Fairness vs. The Law

Despite the hours attorneys spend arguing and refining jury instructions before and during trial, it turns out that more often than not, fairness matters more than the law to deliberating jurors.

A recent case in Los Angeles, a plaintiff-oriented jurisdiction by any measure, shows how this can play out in the courtroom. A tenant sued her landlord – Los Angeles Clippers owner and real-estate mogul Donald Sterling – over personal property destroyed in a fire. There were allegations of distasteful conduct by the apartment manager and employees after the fire, such as asking the tenant to pay the next month’s rent or face a report to a credit agency, and the plaintiff’s attorney developed a theme that all the landlord cared about was money.

While negligent, it's difficult to understand how jurors found this conduct rose to the extraordinarily high legal threshold required to award punitive damages, especially to the tune of $15 million.  The judge agreed – and has since overturned the December verdict.

Although there are likely many factors behind the award, including the defendant’s wealth and the nearly two-thirds of Angelinos who rent rather than own, the fact is jurors allowed their perceptions of what was “fair” and “right” to override specific court instructions about the burden for punitive damages, and awarded an amount nearly 50 percent higher than what the plaintiff’s lawyer requested. 

In a recent national survey we conducted of 409 participants, more than 40 percent flat-out admitted their sense of fairness, rather than the law, would guide their decisions.

So even if you believe the facts are strongly on your side, how do you approach this juror propensity to ignore the law in favor of their version of “fairness”?

First, understanding this widespread predisposition can help you and your team evaluate whether or not to take a case to trial in the first place.  If you have a case where jurors are likely to seek justice for the plaintiff – regardless of the plaintiff’s ability to prove their case – the exposure could quickly escalate once it makes its way into the jury’s hands.
 

Second, once at trial it is important not to assume a judge’s (sometimes lengthy and confusing) instructions will be enough.  In addition to arming defense-minded jurors with reminders about a jury’s obligations under the law, we believe counsel should acknowledge the juror potential to gravitate toward fairness and play to this by telling the defense’s story from the perspective of fairness.

If you have an upcoming case that you would like to discuss, please don’t hesitate to call us at 714.754.1010.
 

Beyond the focus group: Our other services

Hybrid Process

Although many of you are likely familiar with our proprietary focus group format, some clients opt for a “hybrid” approach to combine the interactive aspects of focus groups with the attorney presentation aspects of mock trials.

This is a popular research option because the juror discussions reveal the strongest themes, language and arguments for both sides, and the mock-trial component of the exercise allows claims managers and attorneys to evaluate and hone the presentations well before trial.

Online Research 

We frequently hear from clients that they have a tough case coming up, but the exposure just isn’t high enough to merit focus group research.  These same clients are surprised to learn that for years we’ve been conducting cost-effective online research to provide high-quality feedback for lower-exposure cases.

By presenting the case facts, arguments for both sides, and evidence and demonstratives to jurors online, it not only allows you to gain similar real-time feedback as in a focus group, but it saves on facility and travel costs.

Notably, this process allows us to reach a larger pool of respondents than a traditional focus group – with a minimum of 35 online participants providing written feedback, argument ratings, witness evaluations, pertinent case questions and language and thematic suggestions.  We conduct individual interviews with at least 10 percent of respondents to dig deeper and “push back” to get the same kind of insight you expect from our live focus groups. 

Other Services 

Jury Impact staff assists with jury selection and trial monitoring for dozens of trials every year.  Our seasoned analysts have the resources and savvy to provide on-the-spot advice on your most and least troubling jurors as well as how to tailor the defense’s message to the selected jurors.

In addition, with former news reporters on staff, our exit interview process can provide valuable insight into the mindsets behind jurors’ verdicts.  These insights can be applied to future cases once you find out what worked – and what didn’t.