be permitted in the jury room so they should write down the numbers if they believe them to be important. Early in my trial career, I did an elaborate dam- age calculation on a large, white paper mounted on an easel during my closing argument. The jurors all believed that the numbers would be delivered to them as part of the evidence in the case, and were frustrated when they did not get them. Fortunately for me, one of the jurors remembered the numbers fairly well. But, make sure the jurors know that they have to write down numbers to take back with them.
24. Don’t play into juror stereotypes about plaintiffs. In my jury research, I received similar feedback from mock jurors in my initial attitudinal ques- tionnaire for virtually every case. Most jurors either say they believe or strongly believe that plaintiffs exaggerate their harm to get enhanced damages. Na-
tionally recognized jury expert, Carolyn Koch, of Fairfax-based Jury Solutions, acknowledges that this bias can perme- ate the legal system: “When the media focuses on lawsuits, they often describe the outrageously high verdicts because those are the ones that seem to have the most media-driven entertainment value. Often those verdicts are used by jurors to describe why they believe that most plaintiffs exaggerate their harm. But jurors are also willing to make distinc- tions for good damage cases.” Because of that preconceived judgment, it is im- portant that your damage calculations be conservative, and that your client not overreach where damages are concerned. “Plaintiff ’s attorneys need to have a constant reality check to make sure that what they consider reasonable damages would be damages considered reason- able by lay people,” adds Koch. If you are asking for car repairs, let your client explain that she sought three estimates
and this was the lowest one. If there are alternative choices for damages of any type, consider choosing either the aver- age value or the most conservative value, letting the jurors know this. If an ele- ment of damages by comparison is too small to pursue, let the jury know you are not pursing it by inquiring of your client about it and throwing it away in front of the jury. The potential upside in the juror’s estimation of your client’s credibility is significant.
25. Do conduct jury focus research where possible. There is utility in con- ducting jury focus research to determine how jurors view your damages and what information jurors find the most per- suasive or the least persuasive. You can use a consultant to do this research with you or learn how to do it yourself. If you devote the necessary time to it, you will reap the rewards in your verdicts. Time and time again in my practice, I
Spring 2008
Trial Reporter
15
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