By Michael G. Terry of Hartline Dacus Barger Dreyer
Michael Terry has been a personal injury trial lawyer for more than 30 years, trying virtually every type of personal injury case, including a personal injury class action. As a partner in Corpus Christi office of Hartline Dacus Barger Dreyer, Terry has represented corporations, insurance companies and individuals, both as a defense attorney and as a plaintiff’s attorney.
When standing before a jury you must present a simple declarative sentence that delivers the essence of what your case is about. You need to be able to reduce your message to a sentence that a fourth grader can understand. If you cannot do it, get someone to help you. If, after this exercise, you still find yourself wondering what you’re doing standing before a jury, settle the case.
A simple declarative sentence should be the position you want the jurors to adopt. If possible, it should be as simple and elegant as, “if the glove don’t fit, you must acquit.”
Ask yourself, why are you there in the first place? Why has this case not been settled? With all due respect to the plaintiffs, their job is easy. Their simple declarative sentence is, “There he lies, he’s sick, he’s dying, or he’s dead. He was exposed to asbestos—their asbestos—give me the money.”
You need to answer why you are trying the case. Is it as simple as, “he breathed our stuff, but it was not enough”? Maybe the message should be: “He didn’t breathe our stuff. He didn’t see our stuff. Our stuff doesn’t hurt.”
Lessons from TV Commercials
The first step in getting jurors to adopt your position is to link it to the jurors’ self interest. Consider the TV commercials that fill the airwaves. Each one of them does no more than link the viewer’s self interest to the purchase of the product, whether it be the car that gives great gas mileage or the beer that makes the drinker more attractive.
For TV commercials, it’s easy to make a point: “This stuff is good for you.”; “This is a great car for you.”; “ Women will love you if you drive this car.” But in the courtroom, the perceived self-interest for people who find for the defendant is this: “This is not a system where we tax corporations that used to sell asbestos. This is a system of justice. And if it works here for this defendant, it will work for you.”
You have to make the jurors understand that it is in their interest to apply the rules of justice to find you responsible—and not simply the company that provided the asbestos.
Consider the TV commercials that are successful. The “Tastes Great, Less Filling” Miller Lite campaign persuaded all of us that we really liked—and were willing to pay more for—watered-down beer. That campaign worked because it surprised the viewer—and the viewer then paid attention to the message.
Say something that would not be expected from a defendant: “Asbestos is dangerous. It has always been dangerous. We have always known that it is dangerous. Asbestos will kill you dead. And anybody with a Junior World Book Encyclopedia dated after 1965 knows that. But what we didn’t know then—and couldn’t know then—is that asbestos locked into a gasket could cause anybody injury.”
Just agree that asbestos is dangerous. Nobody expects it. The jury hears it and all of a sudden you move the dispute to something else. You get beyond the filters that people put up to screen out what they expect to hear. You get them to listen to you. Say something incongruous and startling, otherwise you become a drone—just one more of a cast of many that are talking.
Whether or not you believe it, whether or not you feel it, whether or not you experience it, you have to exude the confidence that your position is correct. “Hell yes, we sold asbestos and we’re proud of it. We sold asbestos because it did good things.” You don’t want to apologize. You want to be confident in your position and you want the jury to know that you are confident.
Have empathy for the jury. I am not saying show concern for their comfort and well-being. Show that you want to make certain that each one of them understands you and that you bring with you the tools necessary to make certain that they understand you.
Avoid jargon. All of us—every single one of us—has the tendency to lapse into jargon. Before you know it, we’re talking about Amosite, Anthophyllite, Chrysotile, Serpentine, as if everyone knows what we those things are. We talk about OSHA regulations. We talk about the law. We talk about a number of concepts as if people know what we are talking about. The jury has no idea about any of that stuff—and I’m here to tell you, when they come in, they don’t really care.
Use “show and tell.” If you want to talk about gaskets, bring some gaskets. If you want to talk about insulation, bring the insulation, the engine block, whatever it is. You want to make certain jurors understand what you’re saying and that you have empathy for them. They will appreciate it.
Don’t be a poser. You are going to find yourself outside of your comfort zone in an offbeat jurisdiction. That is not the end of the case for you. You can do it. You just have to pay attention to what you are doing. Do not worry about looking like one of them. You’ll never pull it off. If the judge wants you to kiss his ring before trial starts, by golly, kiss his ring. He’s not the one you’re talking to. You’re talking to the 12 people that have been selected as jurors. Those are the people you want to persuade. Big companies spend billions of dollars on advertising following these rules. The reason they do it is because it works. And it will work for you in offbeat jurisdictions.