Six months after the public was riveted to press coverage of the oil spill in the Gulf, impact on energy defendants has been less doomsday than feared. In fact, this is one of the better times in the past 10 years to be an energy defendant in front of a jury. Why? Much as the spill itself appeared to dissipate more rapidly than expected, the tide of public opinion has drifted away from concern over the environmental practices of energy companies, and toward concern over the economy. A recent Pew Research Center survey found the economy was identified as Americans’ top policy priority for 2011 by 87% of respondents. The public is also focused on resentment of what many perceive as a failure of government to fulfill the promises made in the 2008 election. Continue reading →
Our research consistently indicates jurors, arbitrators and judges evaluate cases through two perceptual filters, or lenses.The first is a filter of “power” and the second is a filter of “choices”.Specifically, they seek to know which party had the most power to alter the outcome of the dispute, and which party had the most choices.Our pre-trial research consistently demonstrates the more powerful party bears the burden of persuasion in the courtroom.Furthermore, social science
researchdocuments that the more choices a party is perceived as having, the more responsibility is attributed to that party and the more likely decision-makers are to perceive the consequences to the party with fewer choices as being damaging.Continue reading →
Yesterday I received a call from a client seeking argument strategies for a punitive damages presentation in a bifurcated personal injury lawsuit.After discussing argument approaches, I shared with him what I consider to be the single most important piece of advice for any attorney defending a company in a bifurcated trial today – educate jurors at the outset of the trial that the case is bifurcated and that they will deliberate on punitive damages should their initial verdict trigger the punitive phase.
True, research confirms that bifurcation makes it less likely jurors will find against a defendant on liability and causation.However, when jurors deliberate punitive damages in bifurcated trials in which they are unaware during the compensatory phase that they will be given the opportunity to award punitive damages, they augment the amount they award in compensatories, are more likely to award punitives when that phase comes, and their punitive damage awards are higher compared to when they are aware of the potential for a punitive phase.
In-house counsel calls you on the eve of trial, admonishing “I trust you know I expect you cannot lose this case.After all, your opponent is a pro se plaintiff.”But surprisingly, you can lose.In addition to never underestimating a pro se’s appeal to jurors, the following steps will help insulate your advocacy and case’s persuasiveness against juror bias in favor of, and judicial deference toward, a pro se litigant.
1.Secure protective procedures for the pro se’s direct examination.At your earliest opportunity, seek clarification from the court on how the pro se’s direct examination will be conducted.Various structural ground rules can be implemented to protect against the pro se interjecting inadmissible information into a direct examination monologue.These include:
Advance exchange of the pro se’s direct examination outline ,
Having the court require the pro se to introduce direct testimony in a topical format.
Previewing each new topic area in advance and thus affording you the opportunity to object to subject areas before the testimony is asserted.
An admonition by the court reminding of the rules of admissible and inadmissible evidence.
Evidence shows that false documents were notarized by employees and submitted to a state regulatory agency.Evidence also shows that record-keeping was inaccurate; nevertheless, these matters cannot be addressed due to the parameters in the jury instructions. (Female, 55 year-old)
This quote, spoken by a juror after serving in a two month oil and gas production trial, typifies feedback I am receiving from jurors in a wide array of different cases in venues across the country.While jurors are troubled by evidence they see at trial, and possibly even want to find against a defendant, they are adhering to the confines of jury instructions like never before.Continue reading →