Three Lessons Learned EnRoute to Six Jury Verdicts
Written by Travis Brennan
2019 was a busy year with six civil jury verdicts (2 medical malpractice and 4 personal injury) in five different counties (York, Cumberland, Androscoggin, Penobscot, and Aroostook). In three of the six cases, we recovered six figure verdicts that far exceeded any pre-trial offers from the insurance company. In one of the six cases, an Aroostook County jury awarded $1.2 million to compensate our client for serious injuries to her leg after a local hospital failed to properly monitor and treat her leg for internal bleeding. There are three important lessons that I learned from these trials.
- Be Wary of Stipulations
In several of my trials last year, Defendants sought to stipulate to liability on the eve of trial. Defendants suggest that they have pure and good intentions when they extend these stipulations to liability: “we take responsibility;” “I just want to simplify the case;” “we don’t need to waste time;” etc. Beneath the surface of these words are ulterior motives. The Defendants want to divorce the actions that caused the injury from the injury itself. Once you accept a stipulation to liability, the Defendant will then argue that all of the negligent actions that caused your client’s injuries are irrelevant. The Defendants will use the stipulation as shield to neutralize powerful facts in your case and to preclude your presentation of a cohesive story about the incident that caused your client’s injuries. Remember that a stipulation requires agreement by both parties. You should only enter into a stipulation to liability once you have weighed the risks and benefits.
- Harness the Power of Core Truths
A core truth is a foundational principle in your case that is authentic and integral. Every case has one or more core truths that relate to the issues of liability and damages. Tapping these core truths is essential to harnessing the power of your case, because juries see cases for what they are and they can spot facades. Identifying the core truths in your case involves spending time with your clients to understand their past; the injuries they experienced; the process of recovery; and their passions in life. Core truths enhance the power of your case by transforming potential weaknesses (i.e. arguments the Defendants will emphasize) into strengths. To be most effective, cultivate core truths early so that they can be discussed by your clients and experts during discovery.
- Apply New Approaches to Jury Selection
Jury selection may be the single most important part of a trial. Ensuring the selection of a fair and impartial jury is critical to providing your client with an opportunity to prevail. All it takes is one or two jurors who have underlying biases or prejudices towards you, your client, or your case to undue all of your hard work at trial. The traditional jury selection process has glaring flaws that limit attorneys’ ability to identify fair and impartial jurors. In three of my six trials in 2019, the Court permitted a new approach—by Maine standards—to jury selection in the form of attorney-directed voir dire. Attorney-directed voir dire provides attorneys with an opportunity to explore attitudes, experiences, and beliefs that jurors may hold that would disqualify them from sitting on a jury. In my cases, attorney-directed voir dire led to the removal of certain jurors who were hostile to the idea of awarding money damages for pain and suffering and other jurors who had strongly rooted biases about personal injury cases or premise liability cases. For attorney-directed voir dire to be effective you must develop a clear plan in advance of jury selection that outlines the topics you intend to cover and the time estimates for each topic.