability and admitted damages. We had a retained orthopedic expert that said that uh the conservative care this gentleman received after the accident was appropriate. The time he took off of work uh was appropriate. He had gotten some injections during that time. And so, um there was about $120,000 worth of meds that—that we were on board for. And and then there was about six months of wages. And you know, there’s some temptation when you’ve already offered $2 million to offer, you know, you know, to anchor at 500 or 800 because you’re like, “Oh, the jury may like that more.” And that would still be a really good result from us because ultimately at trial our goal was to keep it below three. You know that anything below three was—was going to be a win for us. And so, there was—there was some temptation even during trial to say, “Well, maybe we should raise our anchor point.” But at—at the mock we had anchored at around $377,000. Um that was supported and—and what I ultimately learned at the mock was try the case as it should be tried and anchor as your case warrants based on the case you’re trying. Don’t—don’t second guess yourself and give an anchor that’s not consistent with the case that you’ve tried because then you’ve lost credibility. And so—and so while there was some hesitation during the trial to say, “Oh, you know, maybe—maybe we should uh bump up our anchor point a little bit and—and seem more reasonable during closing—” we allowed uh our uh research to—to play its role. We anchored exactly where—where we wanted to. Plaintiff asked for $9.8 million uh uh during—we anchored at 377. Uh during deliberations uh there—there was some discussion of a high-low. Uh our high would have been the policy limit—that was immediately rejected. And so, we were—we were getting um the jury verdict when the uh verdict came back at a million dollars, you know. Um—uh I’ll be honest, I—I love what I do and I love representing the—the men and women who drive trucks. And—and the relief on my client’s face uh when they heard that verdict—he was sitting there with his wife. He’s a gentleman in his 70s. Um, and uh, those—those post-verdict hugs. Um, that’s what it’s about. That—that’s what, you know, I—I get to meet people at some of their lowest points in their life. I know plaintiffs do, too. Uh, and they have a lot of passion for what they do, and they should. So, do I. And I’m unapologetic about it. And, and so, uh, it’s my honor to represent folks like—like the gentleman I represented. And, you know, he’s a tough guy. I’m a tough guy, but—but those hugs uh—two tough guys hugging, there’s nothing better.
[45:24] Bill That’s—that—that’s fantastic. And I don’t think—and I—I hear the plaintiff attorneys saying things like that pretty much constantly. I’m not sure I’ve ever heard a defense attorney describe it the way you just did, and I think that’s—I think that’s terrific.
[45:37] Larry Um well, you know, Bill, I—I posted on LinkedIn about this. I mean, you know, I think—I think that—that—that trucking defense attorneys sometimes we almost think—because people have a negative perception of our clients—that—that we need to be kind of not scared, but—but we aren’t—we aren’t in love with our clients like plaintiffs are in love with their clients. You know, I had two really successful trials last month and—and in both um—I—I embraced the trucking industry full throttle and I talked about how much I respected my clients, the—the role that my clients play in our daily life. And I’ll tell you, it’s resonating and it works and—and we shouldn’t be afraid. Uh being afraid is what gets you bad results. If you listen to plaintiffs’ podcast, they’ll tell you you can basically never ask for enough money um if you have passion behind your case. And—and you know, the same thing applies on the defense side. And I’ll say our—our folks have a compelling story to tell and I’m here to tell it. And—and I think there’s other folks uh around the country that are too. And I think my lesson learned is: be my authentic self, show the gratitude and love that I genuinely have for the trucking industry. And it works.
[46:41] Steve Well, it gives you credibility, right? You—you come across this like it’s—you’re passionate, you’re credible, authentic versus looking like you’re putting on a show in order to try to get your def—your client off the hook, right? You’re actually invested in it in—in much the same way like the plaintiff side is, right?
[46:57] Larry Exactly.
[46:58] Bill All right, this has been a tremendous episode. Uh final question, then we’re going to wrap this up. Um—describe how the mock jury research is a really effective tool to help develop uh younger attorneys, associates, things like that.
