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Feb. 23, 2014

All plaintiffs’ cases boil down to convincing the jury that something happened that shouldn’t have. Without the proper focus, a jury will look at an injured plaintiff or widow and potentially feel sorry for them but not be motivated to action. Several reasons exist for this motivation for action, from the jury’s need to enforce safety to an individual juror’s empathy and need to correct a wrong. At the center of every well-tried case there lies an injustice that cries out to be undone. So why don’t we simply ask the jury for justice? The answer is because people do not know how to define justice. It is too vague a concept to rally a jury to action. As law professor Edmund Nathaniel Cahn observes in his book, The Sense of Injustice, invoking justice simply evokes contemplation, and “contemplation bakes no loaves.”

However, just as justice is an esoteric notion, injustice is real. Every person has suffered unfairness. Most people agree on what constitutes “wrong” or “unfair”, even though the way they express this knowledge may vary. The task for the trial lawyer becomes focusing the jury from the opening statement through the closing argument on the injustice and how it needs to be fixed. By focusing on the injustice, I do not mean focusing on its victim. There has been a great deal written in the trial cannon about getting the jury to see the case from your client’s perspective, as if simply having them view the facts from our client’s shoes will motivate them to give us a verdict. Many feel that simply putting the jury into our client’s suffering will carry they day. However, as discussed more below, various psychological factors will prevent a jury from engaging in the empathy necessary to allow significant damages until they are convinced on liability. While there is a time and place in our opening statement and trial presentation to have the jury understand the depth of our client’s injury, the beginning of the opening statement should focus on the defendant’s wrongdoing.

“Of all sad words of tongue or pen, the saddest are these, 'It might have been.”-John Greenleaf Whittier

If you do not believe me about the power of focusing on the defendant’s conduct as opposed to the story of the client’s suffering, go through a little exercise with me. I will tell them same story from two different viewpoints, and you decide which of the two is better from the plaintiff’s perspective:Joe Smith is an accountant. On Friday January 24, he took his usual drive to work. About 2:30 in the afternoon, his sick wife called him from home and asked him to go by the doctor’s office to pick up her prescription. The doctor’s office closed at 3:30 that day, so he had to cut across town to pick up the script and drop it at the pharmacy. By the time he got out of the pharmacy, it was rush hour. He decided to take the scenic route home to save some time. As he drove the scenic route, a drunk driver blew through a stop sign and killed him.

Ask yourself the question “If only?” What responses do you have? If only his wife had not fallen ill. If only the doctor’s office had not closed early. If only he had not taken the scenic route. All of these questions elicit a “shit happens” response, and we cannot expect a jury to be motivated to undo an injustice when “shit happens.”

Now consider the same story from a different perspective:

Scott Jones is a financial advisor. On Friday January 24 he left the nineteenth hole of the local golf course after finishing a round of golf and three rounds of drinks. He stopped by a local bar to catch the basketball scores. It was happy hour, so he downed two for one shots of Fireball whiskey. The bartender offered him a cab, but he refused because he wanted to beat rush hour. Behind the wheel, he shot a text message to his angry wife, missing a stop sign at high speed. His sports car collided with another car, killing Joe Smith, who happened to be bringing medicine home to his sick wife.

Clearly the second version takes the focus where we need it and makes the injustice of what happened to Joe Smith glaring. Because we are focusing on Joe Smith in the first version of the story, we automatically find some type of fault with his behavior or focus on the unfortunate fate that can befall an accident victim. Of course the drunk driver will eventually elicit some anger, but the jury has already begun to use protective techniques such as “defensive attribution” in order to assign blame to the victim. Because many of us have been in Joe Smith’s situation as far as having to run errands and deal with office closings and traffic, when we hear of a drunk driver striking him we chalk it up to fate or some other anomaly in the situation. This protects us on a psychological level because we believe that our situation is different. However, when we focus on the wrongdoer violating safety rules and acting reckless, we no longer blame the victim or the circumstance. We simply see the glaring injustice of a drunk driver killing somebody. So in cases where liability is challenged, we must focus on the defendant and the wrongs he has committed. Damages will flow from this, but the hook must first be set with liability. Because as Phoenix trial attorney David Wenner points out, “all damages are essentially punitive.”