Last week I had the opportunity to conduct a mock trial in a traumatic brain injury (TBI) case. It was a productive session that gave the plaintiff’s lawyer insight into the course corrections he’ll need to make to win. He was pleasantly surprised to see multiple jurors awarding a seven-figure verdict. But there was one juror who wasn’t having any of it. He was unwilling to award anything beyond a nominal sum for past medical expenses and nothing for the future. No non-economic damages. The truth is this juror was my client’s best friend that day.
In virtually every real trial you’ll be faced with potential jurors having the capacity to torpedo your case. You need to embrace them. Figure out what they believe and how they think. Is the issue a negative attitude about the proof in your case? Is it a general bias against lawsuits? Is the attitude reflective of a particular type of case e.g., rejection of “me too” evidence in an employment case?
You need to envision your worst potential juror. You have two tasks to accomplish with him or her in mind. First, if you have the benefit of sufficient voir dire, you need to formulate questions that will enable you to strike for cause. Unfortunately, there are plenty of situations where you’re not going to have that opportunity. Voir dire in most federal courts as well as many state courts is limited. Therefore, you need to figure out how to live with the ”worst juror” on your panel.
Take the time to sufficiently debrief your “worst juror” at the end of your focus group or mock trial. Find out if there was evidence or arguments that could have changed his or her mind. In the TBI case we showed the panel some photographs that weren’t shown before they rendered a verdict. Our “worst juror” was moved enough by these photographs to at least think harder about the plaintiff’s case.
Approach focus group and mock trials as a laboratory where you can discover the things that could go wrong. Use that opportunity to get a clearer picture of the jurors who could make things go south. Find a way to strike them and, failing that, find a way to turn their attitudes around by asking them how in debriefing.
