Author: sgray

As Judge Learned Hand explained nearly 100 years ago, “Juries are not leaves swayed by every breath.”

Take a second to think about that.

Yes, how you frame a case matters. Yes, the evidence the jury hears and sees matters. And, yes, the specific wording you use matters.

But, to win at trial, you do not have to be as polished as Alan Shore:

To win at trial, you have to be you.

You have to care about your case.

And you have to trust the jury to get it right.

One misstep or wrong word will not lose the trial because:

“Juries are not leaves swayed by every breath.”

Jonathan Haidt, a social psychologist, explains: “The mind is divided, like a rider on an elephant, and the rider’s job is to serve the elephant.”

The rider represents reason, and the elephant represents emotion.

Despite our best efforts in the courtroom, the elephant decides the case:

“Perched atop the Elephant, the Rider holds the reins and seems to be the leader. But the Rider’s control is precarious because the Rider is so small relative to the Elephant. Anytime the six-ton Elephant and the Rider disagree about which direction to go, the Rider is going to lose.”

The rider cannot control the elephant. As such, when it comes to making decisions, we (including judges and jurors) subconsciously make decisions based on emotion and then support those decisions with reason. I have seen this time and again in court.

So what does this mean for the trial attorney? To get results in court, you have to be mindful of the emotions in the case and capitalize on them. And if you don’t believe me, listen to Gerry Spence:

“I have said I have no quarrel with the intellect. These words were born of it. I simply do not wish the head to rule every aspect of the human experience, nor feelings to be reduced to some unsavory attachment to the person, something akin to original sin. Moreover, I am not a fan of flabby sentimentality that by its excessiveness mocks honest feeling. But be assured—despite all their protests to the contrary—the decisions of most power persons are rooted in the very feeling they deny. A simple and universal process is at work. We feel first, then decide accordingly. Our decision may be wrong. It can even be spiteful or evil, and we will announce our decision only after we have smeared it with the stuff of the left lobe—with brain-laden, unemotional, cold, linear reasoning. The feeling came first and it was at the feeling level that the decision was made.”

Before I started plaintiff’s personal injury work, I spent a year at the local prosecution office. It was an awesome job. I loved working to make the community safer and helping victims get justice. (And the people I worked with were great: my colleagues, our staff, the police, the defense bar, and the court). And I thought that leaving prosecution meant leaving public service, but surprisingly I was wrong.

Plaintiff’s personal injury, if done right, accomplishes some of the same goals as prosecution: community safety and justice for victims.

“At the end of the day, this case comes down to one question: is safety important in Richmond?

You represent the City of Richmond. You speak for this community.

If you decide for the corporation, you are saying that safety is not important here. That we should leave these signs [holding yellow caution sign] in Henrico [the neighboring jurisdiction], because we do not need them here in Richmond.

But if safety is important here and if these caution signs exist for a reason, then return a verdict that forces the corporation to take safety seriously.”

Those were my last words to the jury in a personal injury case this year. And, thankfully, the jury returned a verdict that forced the corporation to take safety seriously and compensated my client (i.e. the victim) for what the corporation’s negligence took from his health and quality of life.

After the trial, a juror offered me the following feedback: “I can’t speak for others but I did consider sending a message to the corporation about taking safety seriously when we were going through this process.”

So, yes, if done right, plaintiff’s personal injury accomplishes some of the same goals as prosecution: community safety and justice for victims.