Trial Magazine

It’s no secret that most trial lawyers often assume that conservative jurors will be detrimental to a plaintiff’s case. Stereotypes about conservative jurors have become part of the conventional wisdom of trying a case. But, as with much conventional wisdom we encounter, it is incorrect, and perpetuating these stereotypes will only hinder trial lawyers who are seeking justice for their clients. Summarily dismissing conservatives as unsuitable to serve as jurors is a mistake. Groups of people are rarely monolithic, and conservative jurors can be a trial lawyer’s best weapon in holding wrongdoers accountable.

Build on Beliefs and Reinforce Values

To enlist conservative jurors’ support in aid of the plaintiff’s case, build on their beliefs and reinforce their values. Tailor your evidence and arguments to reflect those beliefs and values.

Beliefs and values are closely related, but they are not the same thing. Belief involves affirming a proposition within one’s mind.¹ Values involve more—they are commitments of the heart that someone will not surrender without a fight.² A person may “believe” in the American way of life, but when they are willing to fight and die for their country, they are said to have patriotic “values.”

Seven Core Conservative Values

Based on my experience trying cases for almost 50 years, most conservatives share at least seven core conservative values. These values and some corollaries that follow can be helpful in your case.

1. Accountability is key to promoting responsible behavior.
Corollary: If wrongdoers are not held accountable for the consequences of their actions, they will continue to act irresponsibly.

2. Society has a right to set reasonable standards of behavior for people.
Corollary: People who violate those standards should suffer the consequences.

3. People should pay what they owe.
Corollary: People should be paid what they are owed.

4. There is no place for a privileged class in America.
Corollary: In America, everyone is equal under the law.

5. Human life is precious, so all human beings should be treated with dignity.
Corollary: Human life and human dignity should be respected and protected under the law.

6. Money is a motivator. Incentives affect behavior.
Corollary: If you subsidize something, you get more of it, and if you penalize something, you get less of it.

7. “The government closest to the people serves the people best.”³
Corollary: Juries are the essence of local government.

If you want to connect with conservative jurors, develop themes that embody their values. Then, sound these themes early and often, from jury selection through closing argument.

Themes That Connect With Conservative Values

Here are some themes that connect with the conservative values identified above, as well as examples of how to incorporate them into your case.

Accountability and responsibility go hand in hand. Conservatives strongly believe that wrongdoers should be held accountable for their conduct. This belief is a central part of their core values. To draw out the theme that defendants should be accountable for their wrongdoing, start with these questions in voir dire:

• What does accountability mean to you? (After sparking discussion, suggest the answer: Can we all agree that it means to be answerable for your conduct? Is that a good thing?)
• Does everyone agree that wrongdoers should be held accountable for their conduct?
• What happens when wrongdoers are not held to account for their wrongdoing? (Inevitably, jurors will respond that wrongdoers are likely to repeat the wrongdoing.)
• Do you teach your children that they are going to be held accountable for their actions? Why? Were you taught that?

Hammer this theme home in opening statement, direct and cross-examination, and closing argument. In doing so, you will show jurors how a verdict for the plaintiff will affirm their values.

For example, during the cross of a director of nursing at a nursing home, you might ask:

• Are you held accountable by your employer for how you perform your duties?
• Do you get annual job performance evaluations? Why?
• Do you hold your staff accountable for the way they care for the residents in your nursing home?
• Give us some examples of how you do that, such as write-ups, suspension, or termination.

And in closing argument, you could say: “It’s time for this nursing home to account for the way it neglected and abused Mr. Jones. If you don’t hold them accountable for the way they treated Mr. Jones, they will continue to neglect the frail, vulnerable people who have been entrusted to their care.”

And remember, many conservatives strenuously reject what they view as the “therapeutic model of behavior modification”—that bad behaviors should be “treated” not “punished.” They are just fine with punishing bad behavior. This willingness to punish wrongdoers can be especially helpful when asking for punitive damages.

We’re all in this together. There’s just no room for a privileged class in America. Show jurors that you are asking no more from them by asking them to hold a wrongdoer accountable than is expected of them in their daily lives. Conservatives often object to the double standard of justice that they see all around them, to political and financial elites evading wrongdoing. Many of them believe that the federal government is more concerned about taking care of folks on Wall Street than folks on Main Street, and they are mad as hell about it.

Here’s how you can introduce this theme in jury selection:

• Are each of you held accountable for the way that you perform your job?
• Do you think it’s appropriate that people are held accountable for the quality of their work? Why?
• Let me give you an example: A truck driver on the highway tailgates a motorist, causing a crash. Do you think the trucker should be held accountable for his conduct?
• Here’s another example: A lawyer fails to file suit in a timely fashion, resulting in a client’s meritorious case being dismissed because the late filing violated the statute of limitations. Should the lawyer get off the hook because she is a “professional”?
• Now let’s talk about health care providers: Do you think that doctors (or nurses or hospitals) should be members of a privileged class that is not accountable for the way they perform their jobs?⁴

Note the progression here: Trucker, lawyer, doctor. After affirming that the first two wrongdoers should be held accountable, prospective jurors almost always conclude that wrongdoers who are health care providers should not be let off the hook either. They reject the position that health care providers should be members of a privileged class immune from accountability.