[47:14] Larry Yeah, absolutely. And—and—and so in addition to getting the—the research about a particular case, uh mock juries are—are how I evaluate lawyers that are ready for trial because I know in this case, uh my associate who’s—who’s one of my all-star associates—I’m blessed to work with people that are smarter than me—uh I got to see him on his feet in front of 23 people. So, I had full and complete confidence in him when he was standing in front of seven people that he was going to be just fine. And so in a day and age where it’s hard to get trials uh for—for young associates to get their feet wetted and for even partners to try—it’s hard to find cases to try—a—a mock jury with live jurors in a conference room is—is as close as you’re going to get and—and—and provides assurance and—and allows people to get their sea legs for—for when they’re standing up at trial. If you can do it in front of 23 people uh with cameras on you, you can sure as heck do it uh in front of seven. And—and it’s a tool that—that—that I just um absolutely love. My clients know that if the case is going to get tried and there’s—and there’s any type of significant exposure, uh, I’m—I’m looking to do it because it’s so invaluable as a teaching tool, as a learning tool for developing associates and for understanding your case and—and walking into courtroom with that—with the confidence that you know exactly—you have a plan and you’re going to go in there and execute it. And in my view, the whichever side has that clear plan and the plan for execution is generally the side that’s going to come out on the better end of it.
[48:47] Bill Completely agree. Steve, any final comments? This is—what—what a great story.
[48:53] Steve Yeah. No, it was—it was—it was fun and I’m—I was—I was happy that it turned out the way it did because like I said, I got to know his—his clients too through that. So, you know, obviously, Bill, you and I get invested in these cases, too, right? We don’t just come in and do what we got to do and then get out. We actually have as much, you know, have a lot of—a lot of interest in how it happened. So, that was one of the good things when I got to see the picture that Larry posted with his clients on—on LinkedIn and how happy they were. That was—that was a—a good moment.
[49:21] Bill It’s great to see. I don’t think we see um—I don’t think we see um enough of that. Uh Larry, I’ve got one more question because I lied. I—I always have one more question. I think this is more for—so bigger issue. I mean, you know, I’ve—you and I—we have cross paths for years, particularly at a lot of conferences. Um, what do you think the defense bar can be doing—specifically in transportation litigation? Um, what do you think the defense bar can do—can do better?
[49:49] Larry I think—I think we need to be more aggressive. We need to take a page out of the plaintiff’s playbook. Um—a—in—at my—in my office every week I sit and meet with the associates in my—and—and we look at each case, and we decide what needs to take place over the course of that week. And my associates know that on every case they’re going to get asked from me, “How are we going to throw a punch in this case?” Because right, everyone has a plan until they get punched in the face. Even if you’ve admitted—exactly—even if you’ve admitted liability, how are we going to throw a punch on damages? Which is what we did in this case. And—and—and when you—when you think about a case like that and you’re taking the fight to the other side, you get the upper hand. And what I say is: punch and get them off balance and then don’t stop punching until it’s over. And—and what we found—and I’ll—I’ll leave out names—a lot of—of—of large national lawyer firms and even local large plaintiffs’ firms are overworked, understaffed. And so that aggressiveness pays off in resolving cases for lower than they would be otherwise. And—and—and like we saw in this trial, um we were prepared. We were ready to go and—and we were unapologetic about what we were doing. I think so many times as defense attorneys because someone’s hurt on the other side, we have those human emotions of sympathy, which of course you feel bad for someone that’s hurt, but—but—but when I walk into the courtroom, I have an edge. And that edge is that I represent my clients and I’m proud to be there on—on their behalf. And I think defense lawyers sometimes shy away from that. And what I would say as a defense bar, what we need to do is: stand up a little taller, stick our chest out a little bit further, and be ready to take the fight to the other side because—because nine times out of 10, we have a compelling as hell story to tell. And if you go into the courtroom and you tell it unapologetically, I think you’re going to win more times than you’re going to lose.
[51:29] Bill Outstanding. Well, Steve, Larry, thank you so much for this. I—this episode’s been one of our best by—by far. We got to have Larry on more often than every—yeah. Yeah. Not every 200 episodes, Larry. Um, but I think it’d be a good job, maybe have him back on and maybe do a little bit of a panel with a couple of other attorneys. I think that’d be interesting. Uh, compare some ideas. To our audience, thank you so much uh for participating. Please go whether it’s Spotify, Apple, uh, YouTube, leave a review. We’d love your review. Um, and, um, again, this is great. Thank you so much, guys. Uh, so Litigation Psychology Podcast brought to you by Courtroom Sciences. We will see you next time.
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