• Make Sure Jurors Understand That You "Get It"
  • November 11, 2010 | Author: Kenneth T. Broda-Bahm
  • Law Firm: Holland & Hart LLP - Denver Office
  • In the wake of November 2nd's Congressional Mid-Term elections, and another change in the party in charge at the House -- widely read as a referendum on President Obama -- the focus of punditry has turned to the question of whether the President "get's it," or not. As President Obama, again, acknowledged America's frustration over a sluggish economy, one commentator after another has raised that question.   In addition to making good political theatre for news junkies, there is also a litigation connection.  We know that clients aren't always perfect, and when a lawsuit is brought about by one bad outcome or another, the defendant is often in the position of acknowledging the tragedy of the situation, including potentially their own mistakes as well, while still defending themselves on liability and damages.  That is a stance that could lead jurors to ask, "Does the defendant really 'get it' in this case?" with the 'it' being an appreciation for the the seriousness of the events, or an understanding that makes unnecessary any potential 'lesson' from the jury.

    When one or more elements of liability are uncontested or obvious, then an apology is often called for.  But when that isn't the case, then there is potentially some middle-ground between defensive denial and abject apology.  Showing the jury that you 'get it' may be that middle ground.

    When we talk about whether a party "get's it" or not, then the "it," is obviously a little vague.  What the jury may expect you to comprehend or appreciate will differ from case to case.  In a medical suit, it could mean that the doctor appreciates the plaintiffs' shock and disappointment, and perhaps even understands their reasons for filing suit.  In a contract case, it could mean that your client shares the frustration of the other party, or even sees how they could be interpreting the contract in an incorrect yet still understandable manner.  In a workplace injury case, it could mean that the employer not only mouths the worn sentiments of "our sympathy for the family..." (a ritual that can often come across as rote, insincere, and self-serving), but goes further to explain how the accident has affected daily life at the work-site and even helped the company to redouble its commitment to safety.

    The common denominator to these ways of "getting it," and perhaps to President Obama's reactions to the recession as well, is demonstrated empathy.  From the perspective of the message recipient, it is nice to know that you aren't at fault, and even nicer to know that you'll be trying harder to avoid situations like this in the future.  But do you have more than just an intellectual understanding of the problem?  

    The specific message that sincerely demonstrates an understanding of the situation will vary depending on the case.  In a workplace accident case, though, it may sound something like this:

    As we have discussed, Mineco is committed to safe operations and has a long history of safe operations.  Nothing the company did or didn't do caused the accident that tragically took Richard Allen's life.  At the same time, the executives of Mineco just wouldnt be human if they said that this death didn't affect them.  It has affected them, deeply, just as it has affected everyone who works at Settleberge mine every day.  This catastrophe has been a huge reminder of the dangers that exist when workers don't follow the company's policies.  And that message has echoed from the executive offices down to the furthest mine-shaft.  The company has reflected on this tragedy, and studied it, and used it as a reason to try even harder to have an accident-free day every single day.  And Rich's photograph is displayed right next to the elevator that workers step into just before they descend into that shaft.  Mineco didn't cause this death, but the death has still sent the message -- The company gets it, and the workers get it too.

    It isn't a complicated idea, but it is an important one.  Jurors will be less motivated to send an additional message when they feel that the party has gotten the message already.  Get it?