The next question shows why:

• What do you think would happen to the quality of medical care in this community if providers were not held accountable for the way they perform their duties?

Invariably, jurors conclude that the quality of health care will decline if providers aren’t held accountable for their work. Drive the point home in closing argument that health care providers (or any other class of defendants) are just like the rest of us. They are not kings who can do no wrong. They should be held accountable for their actions—just like everyone else.

This lawsuit is about compensation that is just and fair. The goal is to convince the jurors that they are embarking on a process that will hold wrongdoers accountable. And the way they do so is by requiring that the wrongdoer compensate the injured person for the full measure of his or her damages. In voir dire, ask jurors:

• Do you understand that this case is about compensating an innocent party for the harms they have suffered at the hands of a wrongdoer?
• Do you understand the difference between “compensation,” when a party is paid what they are owed, and “winning the lottery,” when someone is paid simply because they got lucky?

People should pay what they owe. Conversely, people should be paid what they are owed. Help jurors understand that it would be unjust for the wrongdoer to gain a windfall at the victim’s expense. Ask these questions in jury selection:

• Do any of you have any difficulty with the proposition that someone who is negligent should be accountable for compensating the person they injured for the loss or damage that person suffered?
• If they aren’t required to account for their wrongful conduct, isn’t the wrongdoer getting a windfall, while the innocent victim is forced to bear the loss unjustly? Do you think that’s right?
• Do you think it’s OK for someone to welch on a debt?

These same points should be repeated in closing argument by affirmatively stating the answers to these questions to the jury. Going back to the nursing home example, you could say in closing: “If you don’t hold the nursing home accountable for its conduct, it will receive a windfall, and Mr. Jones will bear the loss himself. Surely you agree that’s neither fair nor just.”

Your verdict will protect human dignity and the sanctity of human life. Show the jurors how—through their verdict—they can take a stand to protect human dignity and the sanctity of human life. Here are some examples of how to sound this theme during jury selection:

• What does dignity mean to you?
• Is it something we all have, or is it something reserved for a privileged few?
• Is it important to protect a person’s dignity? Why?
• What happens if we strip a person of his or her dignity?
• Is being able to take care of our most personal needs (dressing, grooming, using the toilet) important to preserving one’s dignity?
• Can one’s appearance affect one’s sense of dignity? (For example, would someone feel unattractive because they have become disfigured?)
• Should people be treated with dignity even at the end of their lives?
• Some people say that because we’re all going to die anyway, it doesn’t matter how we die. Do you agree with that? Tell me more.

Reinforce the theme of protecting human dignity in closing argument, especially in cases involving injury or death of the elderly or children, when economic losses may be limited, and in cases involving severe disfigurement or disability.

The jury system is a fair way of resolving disputes and the essence of local government. Make the jurors understand the importance of their role and feel proud of their service. Doing so can help them overcome their frustration at the inconvenience the trial caused. In jury selection, you can say:

• In this case, Judge Smith is the judge of the law. She decides what the law is and how it applies in this case. But you folks are the judges of the facts. The parties are in dispute about what the facts are. You folks will decide what the facts are and how they apply in this case. That’s a weighty responsibility. Do you feel that you are up to carrying out that role?

In closing argument, again stress the importance of the jurors’ role as fact-finders. They may not be wearing black robes, but their role is just as important as the judge’s. They should be proud of their service. The impact of their decision will reverberate throughout the community. People will sit up and take notice of what the jury did and take it into account when deciding how to behave in the future.

The values that drive conservatives are entirely consistent with the policies served by civil justice. The key is to connect with those values by advancing themes that resonate and show how the jurors’ verdict serves the ends of justice.

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Ken Connor practices law in Aiken, S.C., and can be reached at ken@theconnorfirm.com.

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Notes

1. See, e.g., Eric Schwitzgebel, Belief, The Stanford Encyclopedia of Philosophy, Fall 2019, https://plato.stanford.edu/archives/sum2015/entries/belief.
2. See, e.g., Lilach Sagiv et al., Personal Values in Human Life, 1 Nature Human Behav. 630–39 (2017).
3. Attributed to Thomas Jefferson. See Mark Franke, Idea of Killing Off Township Government Rooted in Efficiency Instead of Service, The Republic, Feb. 3, 2018, https://tinyurl.com/y5nu7lsu.
4. This approach does not change in response to the COVID-19 pandemic because it is still about how health care providers perform their job duties.