Trial Magazine

As trial lawyers, we know how important it is for jurors to understand the facts of our clients’ cases. But how their personal beliefs align with the facts presented to them is even more critical.¹ For example, if a juror trusts doctors and always follows medical advice, he or she will likely hold it against a plaintiff who delays medical treatment or fails to get recommended treatment. These hidden “land mines” can damage your case.

The ramifications of failing to identify juror bias land mines are immense—from defense verdicts on liability to significantly reduced damages due to the plaintiff’s perceived comparative negligence. And there is no worse feeling than learning too late of a deficiency that could dismantle what would have been a strong case. No matter the circumstances, it is our duty to understand the impact of these potential problems and learn how to avoid them.

Addressing these land mines may appear easy: Vet your client as thoroughly as possible, and confirm that the case has no red flags from the outset. However, the process of doing so is much more nuanced and must be done early—it might save your client’s case.

Identify Blind Spots

In the initial client meeting, set the tone that your purpose is to protect your client. By establishing yourself as a legal protector and confidant, you can ensure the client understands honesty is crucial. So no matter what potentially embarrassing and uncomfortable facts are lurking in their past (from prior criminal convictions to medical history)—and even if they may never come up at trial—your clients must fully inform you. You need to know how to appropriately handle these facts. Otherwise, it’s easy to fall into the trap of complacency.

For jurors, a party’s dishonesty may be the most explosive issue possible. The mere perception of deception is enough to turn what would have been a like-minded juror entirely against your client. Clients often forget their past actions—and they may not understand how or why the defense would use such information against them.

Beyond initial intake, tell your client how insurance companies and their lawyers often hire private investigators to conduct video surveillance to uncover detrimental facts to feed to the jury. By reminding the client of this throughout the case, you will be a guiding force ensuring they are consistently truthful in words and actions.

Create a process that allows you to ask difficult questions early. Here are several types of documents and information you should obtain to learn about your client:

• medical records for the current injury
• all prior medical records
• all prior lawsuits, including workers’ compensation
• divorce filings
• bankruptcy filings
• disability applications
• current and past employment records
• tax records and details regarding income
• a review of all social media channels, including private accounts
• videos or photos related to both the incident and damages
• prescription and nonprescription drugs taken
• family background, including children and marital status
• family photos and videos before and after the incident occurred.

If you find something that concerns you, asking your client about it may be uncomfortable. For example, you may need to ask about

• the impact of any prior injuries and how they differ from your client’s current medical condition
• estrangement of family members in wrongful death cases
• your client’s job history
• how your client is paid, especially if via cash or other unconventional means
• your client’s prior drug (both prescription and illicit) or alcohol challenges
• social media posts about your client’s incident, injuries, background, and activities.

Get Ahead of Damaging Facts

Once you have reviewed these documents and information, acknowledge any facts that appear to hinder your client—first internally, then with your client. You’ll need to be ready if defense counsel raises the issue later. These strategies can help you curb the potential damage to your client’s case.

Learn even more about your client. Conduct extensive interviews, including with the client and his or her family, friends, neighbors, coworkers, and medical providers. Look for inconsistencies in the details of the stories your client told people with varying levels of privacy. You need to discern which conversations can be protected and which will be fair game for defense counsel. Your client should be able to explain why he or she told a friend more information than a family member.

Consider visiting the client’s home. His or her way of life and background can significantly affect how some jurors view the case. Facts such as multiple marriages, children born out of wedlock, and sexual orientation are unfortunate realities of juror bias. Ask yourself whether the client is likable and whether a jury would view him or her as worthy of receiving damages.

Use focus groups. Well before the lawsuit and discovery begin, focus groups can help you gauge the way jurors are likely to view your client. Although you likely won’t know and understand all the facts of your client’s case this early on, focus groups can help you actively look for land mines, which, in turn, will support your discovery plan and your approach to potential problems.

If your client has some “negative” personality traits, make a video of your client and show it to a focus group to get objective opinions. If there is an issue, you will want to adapt your strategy—for example, by using other witnesses to tell more of the story or planning for additional preparation with your client.

Visit the scene. This is especially important in crash cases, because often you can identify when the facts don’t appear to “fit” or don’t seem right to you—lighting and sight lines are two primary examples. And in slip-and-fall cases, knowing the layout of the scene could go a long way in establishing whether a store employee would have seen the defect prior to the occurrence.

Understand and monitor your client’s medical care. Medical experts can help you understand medical records and spot any issues across the span of prior and current treatment. Be aware of any gaps or delays in medical treatment, whether your client was compliant with medical care, and any prior medical conditions. It’s also important to know whether your client is seeking or receiving care from nontraditional or unqualified medical professionals and how it may resonate with jurors. For example, if many people in your community do not believe in holistic medicine, you may have difficulty getting a jury to accept acupuncture as a valid medical expense.

Conduct mock depos. Enlist a colleague to conduct a mock deposition. Let them know about the case’s potential weaknesses. That person can assist you by asking the questions that will need to be addressed throughout the litigation. To anticipate defense counsel questions, consider trying to obtain prior depositions defense counsel has taken in similar cases. You may be surprised when defense counsel asks your well-prepared client a question nearly identical to one that you practiced before the deposition.

Not all of these techniques will be pivotal for your client’s case, but one of them might uncover the land mine that’s lurking undetected. And addressing it may be all it takes to curb the effects of bias.

Ken Levinson is a partner at Levinson & Stefani Injury Lawyers in Chicago and can be reached at ken@levinsonstefani.com. Copyright © 2020 Ken Levinson.

Note

1. For more on juror bias, see Winning Case Preparation: Understanding Jury Bias, which focuses specifically on the Overcoming Juror Bias Model developed by AAJ stalwarts David Bossart, Gregory Cusimano, Edward Lazarus, and David Wenner. (David Bossart et al., Winning Case Preparation: Understanding Jury Bias (AAJ Press/Trial Guides 2018).) Another resource is attorney Mark Mandell’s book Advanced Case Framing, which covers “I Just Can’t Get Over” issues for jurors. (Mark Mandell, Advanced Case Framing (AAJ Press 2019).) For an excerpt of this book, see Mark Mandell, I-Just-Can’t-Get-Over Issues, Trial, Aug. 2019, at 18.