Don’t Let Sympathy Drive Your Jurors

One of the toughest challenges any trial lawyer faces is getting jurors to put aside their sympathy and emotions and decide a case based on its merits and the law.  Some jurors don’t even try, and even those with the best intentions often find it difficult to disregard their sympathy for a plaintiff who has been injured or suffered some other tragedy.  There is simply a natural human tendency to want to “take care of” people in need.

Juror sympathy is more widespread and stubborn than you might think.  We conducted a nationwide survey of more than 1,200 jury-eligible participants earlier this year, and 44 percent admitted sympathy would play a factor in how they decide a case – even if a judge specifically instructs them not to let it.

Of course, some kinds of plaintiffs elicit more sympathy than others.  In the same survey, we asked respondents which types of plaintiffs would lead them to award higher damages.  The top four damages-favorable plaintiffs?  A baby (61 percent), younger than 18 (56 percent), an elderly person (42 percent) or a single parent (38 percent).  Just as significantly, the bottom two responses were plaintiffs who are lawyers or men, at 5 percent each.  These results indicate the plaintiff’s vulnerability may be the most important factor in determining how big a role sympathy may play in your case.

Although sympathy can be one of the most difficult aspects of a case to replicate through research, during our focus groups and online surveys one of the ways we assess the sympathy factor is by playing Day in the Life videos or showing photographs.  By observing juror reactions and asking for their thoughts, we can identify roughly the influence sympathy may have in the courtroom.  For example, during a recent research session two jurors started openly sobbing while watching a Day in the Life – and their perspective on the case was extremely plaintiff oriented from the outset of each group.

At trial, we always recommend asking the judge to give repeated jury instructions to set sympathy aside and rely solely on the facts of the case, but – as our survey indicated – instructions alone often aren’t enough.  We recommend using voir dire to identify, question and possibly eliminate potential jurors who are most likely to be swayed by sympathy – such as parents or grandparents with children the age of the plaintiff and “caregivers” such as teachers and social workers.

Finally, we believe it is important not to cede the sympathy ground to opposing counsel.  Especially when representing a corporation such as a hospital or product manufacturer, humanizing your client through caregiver or employee testimony can help you level the sympathy “playing field” and prevent jurors from empathizing with only the plaintiff based on their vulnerability.

If you have a case where you’re worried about the sympathy factor and you would like to discuss how to mitigate it at trial, please contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.