In 2010 I stood before a panel of prospective jurors. I had read the (then new) book on reptile tactics. I had been to the Jerry Spence weekend getaway seminar. I had read everything else I could find to tell me how to be a better trial lawyer. But none of these had taught me what I was about to learn over the next three days in this courtroom.
My client was a very nice lady who worked as a nurse. She was driving on Loop 610 in Houston, Texas a few years earlier when a bucket truck hauling ceramic transformers lost its load in the middle of rush hour traffic. After her car hit one and careened to a stop, she got out and assisted other drivers with their injuries before going to the hospital to attend to herself. She had aggravated a preexisting back injury. The same one that a surgeon described as a “broken spine in need of fusion” 20 years before. She had spondylolisthesis—a condition where her vertebrae were shifted and misaligned in her low back. She never got that surgery and went back to nursing. After the accident I represented her for, she ultimately had that previously-recommended surgery. It failed.
Every plaintiff’s lawyer understands the difficulty of selling the aggravation of a preexisting injury case to a jury. But this client needed someone to fight for her. So, we turned down the $125,000.00 offer and proceeded to trial.
Eliminating the “Problematic” Juror
As I stood before the panel trying to eliminate those conservative jurors who wouldn’t give a plaintiff a dime, I zeroed in on a person who I had identified as a “problematic” juror because he had identified himself as a banker.
Trial lawyer’s classes teach us that bankers are conservative. Penny pinchers. Bean counters. People who don’t give damages to plaintiffs. I immediately judged him by the stereotype and wanted him off my panel.
“Sir, you work in a conservative banking environment,” I started. “I intend to ask the jury to award hundreds of thousands of dollars for causing my client a serious spinal injury in this case. If you were to sit on that jury and find that my client deserved hundreds of thousands of dollars, would your fear of being judged by your coworkers and peers when you returned to work the next day weigh on your mind in the jury room?”
It was a great question. I wish I could claim credit for it entirely, but it was just a variation on a question I heard from a much smarter lawyer while I was sitting in some seminar or CLE.
Then, the venireman threw me a curveball. “Well, not really. I’ve been in a car wreck before and I got letters and calls from lawyers like you but I didn’t have to sue.” He retorted.
“That answer wasn’t discussed in my CLE,” I thought. Wait. Did he just suggest I’m one of those no-good-ambulance-chasers that call up people after accidents in violation of the Texas Rules of Ethics? Did he just say that in front of my entire juror pool?
At that moment, I did the only thing I could. I placed my hand on my chest with all fingers pointing at me, lowered my head, raised both eyebrows and dropped my jaw in a look of astonishment that implied: “could you really be accusing me of such dastardly conduct?”
The venireman paused mid-sentence and, half-apologetic, half- chuckling like someone who had accidentally blurted out that taboo thought everyone’s inner voice shared but dare not say, said: “well I don’t mean you, specifically.”
I shook my head as if stunned and looked around the panel. The entire panel erupted in laughter.
Connecting to Overcome Stereotypes
In a moment when all eyes were on me and judging my every reaction, I did what I would have done had I been in a room full friends. I made light of a tense moment. But more importantly, I made a connection with not just one prospective juror, but with the whole panel. I was a real person, with a sense of humor, and not just a stuffy suit with a silver tongue. I was not just the same-old lawyer stereotype.
After the laughter died down, he continued “But you know, I understand why we need personal injury lawyers. I understand people get hurt and they suffer and fairness says our system should compensate them for that because that heath and that time lost has a value.”
To my surprise, my stereotype was wrong. He was a good juror for me after all. I left him on the panel. I was even more surprised a few days later when the foreman stood up to deliver the verdict that was about 2.5 times the offer and it was him!
I strongly believe to this day that part of the reason the jury did not just pour that case out as they do on so many aggravation cases in conservative Houston, Texas, is that those jurors connected with me. I nursed that connection throughout that trial and have taken the opportunity to do so in every case I could since then.
Paul H. Cannon