Publications: Motivating Your Jury to Correct the Injustice in Your Case

Trial lawyers spend a lot of time talking about justice. They seek justice for their clients. They want a just result. I suggest, however, that talking of justice is not the best way to motivate your jury at trial. Justice is a theoretical concept. On the other hand, correcting an injustice is a motivation to act, a call to arms for the jury to accomplish something beneficial. If you want to motivate your jury, focus on the injustice to your client. It is that injustice that you want the jury to correct through its verdict.

Injustice is a powerful tool because we have all experienced it. Not just as lawyers but, more importantly, as human beings. Everyone in that jury box has experienced injustice as well. They identify with it, they know it when they see it, and they would love an opportunity to act to correct it. How can the trial lawyer effectively utilize the desire to correct an injustice in the courtroom? The answer is by finding the injustice and making it a centerpiece of your case, a theme the jury can take back into the jury room.

What kind of injustice can a plaintiff’s lawyer capitalize on to motivate a jury? For plaintiff’s lawyers, this process comes naturally. A client has been injured. Correcting the injustice in the wrongful injury requires the jury to act on her behalf and to compensate her with money damages, an injunction, or whatever other relief is available. It is one thing to ask the jury to do justice for the little girl who has lost her mother. It is quite another to motivate the jury to correct that injustice, to take action to help ensure the girl’s needs are met through a verdict.

Oftentimes the injustice hinges on greed of the defendant—from the fiduciary and controlling shareholder who uses the company as his own personal automatic teller machine at the expense of the minority shareholders, to the corporate giant who puts profits over safety. The unfairness created by greed is something we have all experienced. And 99.9 percent of us still remember it and would relish the opportunity to correct it.

Injuries are both unfair and an injustice. We all have seen people injured and seen people suffer. Jurors identify with suffering and, in most cases, are affected by it. In severe injury cases, most juries are sympathetic to the plaintiff and would like to help him.

Respect is another powerful plaintiff’s theme. We all know what it feels like to be treated in an impolite manner, with no respect. Whether by the impudent young loan officer with a smirk on her face as she denied the loan we needed to make that last house payment or by the sales clerk at the department store who would not give us the time of day because he was serving the better-dressed customers, we all know the feeling. And many of us would like an opportunity to register our protest against those who treat others without respect.

Sure, some of you are saying, that’s great for the plaintiff. But what about the defendant? How does defendant’s counsel find injustice? The answer lies in the same approach.

Accusations are easy to make. Accusations that are wrong are unfair. Unjust. Injustices that need correction.

These injustices come in all shapes and sizes. I find it helps if the jury is allowed to understand the motivation behind the wrongful accusation. For example, it is one thing to be accused of wrongdoing but quite another when the plaintiff doing the accusing is seeking millions of dollars. That’s right—the damage claim is a built-in theme, in the appropriate case, for the motivating factor of greed.

If the jury understands and accepts why the plaintiff sued—other than the plaintiff’s claim of wrongdoing by the defendant that motivated the suit—the defendant’s lawyers always will get better results.

For example, in a medical malpractice case involving attempted suicide by the plaintiff, the plaintiff admitted that he had left the doctor’s office and driven all the way to his driveway before he proceeded with the suicide attempt, and that when he finally returned home with slashed wrists, he insisted on being taken to the defendant doctor’s medical clinic. When the jury understood, based on the plaintiff’s own admissions, that he had found suicide a better alternative than returning home, it was easy to understand his motivation for the suit. So the plaintiff could keep his negative feelings about his family from them, it had to be the doctor’s fault. Since he was unwilling to tell his family what actually triggered the suicide attempt, blaming the doctor was a convenient avenue of dissembling and avoidance.

In another case, the plaintiff underwent a liver transplant and during the surgery required two above-the-knee amputations. The explanation for the plaintiff’s lawsuit? Anger. Anger was a natural response for a young man who had lost both his legs; even the plaintiff’s rehabilitation expert admitted it. But when the plaintiff’s rehabilitation expert on redirect examination attempted to justify the plaintiff’s anger based upon his horrible injuries and lengthy and painful rehab, she allowed defense counsel to drive an injustice theory home in dramatic fashion. In re-cross-examination, he asked her whether she would agree that misdirected anger was never appropriate, even if the plaintiff’s anger was justifiable based on his injuries. She answered: “That’s what my mother always told me.” What the plaintiff’s expert’s mother always told her became the direct theme of the defense closing argument—that the plaintiff’s misdirected anger at the doctor was inappropriate. A subsequent defense verdict showed that exonerating a defendant who has been wrongfully accused is an injustice that juries are willing to correct, even in a case involving the utmost sympathy for the plaintiff.

Look for the injustice in your client’s case and present it to the jury. You will be glad that you did.

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