Thoughts And Observations From Magna’s Battle Of The Experts Shadow Jury

Ross Suter, Vice President Litigation Solutions

It’s not often that attorneys get the opportunity to “pull back the curtain” and see how jurors analyze what they do at trial. Magna’s recent conference, “Battle of the Experts,” provided participants and attendees just that opportunity. Pitting seasoned litigators against technical experts in a cross-examination format, conference attendees were able to listen to a mock jury comprised of eligible individuals from Miami, “the Shadow Jury,” provide their thoughts and interpretations of the cross, as well as how Shadow Jurors interpreted what was happening. Below are a few of the takeaways from the program. But first, some background…
– Ross Suter, Vice President Litigation Solutions

Shadow Jurors were provided with the background for the four cases that the attorneys and experts were referencing. The first case pitted a casino’s frequent customer against the casino. The customer claimed that the casino was negligent in their failure to have proper security, in their failure to properly provide the assistance they originally promised, and in aiding and abetting in his false arrest, causing him both monetary and reputational damage. The issues become, in the expert’s opinion: (1) what is proper security and (2) did the casino provide such to its patron.

The second case presented the question: How does one determine who the driver was, when a severe accident caused death to one passenger and injury to all of the other occupants. Physical evidence did not provide the answer and it was up to an accident reconstructionist to determine who the driver was.

The third case involved an explosion and fire at a popular restaurant, Meow-Ming, situated between Smell-No More pet grooming salon and Kohl’s department store on Strip-Mall Road. A large explosion and fire ripped through the mechanical room behind the restaurant. A fire ensued activating the fire sprinklers. The water flow from the fire sprinklers continued to flow for 45 minutes after the incident causing extensive damage to merchandise at the Kohl’s department store. The building owner settled with Kohl’s and was suing Smell-No-More and a local HVAC contractor.

The fourth and final case involved a semi-truck accident near the Florida-Georgia state line that killed a mother and her newborn child. The case hinges on expert testimony of the trucking company which disputes that the driver was distracted by the use of his cell phone at the time of the crash.

TAKEAWAYS

 

  • Visuals were seen as helpful. Several times Shadow Jurors commented that it would have been good or helpful to see some of the things being discussed in order to make a better, more informed, decision. Visuals are shown to help shape people’s perception and interpretation of the evidence.
  • Context: Jurors wanted as much context as possible in regard to how all the pieces of the puzzle fit together. How a witness’s testimony related to another piece of evidence. Or how to define terms with which they might not be familiar. How the language of the instructions on applicable law relate and are defined. The more context they were provided, the better they felt they understood.
  • Experts: When it came to the experts, most jurors felt that experience in the topic area was most important. They preferred to see someone who had actually done the work and placed a higher weight on that factor than credentials or where they were from. Overall, jurors felt positively towards an expert who provided services for the defense and plaintiffs. However, there were a fraction of jurors who felt it was not necessarily a bad thing to work predominantly for one side if the expert found they “worked better” with one side versus the other.
  • Jurors also spoke of liking to have the question that they are to answer defined early. “What are the issues?” “Why are we here?” Juror expressed that providing some framework as early as possible for them to make an educated decision was extremely helpful.
  • Paid experts? This was not seen as a negative. As discussed above, jurors set that aside and evaluated the experts on what they said and what experience they had in or on the subject matter.
  • Videotaping of Witnesses: Jurors expressed an openness to videotaped testimony. They had a mindset that watching a video versus live testimony would not change their ability to listen and be fair. I would point out that there was some confusion where jurors expressed concerns that there could be “several takes” before the video they got to see was finished. Therefore, the videotaped deposition process may be something to address with jurors.

 

 

As it was noted to me afterwards by one corporate counsel; the most important thing to a litigator is “what do the jurors think.” It is always interesting to see just how quickly jurors form opinions. Only provided short vignettes of the case and a short bit of testimony, jurors made quick hypotheses, and in most instances, decisions based upon limited information.