By Rafael Urquia
Originally published in the December 2018 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
Good lawyers with good cases lose trials – all the time. What? Impossible! This defies all common sense and reasoning. I’m a trial lawyer. I know how to present case! Good lawyers with good cases lose jury trials because six to twelve community members decide a case not a lawyer or a judge. So, it does not matter if you are the world’s greatest lawyer or you have the world’s greatest case. If you do not effectively communicate with a jury, you will lose. Winning Case Preparation: Understanding Jury Bias teaches you the scientifically-based Bottom Up case preparation approach to help you recognize common juror biases, counter these biases, and successfully communicate with a jury for a winning verdict. In the end, this book is all about two words: focus groups.
For decades, the Winning Case Preparation: Understanding Jury Bias authors have been scientifically obsessed with figuring out why good lawyers with good cases lose trials. As they write in the first sentence in the first chapter: “[a]s you’ve probably noticed from the introduction, we’re obsessed with science.” In the early 1990s, Gregory Cusimano and David Wenner, two nationally-recognized Plaintiff’s attorneys, started conducting hundreds of focus groups with other trial lawyers to address why good lawyers with good cases were losing at trial. As a result of these groundbreaking focus groups, Cusimano and Wenner were able to formulate a hypothesis which formed the Juror Bias Model.
The first section of Winning Case Preparation: Understanding Jury Bias describes the Jury Bias Model’s five common juror biases: (1) suspicion; (2) victimization; (3) responsibility; (4) stuff happens; and (5) blame the Plaintiff. Simply put, the Juror Bias Model details the reasons why jurors do not like Plaintiffs, Plaintiffs’ attorneys, and personal injury cases. And, if you think that jurors are getting more “Plaintiff friendly” over the years, the authors of this book would respectfully disagree with you. In fact, they believe jurors are becoming less “Plaintiff friendly” and there is little to no improvement in sight. The book does an excellent job of concisely describing the five juror biases and giving real-life examples of these biases. It is fascinating (at least in a sick and twisted way) to learn how a person’s bias can influence his or her view of a personal injury case. Have you ever talked to a juror after a case and thought: this is totally crazy? This book helps to explain why that juror is not crazy; rather, he or she is thinking with predetermined views, beliefs, and biases that directly influence how they view your case. And, once again, the only people that decide your case is the jury. They are the only people who matter.
The second section of Winning Case Preparation: Understanding Jury Bias focuses on the Jury Bias Model’s Ten Commandments which provides you a strategy to build a case that combats the five juror biases. The following Ten Commandments are the building blocks for the Bottom Up approach to preparing cases: (1) compose a trial story; (2) elicit confirmation; (3) remember that beliefs preserve; (4) sequence the available evidence; (5) heed the norm; (6) reverse the fundamental attribution error; (7) plan for hindsight bias; (8) create empathy; (9) drop the anchor: and (10) build the frame. The Bottom Up case preparation approach uses these Ten Commandments to build a trial story that is consistent with the juror’s beliefs instead of a trial story that will be buried by the jurors’ biases.
Before the authors describe the Bottom Up case preparation approach, the next section of Winning Case Preparation: Understanding Jury Bias explains the difference between the Bottom Up approach and the traditional top-down case preparation of a case. The traditional top-down system is used by most attorneys. This approach begins with the elements of the law. Then, the attorney fills in the facts and experts to prove each element of the law. It is what we learned from the first day of law school. It has been around for centuries. The problem with this approach is that it relies on logic and deductive reasoning. But, unfortunately, jurors do not rely on the logic and deductive reasoning (if they did, we would all be millionaires by now). Instead of logic and deductive reasoning, jurors rely on their beliefs and biases when reaching a verdict. The Bottom Up case preparation approach does not start with the law. It starts with the jurors’ beliefs and biases and then builds a case around these beliefs and biases. In other words, it starts with what the decision makers think is important. After all, while the law and facts are important, the way the jurors view the facts and the law is what decides your case.
