A Guide to Openings and Summations: Part Two

Part2

Two of the most influential experts on trial advocacy in the last five years have been attorney, Rick Friedman, and jury consultant, David Ball. Together, they offer trial attorneys, and particularly plaintiff’s trial attorneys, a compelling template for the presentation of the case.

A. Rules of the Road

Rick Friedman, author of Rules of the Road, set out to answer the question why it was that he sometimes lost cases which seemed strong on both the facts and the law. The short answer was that the jury was confused about the standard of care set out by the experts and in the jury charges. When confused, he concluded, jurors created their own, layman’s standard of care which is often more lax than the legal standard. For example, jurors may conclude the defendant was not responsible because “he did his best” or “did not intend for an accident to happen.” He suggests that complexity and ambiguity regarding the rules or standards of care serve the defendant and harm the plaintiff.

The antidote, Friedman says, is to create “Rules of the Road” and make those rules, and their violation, the centerpiece of your case. The basic rules for a safe surgery, for a safe product design or for proper elevator maintenance can be made as straightforward and easy to understand as the rules of the road we all know when driving a car. If the rules are formulated correctly by the plaintiff’s attorney, and every witness agrees to the rule, then it is a simple matter for the jury to compare the defendant’s conduct to the rule and see that the rule was violated. In opening, you should lead with the rule.

So, for example, in a high school football head injury case, the plaintiff might open with the following rule, which becomes the theme of the case:

Coaches and athletic trainers must not allow a student to re-enter a game when there are indications that a student has had a concussion.

State the rule in opening and tell the jurors that the witnesses will agree with the rule. During trial on direct and cross, every expert, including defendant’s experts, will concede the rule. After the defendant’s experts have agreed to the rule, as they must, all that remains is to demonstrate to the jury the underlying facts in the case which prove the violation of the rule.

Freidman instructs that there are five basic attributes to an effective Rule of the Road:

  1. The Rule Must Contain A Requirement That The Defendant Do or Not Do Something.

Otherwise stated, the rule must prescribe or proscribe conduct. For example, Jon Pels, a Maryland attorney, was trying a class action case against mobile-home installers based on the fact that many mobile homes were literally falling off of their foundation anchors. Pels developed substantial evidence that the installers were not driving the anchors down to the frost line as Maryland regulations required. Yet, the county inspectors were nonetheless issuing certificates of occupancy for the homes, a fact which defendants were heavily touting. The rule (theme) for his case was:

An installer must follow the building code, regardless of whether the county inspector catches the installer’s violations.

He then successfully made every witness concede the rule and thus defused the defense.

  1. The Rule Must Be Easy To Understand.

For the rule to be effective, it must be concise and avoid legal jargon or excessively technical terminology. For example, in a medical malpractice case where a patient came to the emergency room with chest pain, but was prematurely discharged, the rule might be:

When a patient presents to the emergency room with chest pain, the emergency room physician must take an accurate history, perform a physical examination, check lab work and obtain an EKG.

The medical standard stated in this manner is clear, relatively free of medical jargon and plaintiff will be able to compel even defendant’s expert witness to concede that it is true.

  1. The Rule Must Be Formulated So That The Defense Cannot Credibly Dispute It.

To be useful, a Rule of the Road must have universal acceptance. The Defendant’s witnesses must agree to it, or look foolish contesting it. For example, in a medical malpractice case arising out of a surgery gone awry, an irrefutable rule might be: “A surgeon should not cut any internal structure without making sure what it is.” In a construction accident case where the worker fell on debris in the work space, the rule might be: “A general contractor must remove debris from work passageways to provide workers with a safe place to walk.” In auto case the rule might be: “a driver should never change lanes without turning his head to check his blind spot.” No credible expert or lay witness will dispute these rules.

  1. It Must Be Clear That The Defendant Violated The Rule As Formulated.

It serves little purpose to create a rule which the Defendant can first agree to, and then prove he complied with. The violation of a substantive rule is the reason you brought this case in the first place. Presumably, by the time you have come to trial, you can convincingly demonstrate a breach of the rule. Be careful not to formulate a rule that is too vague. For example, a rule like “a doctor should always be careful” or “a driver should always drive cautiously” is hard to dispute, but both sides can argue they complied with the rule.

