The Jury is Listening – Things You Don’t Know but Think You Do

1. The Jury is Listening – Things You Don’t Know but Think You Do

2. Credibility

3. Starts with being prepared Command of the facts and the legal issues A theme A simple credible story You will be picking jurors … And they will be picking lawyers …

4. Appearance It matters • Be confident, prepared, organized • Be courteous. They will watch how you treat your associates, your paralegals, the court staff and the court • Shine your shoes …

5. Don’t Talk Like a Lawyer “Lawyer Words” The Enemy of Clarity

6. Remnants of the Renaissance: Using two or three words where one will do dates back to the Renaissance or even the Norman Conquest. Officially, court was conducted in French, but the clients and everyone else spoke English. So lawyers used both for important phrases. “Breaking and entering” “Last Will and Testament” “Free and clear” “Devise and bequeath” Examples: • “Prior to” or “Subsequent to” • “Indicate” • “Assuming, arguendo, ….” • “Part and parcel” • “Null and void” • “Query” “Notwithstanding …”

7. Don’t overuse adjectives They weaken what you are trying to say They are ambiguous. Spam Filters: People turn you off Mark Twain – “As to the adjective, when in doubt, strike it out!”

8. Makes you sound like a salesman

9. MacCarthy’s Bar Rule - Mark Bennett Talk to the jury like you are telling a story in a bar. Tell them a story an 11 year old can understand This is a case about …

10. Mark Bennett, “Sixteen Simple Rules for Better Jury Selection,” The Jury Expert, Vol. 22, Issue 1 (January 2010) All 16 Rules are discussed with commentary by five jury consultants.

11. Don’t talk “at” the jury From “Listen, Don’t Talk” by Jim McElhaney quoting the late Jim Jeans (who taught at NITA) (ABA Journal November 2009) “There are three secrets to picking a jury: Listen, don’t talk Ask, don’t tell Feel, don’t think”

12. Breaking the ice Do the jury questionnaire on yourself

13. Try to remember the goal of a blind date Talk with, not to the jury Get them to tell you how they feel about the case Don’t lecture them – the 90/10 rule Let them tell their story The Blind Date Rule (Mark Bennett) One blind date with 60 people – Jurors become a small “group”

14. Some more Don’ts” • Most lawyers talk too much – don’t • Don’t tell them your troubles • Don’t tell them that voir dire is a French word • Don’t tell them what you say is not evidence • The best voir dire in 5 minutes – Health Code Violation Case (max fine $500) • A restaurant – slime in ice machine • Judge – What neighborhood do you live in? • 5 minutes for each side • Both lawyers hit the hot buttons .

15. More to remember … Jury Selection is a “team” sport – Don’t swim alone Talk to all of them

16. Tell them a plain, short story of your case The five minute cocktail conversation … Meeting Dr. Jeffrey Brent – Triple Board Certified Medical Toxicologist

17. Contains “simethicone” which is “polydimethylsiloxane” The same ingredient in a breast implant Silicone is safe because … • Silicone is the most used material for implantable medical devices • Heyer – Schulte Corp (our client) pioneered the hydrocephalus shunt made from silicone • Thousands of shunts used annually to save baby’s lives since the 1960’s • Silicone is also used in heart valves, ear shunts, testicular implants and other devices • Edwards Laboratories – Silicone used in the heart lung machine

18. McElhaney – Awaken their sense of injustice • The heart of persuasion is preventing a wrong • We may not be able to define justice but we know what is unjust • “Even a dog knows the difference of being stumbled over and being kicked!” • McElhaney’s story of Helen Garcia accused of murder (as told by her lawyer, Randi McGinn of Albuquerque) (ABA Journal – November 2009)

19. Tell them you what you fear • Deal with the 800# gorilla • Talk about the hot button issues • Confirmation bias – interpreting data to confirm preconceived bias Jurors decide based on their gut feel then look for support in the evidence

20. Tell them what you fear It’s a big company What are you afraid they might do? From the Texas Pattern Jury Charge 1. Do not let bias, prejudice or sympathy play any part in your deliberations. 4. You must not decide who you think should win, and then try to answer the questions accordingly.

21. Put the Hot Issues on the table Animal Testing -- The juror and his dog

22. Control the focus of the jury Jurors will find something wrong where they place their focus Mobile Crane – some co-employees disconnected axle oscillating lock out system – why?

23. Control the focus of the jury Jim Perdue’s Example – Plaintiff drives to work the same way every day. She crossed the same intersection near the same time every day. But on the day of the accident she had to go pick something up at a store and approached the intersection from a different direction. And the accident happened.

24. Truck repair facility explodes. Whose gas was it?

25. Most jurors make up their minds early based on existing feelings or prejudice Decide on their “gut” and look for confirmation If an expert is in conflict – They ignore him Jurors Don’t Pay Attention to Experts

26. Experts Condescending, arrogant, defensive or evasive on cross Boring or confusing – they are of no help

27. Experts – Explain it to the bus riders Dr. Angela McCain from Sugar Land

28. The best cross – examination may be no cross Vaughn Crawford and Dr. Henry

29. Thank You!! -- D. Mitchell McFarland