By Melissa M. Gomez
Special to the Legal
I was recently asked to be a part of a panel at the ABA’s Forum on Franchising about jury issues. As a part of the presentation, I and the panel members used real-time technology with the presentation. The technology allowed us to ask the 500-member audience multiple choice questions that they could then answer electronically using a dial. We could see (and show the audience) how the audience members answered each question immediately. Pretty cool, huh?
One of the first questions we asked of the audience was whether they agreed with the statement, “Jury issues have nothing to do with my practice.” While many folks in the audience disagreed with the statement, when we broke the data down to see just what the transactional attorneys said separate and apart from the litigation folks, over 70 percent agreed with the statement. Was I surprised? No. Did I have something to say about it? Absolutely.
The fact of the matter is that in commercial cases, jury issues begin with transactional folks. These are the folks who write the contracts that jurors will later interpret. These are the folks that are creating the processes that jurors may later evaluate. These are the folks that approve the messages in the manuals jurors review … shall I continue?
Contracts written in language that jurors find confusing may likely lead jurors to give the benefit of the doubt to the side of the case that did not write it. Manuals that do not contain the warnings recommended by industry standards will cause jurors to question the safety practices of the company. In essence, the failure to consider how transactional issues may later be interpreted by laypeople has led to many a lawsuit, and unfortunately, many a bad trial result.
The walls erected between the transactional and litigation professionals within an organization should be replaced with lines of communication. An ounce of prevention is worth a pound of cure. That prevention is often in the jurisdiction of the transactional attorney, for whom jury issues and layperson interpretation is the farthest thing from the mind as contracts are bring written and manuals are being reviewed. Do jury issues have anything to do with your practice? Absolutely.
Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She can be reached at melissa@mmgjury.com or 215-292-7956.
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