LawyersUSA

Influenced by tales of frivolous lawsuits and outlandish verdicts, many jurors are suspicious of plaintiffs' attorneys even before the start of a trial.

Veteran personal injury lawyer Jerome F. O'Neill, a partner at O'Neill, Kellner & Green in Burlington, Vt., believes it's best to face those suspicions head-on and deal with them in each aspect of a trial – from opening to closing argument.

"Jurors these days are suspicious of plaintiffs and they are suspicious of lawyers," O'Neill said. "They see lawyers as fast-talkers who are trying to pull the wool over their eyes."

A former prosecutor and prominent plaintiffs' lawyer, O'Neill lectures frequently to other lawyers about trial strategy.

"I tell them not to fall into the stereotype of the lawyer who talks down to the jury and asks for huge numbers [in a verdict] without a basis for arriving at that number, or states conclusions rather than facts," he said.

The approach seems to work. In May, O'Neill and firm colleague John Evers won an $8.7 million verdict on behalf of a former altar boy in a negligence suit against the Diocese of Burlington. The landmark verdict – the largest jury verdict in Vermont history – included $7.75 million in punitive damages to punish the Diocese for its misconduct.

The plaintiff, a Colorado man now in his 40s, alleged that as an altar boy he was fondled multiple times by a priest the church knew was a child molester.

The firm has another 16 cases involving the same priest who was assigned to Vermont parishes in the 1970s, as well as five more cases involving other priests. The next trial is set to start Aug. 13.

During the trial in May, the plaintiff's lawyers tackled juror skepticism head-on. To address the issue of why it took so long for their client to come forward, they showed jurors a photo of him at the age he was when he was assaulted by the priest.

"This helped the jury to understand that he was a young boy, and why he would be afraid to come forward," O'Neill explained. "No child would ever dare make a complaint against a priest. They were seen as being above everyone else."

In addition, their client testified about how hard it was for him to come forward, and how he finally found the courage to speak up when he heard others accuse the same priest of abuse.

The client's wife also testified, and "put a real human face on the issues" her husband has experienced as a result of the abuse, O'Neill said.

O'Neill said he faces the same skepticism in other kinds of cases, particularly soft-tissue injuries in motor vehicle accidents where there is no objective evidence of the injury itself.

Here are a few tips from O'Neill and Evers for dealing with juror skepticism:

• Dress sensibly.

Nothing turns off a juror more than the sight of a flashily dressed lawyer with lots of jewelry.

"Don't show up with your gold pen and Rolex watch," O'Neill advised. "Be a real person. Be closer to the type of person who sits on the jury. The same is true of your client. You have to have your client look appropriate for the occasion. "

• Stick to the facts.

"Don't ask jurors to accept your conclusions," O'Neill said. "Give them the individual facts that lead them to the conclusions.

"For example, instead of saying, 'My client suffered a serious injury and has had a lot of pain,' say: 'My client suffered a fractured left tibia. He was taken to the hospital. He was given [name the drugs] …' Then, describe specifically what he does as he goes through rehabilitation."

The same maxim can be applied when talking about loss of income. So, instead of saying how much your client lost in income because of the accident, simply state what your client was earning before the accident and what he is earning now.

• Cross-examine with respect.

If you're overbearing during your cross-examination, the jury is likely to hold it against you and be more sympathetic to the witness, according to O'Neill.

"You have to gauge carefully how the jury is going to react to how you're treating that witness," he said. "Everyone is entitled to be treated with courtesy and respect."

• Have experts teach, not tell.

The most effective expert witnesses teach the jury about the subject of their testimony. They use good demonstrative exhibits, get out of the witness box and display the exhibits to jurors so they can see what the expert is talking about.

"The worst thing the expert can do is simply state his or her conclusion," O'Neill noted. "The best approach is probably if the expert can create a classroom atmosphere."

• Calculate the incalculable.

Both Evers and O'Neill said comments made during focus group sessions and jury selection can be helpful in uncovering questions jurors have about a particular case. In the priest sex abuse case, for example, one of the main juror concerns seemed to be how to calculate damages for something that happened 30 years earlier.

During closing argument, Evers acknowledged the difficulty of the task and then suggested several methods for determining damages.

One involved per diem damages. There had been undisputed testimony that the client had been molested 40 to 100 times. Evers suggested assigning a dollar value per incident.

The other method was to assign a certain dollar figure per year for each of the years the client has had to deal emotionally with the effects of the abuse. Vermont also allows jurors to add interest for intangible damages.

For punitive damages, Evers suggested a range of $2 million to $4 million for each of three components given to the jury as part of their instructions for determining damages. One aspect was punishment for what happened, another was deterrence and the third component was a "message to the community at large," Evers said.

Both compensatory and punitive damages were within the range suggested by Evers.

• Be human.

Both Evers and O'Neill said that dealing with jurors' suspicions is just part of the landscape these days.

"We're never going to disabuse them about their views that there are too many lawyers and too many lawsuits," Evers said. "You can't fight that. The best you can do is make them understand that this case isn't like all those stereotypical cases they think they know about."

Here, the plaintiff's lawyers applied that strategy throughout the trial.

"As lawyers, we tried to be who we are – human and natural," O'Neill said. "We gave a clear justification for the numbers we were seeking, including a punitive number that would be large enough so that no one would ever think they could do what the Diocese here did – hire a known child molester, move him after he was caught molesting children, protect him as it would no other employee and cover up the abuse until forced by a court to turn over the records in 2002."

Questions or comments can be directed to the writer at: nora.tooher@lawyersusaonline.com