\u201cTell me what would make you a good juror. Tell me what would make you a not so good juror. Take a couple of minutes to tell me about the important things in your life: what the ‘core’ of you is.\u201d<\/p><\/blockquote>\n
Questions like that turned the voir dire into a \u201ctown hall\u201d meeting style with substantial interchange and establishment of rapport with the jurors. In addition, the defense team had the advantage of internet research on the jury panel that uncovered information not volunteered by panel members. The result was a jury well suited to listen to a liability defense and one likely to not be unduly swayed by sympathy.<\/p>\n
The third mistake came on cross-examination. Working from the premise that the good liability and damages would carry the day, plaintiff\u2019s counsel\u2019s goal was to get to closing as fast as possible, even if it meant shallow cross-examinations and examinations not on substance but ancillary topics such as the fees of the experts. We know from the post-verdict juror interviews that jurors were very turned off by this approach. They voiced that it did not help them do their job, and they expected good, thorough substantive cross-examinations. They also drew the conclusion that the lack of cross was an indirect admission of the validity of the defense witnesses.<\/p>\n
The fourth mistake was a principally verbal only presentation style, whereas the defense was a combination of high quality slides and multimedia along with verbal presentations in all segments of the trial. Jurors complained post-verdict that plaintiff\u2019s counsel\u2019s slides where hardly readable and that all he did with them was to read what was on the slide.<\/p>\n
The fifth mistake was the damages \u201cnumber\u201d given to the jury in closing argument. It was big: $22 million, but that was only part of the mistake. The more important mistake is it was given without a rationale. Jury research tells us that the most important thing about the giving of numbers by both the plaintiff and defense in closing arguments is the rationale as to the actual number. Whether the number is big or small, what jurors look for is the basis for the number–what logic is there to the number.<\/p>\n
The sixth mistake was\u00a0a failure\u00a0to solve an essential dilemma in the plaintiff’s case: the plaintiff looked well. Counsel for plaintiffs always face the decision of how much the plaintiff should be in the courtroom. If they don\u2019t \u201clook\u201d injured it can be harmful to the claims of damages. If the plaintiff is in a wheelchair, the fear is that\u00a0over the course of a couple of weeks of trial the jury will get \u201cused\u201d to seeing the plaintiff that way, and the \u201cshock value\u201d of the disability will be lost. At the same time, the jury has to see that the parties to the lawsuit are committed to the claims, and their presence or absence affects the jury\u2019s deliberations. The presence of a plaintiff in court makes it more difficult for jurors to \u201clook them in the eye\u201d and then find against them.<\/p>\n
In this case plaintiff\u2019s counsel kept the plaintiff out of the courtroom for all except her testimony. She wasn\u2019t there for voir dire, openings, closings or any other part of the evidence. A photo of her wasn\u2019t even used by counsel in opening or closing. The first time the jury saw a photo of her was in the defense opening when before and after photos were displayed to make the point of a good recovery. While it needs to be recognized that the decision of how much exposure a plaintiff in a catastrophic injury case should have in trial is a difficult judgment call, one of the lessons of this case is that more exposure is needed than just for the plaintiff’s direct and cross-examination.<\/p>\n
The last mistake? Chalk on the shoes. Plaintiff\u2019s counsel went onto and over the line so many times during the trial that he incurred a number of dressing downs in chambers by the judge. His reaction on each occasion was close to this: \u201cJudge, the chalk on my shoes must have kicked it on them by Mr. Gass.\u201d That doesn\u2019t play well with an experienced trial judge.<\/p>\n
![\"Ric](\"http:\/\/law.marquette.edu\/facultyblog\/wp-content\/uploads\/2014\/05\/Ric-Gass-e1399498137409.jpg\")
<\/a>J. Ric Gass is a member in the firm Gass Weber Mullins LLC, in Milwaukee.\u00a0 Ric is a Fellow of the American College of Trial Lawyers, Litigation Counsel of America and the International Society of Barristers, and a Diplomat in the American Board of Trial Advocates. He is a Past President of the Federation of Defense & Corporate Counsel, Lawyers For Civil Justice and Litigation Counsel of America. \u00a0Ric has tried over 300 cases to verdict and represents both defendants and plaintiffs. Ric\u2019s verdict representing a public corporation and a private manufacturing client of $104.5 million is the largest verdict in the State of Wisconsin. <\/em>This article was previously published\u00a0in Litigation Counsel of America, 3 Litigation Commentary & Rev. 30.<\/p>\n","protected":false},"excerpt":{"rendered":"