OTLA Trial Lawyer Fall 2020

26 Trial Lawyer • Fall 2020 is on the jurors’ minds from the begin- ning. Throw away any ideas about pre- senting an opening statement or advocat- ing to the narrative focus group — do not try to persuade anyone. The narrative focus group is basic and neutral. Take the following example of a neutral introduc- tory statement for a disputed liability car crash case that I am preparing for trial. I slowly read the below neutral statement to the participants two times at the be- ginning of the narrative focus group before asking questions: Thirteenth Avenue is a one-way street running south. Clay Street is a one-way street heading west. It’s January 19, 2017. It’s around 10:30 p.m. It’s dark. Jimmy is driving his F-350 pickup truck south on 13th Avenue, approaching the intersec- tion of 13th and Clay. Suzanne is driving her Jeep Cherokee west on Clay Street, approaching the inter- section of 13th and Clay. Both ve- hicles are approaching the intersec- tion at the same time. They enter the intersection and crash into each other. Both drivers claim they had the green light. There are no eyewit- nesses. Suzanne states she had just turned off 12th Avenue onto Clay Street, and, as she approached the intersection of Clay and 13th, she slowed for the red light, which then turned green. She states she then proceeded into the intersection where Jimmy’s vehicle hit the front passenger side of her Cherokee. Jimmy states, as he approached the intersection, he had a green light, and, as he proceeded into the inter- section, Suzanne’s Cherokee hit the rear quarter panel of his driver side, as he was almost through the inter- section. I write and rewrite this statement many times to ensure it is fair and neutral to both sides. The facts should sound bland and be as simple as possible. After reading this neutral statement to the focus group, I ask the following ques- tions, usually in the following order: 1. What is this case about? 2. What do you think happened? 3. What caused the collision? 4. What more do you want to know? 5. Please take out a piece of paper….and if you think anyone is at fault, and I’m not saying anyone is, but if you think anyone is at fault, write the name and the percentage of fault. If you find that anyone or multiple people are at fault, then the total percentage must add up to 100%. If you believe no one is at fault, then write that. Write your name on the paper. 6. What did you write down? What are the top two reasons why? (I ask this individually to each focus group par- ticipant in front of the group. Then I collect the papers). At this point, the focus group does not have enough information to render a verdict. But I am not asking the par- ticipants to render a verdict — I am trying to find out what they already be- lieve about this neutral, factual situation. I want to know where their minds natu- rally go, what they already believe and what prejudice they might hold against a plaintiff from the most basic of facts. This information will help guide discov- ery, frame my case and help me craft an opening statement that addresses every- thing the jury wants to know. I expect several focus group members to tell me they don’t know who is at fault yet or they need more information. I ask them “Why?” and push for gut reactions, while noting the reasons they don’t yet know who is at fault. I then transition to search- ing for what information the focus group needs to determine fault. My absolute favorite question is “What more do you want to know?” I follow that up with “Why?” or “Why would that matter?”The answers to these questions tell you what a jury already thinks about a factual situation, and what investigative points they will want to hear discussed during trial. Often, these are the seemingly irrelevant factors that should play no part in the verdict. But, because they matter to the jury, they are relevant. The focus group will tell you which of these seemingly irrelevant fac- tors you need to address at trial. Examples include: • “I would like to know if the traffic lights were broken.” • “Was either driver on pain medica- tion, because a lot of people are these days?” • “Were there cameras on the nearby buildings?” • “I would like to know whether their tires were bald or had good traction.” • “Was one of the trucks lifted (raised off its wheels)?” How many times have you heard a lawyer complain about a seemingly crazy post-verdict fact or idea the jury relied on to sway the verdict toward the de- fense? A good narrative focus group Focus Groups: Johnston Continued from p 23