The rest of Winning Case Preparation: Understanding Jury Bias outlines the seven-step Bottom Up case preparation model: (1) get the facts; (2) jury research; (3) case core; (4) reframe; (5) trial story; (6) test and modify; and (7) beliefs. You will quickly notice that elements of the law is not listed as one of the seven steps. Why? Because the authors propose that the jury does not decide your case based on elements of the law but rather their beliefs, biases, and life experiences. The authors do an excellent job of clearly and concisely describing the seven steps of their case preparation system.
As the authors write, the Bottom Up case preparation system is not a one-size fits all formula but a comprehensive process that works with all cases – big or small. It is a system that uses focus groups to determine what the jury will think is important about your case. After you figure out what the jury thinks is important, you then build your case around what will resonate with the jury. It’s a simple, brilliant concept that contradicts that traditional top-end approach of looking at the elements of the law then filling in the facts to prove your case. You should learn what the jurors will think is important first then create a story around what the jurors actually care about when deciding your case. The Bottom Up case preparation system should be used early in your case not at the end of it. There is little point to discovering what the jurors think about your case after it is over. Why not figure out what the jury will think about your case at the beginning, so you can conduct discovery to help you build your story, voir dire, opening statement, case-in-chief, cross-examinations, and closing arguments that will crush the defense at the trial.
The Bottom Up case preparation system revolves around using focus groups. The authors recommend that you use professionally-conducted focus groups (more about this later). First, you investigate the facts and use focus groups to help you determine what facts may be important to the jury. Second, you use focus groups to understand the beliefs and biases of the jury in your case – which help you look for facts in discovery. Third, you start building a case core composed of a moral and a simple story based on the jurors’ (focus group’s) beliefs and biases. Fourth, you reframe the facts into a trial story that will resonate with the jurors. Fifth, you test your trial story with focus groups – which allows to you to modify it before trial. Sixth, after completing the previous five steps, you now will have a firm grasp of the jurors’ beliefs and biases. You are now equipped with the information and tools to excel at trial.
Obviously, I oversimplified the Bottom Up case preparation process. However, the authors do an excellent job of writing a clear, concise book. The book is only 200 pages. I easily read it in one afternoon (and I am a slow reader). It is well written and well organized into ten chapters. Furthermore, the book includes short conclusions at the end of each chapter, which you can use to refresh your memory after you finish the book. Finally, the authors include several different types of cases to illustrate their points – which keeps the book relevant and interesting.
I have a few questions for the authors. The authors recommend using professional focus groups in all different types of cases. It is not plausible to use professional focus groups for many “modest” cases because of the cost of these focus groups. You cannot expend ten percent of the case’s value on focus groups. Next, what about small law firms or solo practitioners in rural areas? We do not have the time, resources or money to either drive to a professional focus group consultant in a metro area or pay for the consultant to drive several hours to us. As such, it would have been helpful if the authors included a chapter dedicated to explaining how an attorney can run a low-cost focus group in his or her area. The authors briefly list focus-group alternatives, but I do not want an alternative to a live focus group. I want the real thing!
Why should you buy this book? Do you conduct jury trials? If yes, you should buy this book. Do you want to get better at jury trials? If yes, you should buy this book. Do you want to learn about the benefits of focus groups? If yes, you should buy this book. At the end of day, the only thing that matters is what the jury thinks about your case – good or bad. It does not matter what you think, your client thinks, the defense attorney thinks, or the judge thinks. So, do you want to learn about a process that allows you to find out what the jury thinks – the only thing that matters – before the verdict? If yes, you should buy this book.
Rafael Urquia, EAGLE member, is the owner of Urquia Law, PLLC on the Olympic Peninsula. His practice focuses on personal injury and insurance law case. Rafael serves on the WSAJ Trial News Editorial Board and the WSAJ Judicial Committee.