By Melissa M. Gomez
Special to the Legal
In my experience with injury cases, I have seen an all-too-common error of plaintiffs counsel in jury trials. The error is an over-emphasis on sympathy in an effort to accelerate damages. I remember one such example of a horrible case involving the death of a child. For the first two days of trial, plaintiffs counsel put family member after family member on the stand, talking about the horrendous accident at issue in the case and its impact on the child’s family. By the end of those two days, everyone in the courtroom, especially the jurors, were emotionally drained. The problem for the plaintiff was that no one yet understood why this was the defendant’s fault. Sympathy for the plaintiff was high. The verdict was for the defense.
Sympathy is a natural emotion and a powerful one. The problem is that when sympathy is overplayed, jurors feel manipulated and they become angry at whoever is making them feel so terrible. Despite the defense mantra “beware of the crying juror,” I have seen jurors in mock trials weep at the case story and then become strong advocates for the defense. Unfortunately for defendants, there is not much to be done in a case like the one above to mitigate sympathy except to accept and join with it. Rather, remind jurors that the plaintiff’s burden is not to prove how horrible the injuries are, but to provide the proof that will cause those jurors to look at the defendant and be able to say: “You caused this.”
The power of the sympathetic aspect of the case is in the hands of the plaintiff and it is a dangerous power to control. There is a balance between presenting the full story of the plaintiff’s injuries and turning jurors off by playing too strongly on emotion. It is more powerful to pepper the damage information with liability witnesses so jurors make a real connection between what happened and who is to blame. Sympathy can be a great asset to a plaintiff’s case, but if it becomes the focus, it can harm your case, being perceived as a smokescreen for a weak liability story.
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 has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.
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