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‘Getting it’, powerful bias & a terrific closing theme

Wednesday, June 9, 2010
posted by Douglas Keene

We’ve spent the past month buried in pre-trial research. Traveling to very rural venues and then some of the nation’s better cities. And, of course, pounding the keyboard churning out reports. Here are some lessons learned:

Education level is often not predictive of one’s capacity to grasp the case.

We were reminded of this as we listened to a mock juror with a few community college classes say “Dude. Like the judge said ‘Hey man—you better do what I say’ and the defendant says ‘No way, dude’ and then this other company comes in and rescues them from themselves’. And the judge is like….’Cool’.”

And the other mock jurors nodded as though they finally understood what the attorneys had been trying to communicate to them for two days. We didn’t really need to run the statistics to see (although we did) that education was not correlated with verdict in a complex and confusing contract dispute.

Bias doesn’t hide in rural locales.

We might have expected this more in the rural locales we were visiting. But instead we sat in an up-scale neighborhood and listened to middle-class people telling us that our affluent Mexican plaintiffs should return to Mexico ‘where they belong’ and that if the parents had been less emotional maybe the physicians would have taken more time with them. We don’t get many medical malpractice cases these days and it’s disheartening to see them unheard because of pre-existing and non-salient biases.

“What has become of our country?”

We listened to a lot of litigators in the past month. And one of the closing statement themes that really resonated with jurors was this one. Like all great themes, it was a simple affirmation of the beliefs and concerns that the jurors already held.  It spoke to their priorities, and said “I am one of you.”  A master story-teller spoke about businesses failing, good men and women losing their jobs and contracts not being taken seriously. And he observed to them “A promise is a promise, and they didn’t keep theirs. Out of a lust for more than their share they destroyed a company, livelihoods were lost, and a community was devastated.  What has become of our country?”

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