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Massaging Jury Instructions

When we, as plaintiff's lawyers, get to closing argument we need to make sure our jurors understand the law. We should not assume that jurors understand the jury instructions. Jury instructions are written in a language which is unusual to say the least for jurors. Moreover the instructions usually contain far more information than a juror, who is not a lawyer used to looking at laws, can take in at once. When the jurors don't understand the law, the plaintiff's case is the one that usually suffers. Thus we, as plaintiff's attorneys, need to make sure the jurors clearly understand the law before they go into deliberations. We also need to teach our jurors what they can and need to do in the event that the other jurors don't understand the law or refuse to follow the law. To this we need to advise the jurors, just as we did in our opening statement, that they have certain rights. One of those rights is to be on a fair jury. A fair jury is one that follows the law in reaching its decision. Explain to your jurors that if another juror fails to follow the law, for instance if other jurors wish to take into consideration facts which the law does not allow them to consider, advise your jurors that they can have the judge called into deliberations at any time. The judge will then explain the law to any jurors who wish to not follow the law or otherwise just don't understand the law.

What instructions you need to massage will depend on your particular case. Often times you will need to explain what negligence is and you will need to explain the damage elements of negligence in particular. To do this you should again use visual demonstrations. Poster boards make this easy. On your poster board write down the essential part of whatever important instruction you wish to explain. David Ball points out for instance how negligence is commonly misunderstood by not only jurors but by lawyers too. If the definition of negligence is "the failure to use the level of care an ordinarily careful person would use in the same circumstance" then you need to explain what this means to your jurors. You can explain to your jurors that a person being "ordinarily careful" does not needlessly endanger anyone.

To massage the jury instructions David Ball suggests a four-step process. First, show the essential part of the instruction. Do this by showing them the portion of the instruction on poster board so that they can visualize the instruction. Secondly, without looking at the board repeat the words as written on the board to your jurors. After you have done this you can now explain what the jurors are looking at on the board and what they have just heard in plain English. Now the jurors can really understand the instruction. Lastly apply the facts of this case to the instructions. Do this after you are sure the jurors understand the jury instructions. Show them how the evidence of the case directly applies to the law at hand.

David Ball makes an excellent point when he directs us to educate the jurors not only on the jury instructions but on many other misconceptions which jurors tend to make. For instance, jurors sometimes believe that because a defendant didn't "break a law" that the defendant cannot be blamed for his actions. On this point you need to educate jurors that negligence does in fact constitute breaking the law. Educate your jurors by telling them that the law requires care and when an individual acts negligently he or she no longer uses care. Thus the defendant who doesn't use care needlessly endangers the public. See if you can get the defense to agree to these terms in deposition first and then on cross examination second. This way when you say it to your jurors you can say that the Defense agrees that negligence is against the law. Another good point Mr. Ball makes is that we need to educate jurors on the misconception they may have when they think they don't need to provide compensation for a particular harm if they don't wish to. We need to educate them on the point that if they find that the defendant did cause an element of damages then the jurors must apply a dollar figure to that harm equivalent to the level of damage incurred.

When you are massaging your jury instructions in closing argument you can now apply the language of the law to the concepts that you have been teaching throughout trial. Wait until closing argument and until you begin massaging the jury instructions in particular, before you do this. If you try to teach jurors the language of the law early on in the case they won't be able to digest it. Wait until the end of trial and then explain how the concepts you have been teaching them throughout trial fit the definition of the law as described in the jury instructions. For example, throughout trial you will have been teaching the "more likely than not" theme. In closing you will tell them that "preponderance of the evidence" term found in the jury instructions is simply this same "more likely than not" concept you have been discussing throughout trial. Using your hands as always to describe the concept. The jurors then easily make the connection and understand the term.

Another point you will want to employ at this point in trial is that the non-economic injuries far outweigh the economic injuries that plaintiff incurred. To do this David Ball suggests you use a chart. Any type of visual aid that you can use to make your point is generally a good idea. Some people are auditory learners, others are visual, and most a combination of the two. Thus teach the case trough both senses as much as possible. When you can hand objects to jurors so that you can also appeal to their kinesthetic senses. But the point here is, that you should create a chart and on your chart list all of your major economic damages on one side, then list all of the non-economic damages on the other side. You want the list of non-economic damages to be longer than the list for economic damages. In this way you can demonstrate to the jurors that the more significant injury in the case is the non-economic damages. You can then point out to your jurors that they will need to put a dollar figure on each item of harms and losses. This gets your jurors thinking about not only the difference between the non-economic and economic injuries your client sustained but it also gets them thinking about allowing money for each type of injury which falls within one of those two categories. The more you can identify separate individual injuries the easier you make it for your jurors to calculate the total damages.

Part of the new school of thought in these plaintiff's personal injury cases is that there are times when you may not even want to mention how much the past economic damages cost. The reason for this is that the jurors will typically look for any type of tangible number to use as a benchmark or baseline for calculating a total verdict. Thus if they have a number for past meds of say $25,000 they can then say "well maybe the verdict should be two times the meds". Or they can say that the non-economic damages should be "half the value of the meds". In any event the meds will anchor your juror's ultimate verdict downwards at times. If you have really high meds then you probably want to get that number out in front of your jurors. However, if you have low meds then you may want to leave them out as this number may just reduce your ultimate verdict. This is especially the case for severe injuries which can't readily be treated by medicine. The severity of the injuries, in these cases, may far outweighs the value of the medical specials injured. Thus omit them entirely so that the jurors don't anchor their ultimate verdict to a small amount of medical specials. This is becoming more common practice in modern day plaintiff's trial advocacy.

I wrote this short article for my, Eric Roy's, own benefit. If you wish to have a thorough understanding of the material I refer you to the works of highly regarded trial consult David Ball. Most of the information above comes from his brilliant teachings. In addition to David Ball's work you can refer to the publications of Don Keenan, who is perhaps the most successful plaintiff's trial lawyer in the country. A lot of these core concepts come from legendary trial lawyer Moe Levine, who was probably the most successful plaintiff's trial lawyer of his time, and a significant influence on modern day plaintiff's trial advocacy.

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