  1. The Rule Must Be Significant or Dispositive in the Case.

The rule formulated must, in some respect, be central to the case such that its violation will move the jury to find in the plaintiff’s favor. That is, the rule must be outcome important. Having multiple minor rules violated, none of which go to the core of the claim, will not move the jury to conclude the violation renders the defendant liable to the plaintiff.

Each case is unique and so each case will have its own set of rules, derived from the principals of safe conduct in that area. Here are some examples:

  1. A nursing home should not destroy portions of the resident’s medical record to hide or disguise the nurse’s conduct.
  1. If a company can make its product safer at a modest cost, it should do so.
  1. A landlord must regularly inspect the steps of its building and keep them in good repair for the safety of the tenants.
  1. If a patient refuses a prescribed treatment, the doctor must document the refusal in the patient’s chart.

Special Considerations in Automobile Cases

Using the Rules of the Road in a case actually involving the real Rules of the Road–an automobile accident case–requires special thought. Jurors already understand the Rules of the Road that govern safe driving. In the typical motor vehicle accident case, the jurors simply need to be reminded about the rule they are already familiar with. So, for example, in the opening statement in an auto case, the Plaintiff’s counsel may begin by saying the following:

Ladies and gentleman, this case is about a basic rule of safe driving. The driver of a car must keep enough distance between himself and the car ahead of him, so that if the car ahead stops suddenly, he can still avoid a collision.

See Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability, Rick Fried and Patrick Malone (Trial Guides, LLC 2010).

B.   Appealing to the Juror’s Self-Interest-Understanding the Reptilian Brain

Influential plaintiff’s trial consultant, David Ball, advocates using trial themes which appeal to the self-interest of the jurors. His work builds on the research of famous marketing guru, G. Clotaire Rapaille. Rapaille developed marketing strategies based on a body of scientific research which proved that people are most strongly motivated by instinctual stirrings which emanate from the most primitive part of our brain, a part he calls the “reptilian brain.” This same part of the brain takes over decision-making when danger is perceived or safety is at issue, such as when we experience the “fight or flight” response. Raipaille used his research to great advantage in developing effective consumer advertising campaigns, which connected the product being sold to the consumer’s sense of preserving personal safety and well-being.

By giving the defendant’s violation of safety rules a broader context, a context which implicates community safety, the jurors reptile brain is triggered. The juror voting for the plaintiff is also voting for his or her own safety, or the safety of his or her own family. That is, make your case bigger than just your case. Enlarge the danger to involve the jurors own self-interest.

See Reptile, the 2009 Manual of the Plaintiff’s Revolution, David Ball and Dan Keenan, 2009 (Balloon Press, New York).

Ball applies Rapaille’s concepts to courtroom advocacy. In essence, he suggests structuring the arguments so that the jurors understand that their decision, albeit subtlely, has implications for their own safety or the safety of their loved ones. This triggers the reptilian brain, which always votes for safety and security.

To engage the reptilian brain, answer these two basic questions:

A. How likely was it that the negligence would hurt someone? As Ball writes, “The only difference between freak accident and public menace is frequency. Freak accidents rarely awaken the Reptile because they cannot be prevented. But when something happens often, the Reptile gets concerned.”

B. How much harm could the negligence have caused? Jurors are instructed to assess the danger of an act by how much damage it caused to the plaintiff, and lawyers are trained to do the same thing. Outside of the courtroom, however, people often measure the danger by how much damage could have been caused. (“I could have been killed.”) In opening and summation, invoke the reptile by talking about the maximum harm the act could have caused.

By giving the defendant’s violation of safety rules a broader context, a context which implicates community safety, the jurors reptile brain is triggered. The juror voting for the plaintiff is also voting for his or her own safety, or the safety of his or her own family. That is, make your case bigger than just your case. Enlarge the danger to involve the jurors own self-interest.

See Reptile, the 2009 Manual of the Plaintiff’s Revolution, David Ball and Dan Keenan, 2009 (Balloon Press, New York).

I hope these tips can help you with getting into the minds of your jury. Engaging them on their own level and providing a framework which forces their thinking into your line of logic is imperative.

Click here to read Part 3: Preparation with Bias in Mind, and Structuring the Body of the Opening