This is the first in a series of newsletter articles where I talk about the interesting — and odd — things juries care about.
In addition to representing my own clients who have sustained serious injuries, other personal injury lawyers around the state also hire me to run mock jury focus groups on their behalf. This year, I am on track to run over one hundred focus groups for other lawyers. (Of course, I also frequently run these on my own cases too.) My goal in running these focus groups is to help my colleagues on the plaintiff’s side discover the weaknesses in their own cases so that they can either improve the settlement value or the likelihood of success at trial.
In conducting nearly one thousand focus groups over the last decade, I have helped other lawyers improve their clients’ cases. But more importantly, these focus groups have helped me to become a better advocate for my own clients. Along the way, I have learned that juries care a lot about things that do not have a thing to do with the law read to them by the judge.
Issue 1: What happens with the money?
Juries always want to know what happens to the money they award. In most cases, the plaintiff is a competent adult who can handle their own finances well. The people who make it onto juries are usually a good judge of character — they can usually sniff that out. When that is the case, I am not concerned.
Unfortunately, sometimes that is not the case. Sometimes the plaintiff has sustained injuries that make them completely unable to take care of themselves, including of their finances. Sometimes, the plaintiff was dealing with life problems beforehand that meant they came into their injury with limited ability to handle the responsibility that comes with handling a windfall. And sometimes, jurors just do not trust the plaintiff’s friends and family members.
For example, years ago, I focus grouped a case where the plaintiff had a history of making poor life decisions — decisions which would come into evidence at trial. And after the injury, he was having real problems taking care of himself. The focus group jurors started to debate why they should award one or two million dollars to a guy who probably did not even have a bank account. One juror chimed in, exclaiming “He can rake the money into a pile in his front yard and light it on fire for all I care. Why is it any of our business?”
That juror was right, of course. But the other eleven participants on that focus group jury said the same thing that almost every other juror (mock or real) says: “If we are going to award the money, we care!”
Attorneys as advocates for our clients should care too, for a few reasons. First, good attorneys want to make sure that their clients are well taken care of with any money they receive from a settlement or a jury verdict. The focus group jurors were probably on to something — that guy probably could not be trusted to safeguard his money, and if he received a large amount of money, he would probably blow it all in short order and on a series of bad decisions. Second, that money may never be awarded by a jury in the first place if they are worried that the client will squander the money.
So what does a good lawyer do in this kind of situation? One strategy our office learned years ago is the importance of hiring a Conservator in a case like this. Generally, a Conservator is another lawyer hired solely to stand in the place of the injured plaintiff and protect their money. With our client’s permission, we hire the Conservator to get appointed by the Probate Court where the client lives. We then substitute them into the case. At trial, the Conservator takes the stand and testifies about their role — their legal obligations, and how they will wisely use the money to assist the injured plaintiff. For example, how they can invest funds to earn interest, how they can ensure funds are being used to pay for necessities, and so on. This makes the jury much more comfortable that they can award a significant amount of money that will work to the benefit — not the detriment — of the injured plaintiff.