The Secrets You Need to Know
Though the jury has the difficult task of appraising what your loss means
to you, I am prohibited from asking them the one question that would most
efficiently sketch a context for them: "If you lost your arm (or
ten years of your life, or your child) as my client did, what would it
take to offset that for you?"
His Pants Are on Fire
Imagine that I know that the Defendant or his expert witness is lying to
the jury in your case. The most I can do is try to reveal the lie. I can't
go the next step and tell the jury, "He lied to you." The Judge
won't tell the jury this, either. This is not usually a problem, as
I have faith that the jury can recognize the lie when shown the facts.
But it can become a problem if the jury wonders,
though that man sure seemed to be lying, wouldn't Mr. Lenahan or the
Judge have said so?
Most civil lawsuits about injuries can be divided into two types: suits
on behalf of injured businesses, and suits on behalf of injured people.
There is an enormous difference in how the law is applied to these situations.
If a business sues for its injuries, it is usually the case that it can
seek to be compensated for the attorney's fees it was forced to invest
to get justice.
When a person sues for injuries, however, that law not only tends to restrict
the possibility of attorney's fees—it also prohibits me from
informing the jury that any fees will come from the award.
Win/Win Opportunity Declined
During the course of your case, we will look to extend an opportunity for
settlement that presents a win/win for the parties. For example, if a
jury is predicted to find that the proper damages are $500,000, offering
to resolve the case for $485,000 would save both sides money. The Defendant
would save $15,000 and you would not have to invest the time and money
that a trial always consumes.
But, no matter how reasonable the offer, your jury will never know that
you tried to resolve the matter without a trial.
Anything Admitted at Mediation
Very few cases ever go to trial without first going to mediation. Mediation
is a process where the sides discuss proposed terms of settlement. If
they agree, your case ends then. If there is no agreement, it goes forward.
Clients are often frustrated to hear a Defendant admit the wrongs and
injuries at mediation, and then deny them at trial. This can happen because
nothing said at mediation can be shared with the jury.
As we tell our clients before they hire us, our goal is to help them, not
hurt the Defendant. As a practical matter, this means that almost every
case is designed to seek the Defendant's Insurance only. (One exception
is when we are pursuing the truly evil: the murderer, the slumlord, the
molester et cetera.) Yes, if the jury knew this, it would be easier for
them to see that what you are asking for is clearly reasonable.
Secrets of the Defendant's Strategy
Confusion = Win
It is easy to understand the threshold for what we, as the Plaintiff, need
to do to win: show the jury that the credible evidence in the case favors,
even slightly, the truth of our position. Sure, the Defendant can win
if it discovers credible evidence that shows that our position is not
true, but that is only one way it wins. The easier way is simply to try
to confuse three people on a jury of twelve. Confusing is much easier
As a result, in almost every case, the Defendant will avalanche the jury,
often during their closing for the first time, with questions, arguments,
and unrelated points in an attempt to create the impression of,
gosh, I guess there are lots of issues that the Plaintiff didn't really explain. If the Defendant confuses three of the jurors, justice is denied.