For lawyer, sitting on jury a learning experience

 Christopher J. Petrini, The Daily Record Newswire

I recently was selected to serve on a jury. The case involved a motor vehicle accident in which liability was stipulated and the only question at trial was whether the plaintiff’s back injury was proximately caused by the accident or whether it was due to a pre-existing condition.

After a full day of testimony and argument, the jury reached a unanimous decision finding that the accident did not cause the back injury.

Since my usual role in the court is across the rail, making arguments to the judge and jury, my experience on the other side as a juror, and fact finder, provided a valuable learning experience and reminder of what is and is not effective.

My lessons learned, in no particular order, include the following:

• Live beats tape. Live testimony almost always beats written documentation, and live testimony generally beats videotaped testimony, assuming equal witness credibility.

The defendant’s expert testified live that the accident didn’t cause or exacerbate the plaintiff’s pre-existing scoliotic arthritis, as it was diagnosed in 2006 (three years before the accident), and subsequently required a full hip replacement.

The plaintiff’s expert opined in videotaped testimony that the plaintiff’s pre-existing condition was exacerbated by the 2009 accident, but the defendant’s expert was able to drive home the defense point that the plaintiff expert’s analysis was based solely on the plaintiff’s subjective complaints rather than on objective test results or other measurable indicators.

If you want the jury to consider a fact or an issue in your favor, be sure to bring the fact out in live testimony.

• Don’t expect jurors to do your work. If there is an issue or fact that you would like the jury to consider, highlight it in direct examination or through cross-examination, and during your opening or closing.

The jury should not be asked to read hundreds of pages of medical records, as requested by plaintiff’s counsel during her closing argument. In my case, the jury did not even consult the exhibits during deliberations. Based on my past experience litigating cases, that is not atypical.

• Show your strong suit. Prove (rather than stipulate) your strongest facts. If liability is your strong suit, consider not stipulating to liability even if opposing counsel offers to stipulate.

Stipulating to your strong facts may have the unintended consequence of diminishing the strongest part of your case (in the case I heard, the liability of the defendant) and devoting exclusive attention to the weakest part of your case (in my case, whether the accident caused physical injury).

• Witness demeanor matters.

Encourage your witnesses to answer in a measured and non-confrontational fashion on cross-examination. That especially applies to paid experts.

Expert witnesses need to avoid looking petulant on cross-examination, as occurred in my case. That does not mean that your experts need to concede disputed points or retract or qualify their opinions. They should hold to their opinions as much as justifiable, but in as pleasant and likeable manner as possible.

Your demeanor matters as well. Do not argue with opposing counsel, witnesses or the judge in the presence of a jury. Jurors do not like a lack of civility, and if the jurors dislike you, it can spill over and adversely affect your client.

• Practice your poker face. If a bombshell is dropped during trial that harms your client’s position, keep a good poker face. Do not show displeasure, angst or surprise. Jurors may not fully appreciate the significance of the disclosure or the adverse turn of events.

Try to avoid giving jurors a playbook — through your demeanor — in understanding the true significance of an unfortunate development.

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Christopher J. Petrini is founding principal of Petrini & Associates.

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