Have you ever heard surrogate jurors discuss your arguments in jury research with full understanding and then discard them as irrelevant to their final decision? Have you ever had an experience of losing a case that seemed logical and strong?
In a middle class, mostly Republican venue, jurors discuss alleged violations of Federal regulations by an owner of a construction project. The allegations are part of the defenseput forward by the construction company
accused of poor workmanship. Initially, all seems well for the construction company, but as the discussion progresses, the jurors are increasingly putting themselves in the shoes of the owner, finding more excuses for why he evaded, ignored and broke government regulations. The end result: regulations are found to be broken, but the violations are deemed irrelevant and the construction company is viewed as responsible for all the alleged defects.
A government agency claims that it has no obligation to follow its contract because it was not the contract it intended to sign. The contract involves insurance coverage for multiple construction projects. The insurance company argues that the contract was negotiated by experienced insurance brokers on both sides and clearly says what it says. The case is in a multicultural Democratic, mixed-income venue. In deliberations, jurors show disdain for the government agency and its wasteful ways – before both deliberating groups find against the insurance company, which they see as being sneaky and exploitive of government inefficiency.
It seemed likely that if the first case were tried in the second venue, and vice versa the result would have been very different. Republican and conservative jurors are more likely to hold their government agencies accountable, sticking them with a bill, if necessary. Democratic jurors are more critical of owners who violate Federal law in order to take advantage of people who work for them. The strategies were good - they just did not match the interests and the mood of the prospective jurors.
Construction cases, even seemingly simple ones are extremely interesting to try and mock try. The issues they raise touch on so many strongly held opinions that jurors inevitably become engaged. Many cases involve most or all of the following: contractual relationships between owners, architects, general contractors, subcontractors and their problems, surety or insurance companies and often public entities and sets of regulations. Everybody knows that jurors' preexisting opinions matter, so in such cases parties must take into account jurors' attitudes toward:
- Local construction companies' quality of work – opinions that are heavily influenced by success or failure of recent public construction projects and any recent stories of problems with residential construction.
- Government regulations – opinions heavily influenced by perceptions of their local effect and predominant political orientation in the venue.
- Local government agencies – opinions about their efficiency, honesty and latest successes and failures.
- Insurance companies – opinions in light of recent local natural disasters and affordability of medical and property insurance.
- Local conditions that are viewed as legitimate causes for delays.
- Specific locations, projects and players and their reputations.
As deliberations in the above-referenced cases demonstrated, these days, real estate is not only local, it often has political undertones. When government agencies and regulations are linked to the issues in the dispute, jurors' political orientation begins to color their view of your case. Jurors try to stay away from political arguments per se, but their conservative or liberal attitudes are clearly identifiable. This by itself may not be news, but these days the attitudes shift and become more polarized quicker than most of us expect. Litigants and attorneys' own perceptions of the political climate and their own political orientations also play a role in their assessment of the strength of their case. Lawyers and businessmen are as human as jurors and as such cannot isolate their personal views without reflection and conscious effort. The main takeaway from these two cases is that we have to work harder than usual to be aware of the effect that the politico-economic crisis is having on us and on the differences between our personal views and those of our likely jurors.
In times of crisis, everything becomes political. While politicians and some members of the general public may indulge in portraying their political opposition as unreasonable and crazed, trial lawyers have the duty to understand and respect their jurors so that they can navigate these rocky waters and focus jurors on the facts of the case and avoid building their case on themes that contradict jurors' "common sense." Offense is the best defense, but if it backfires, it backfires big. In this political climate, one has to be careful with any aggressive business and governmentrelated trial strategies.
The good news is that because construction cases touch on many issues and opinions, trial lawyers have space to be creative and to find juror predispositions that help their case. None of the previously described cases are hopeless. New strategies may not lead to big wins, but at least they would assure that there would be little or no loss. Surrogate jurors taught us that it is not enough to show that the owner of the project violated government regulations. The construction company has to fit this fact into its story of how the owner exercised compete control over the process and made choices for which he now must accept responsibility. The jury research also showed that some construction defects must be accepted as the construction company's own fault, so that jurors don't dismiss its other, more important arguments. The insurance company learned that it is ery easy for jurors to believe that the government agency did not know what it was doing and let it off the hook. Based on the jurors' feedback, the company learned how to demonstrate the government agency's full knowledge of the contract terms and thus its full responsibility.
Any effective offense must also be backed by the presentation of one's own client's actions, which anticipates or defends legal or rhetorical allegations. No matter how technical a case is and how many engineering experts are involved, jurors will decide the case based on their perceptions of who did what and why. Jurors judge people not things. A jury is much more likely to believe that a construction company used safe and appropriate construction methods, if they believe that the key players at the company had solid business and personal reasons to do a good job. A jury is perfectly willing to accept an insurance company that seeks to make a profit – but they mistrust an insurer who hides the profit motive.
What is missing from the political disputes and many trial strategies is a simple earnest position: we were responsive, we were honest, we tried to do the right thing, we think we did a good job, we made some mistakes and we admit them. By the time the parties reach the courtroom, the good feelings that were present at the beginning of the project have turned bitter and the parties' positions are even more entrenched than they were at the beginning of the litigation.
So instead of, "We were responsive," entrenched litigants sound a lot more like: "We were and are right about everything. Or almost everything. One way or another." In other words, litigants sound like politicians and as such are given very little credit by our jurors, unless they are preaching exactly what jurors happened to believe. One of the main reasons litigants lose credibility in our research sessions and in court is because they fight on all fronts, with good and not so good arguments trumping each other. Remember the "mountain of evidence" in the O.J. Simpson criminal case?
The realization that your case may touch on some politically galvanized issues is a good reason to take an approach that moderates the tone of the proceedings and focuses jurors on the work at hand. This is what people are hungry for: working, productive attitudes without grandstanding and "gotcha" moments. Yes, trial lawyers are advocates. But advocates who show jurors that they can see the case through their eyes are the most effective ones. Peripheral cues may impact jurors' decisions. Our experience suggests that the difference between winning and losing a patent jury trial is often related to an attorneys' use of peripheral scues to their advantage.