In the November 21, 2024 edition of
Division 1's Toolbox Talk Series, John
Jerry Glas discussed how construction lawyers should adjust their trial
strategies in response to shifts in juror attitudes. Glas believes that jurors have changed in the
last twenty years, with modern jurors being more reluctant than ever to be seen
as a lawyer’s puppet. Instead, they
simply want a lawyer to help them organize and wade through evidence without
spinning it and without spoon-feeding it.
Essentially, Glas believes that lawyers achieve better jury trial
results if they acknowledge the paradigm shift in jury psychology and reinvent themselves
in response by influencing jury deliberations without directly telling a jury
what to do. Glas refers to this as the “Waiter
Pivot” and recently published a book on the
topic.
Throughout his presentation, Glas discussed how construction lawyers can embrace the Waiter Pivot throughout a jury trial:
- Voir Dire: Lawyers make their first impressions on a jury during voir dire. As such, lawyers should avoid questions that make jurors feel judged or stereotyped. Instead, give the jurors credit and make use of the opportunity to begin framing their case. For example, Glas once repeated the word “specifications” or “specs” in every question during voir dire where his product liability case turned on whether or not the product deviated from specifications.
- Opening Statements: No elaborate themes, no clever lines. Instead, quickly answer the juror’s question about which side is being unreasonable, because jurors know that most cases settle if the parties are reasonable. Focus on why the jury is here and what is actually in dispute. Do your best to highlight the facts that you will bring to the jurors so they can make an informed decision.
- Evidence: Rather than challenge all evidence that the opposing side presents, use an “anchor” approach to zoom in on what the jury should be focusing on. Although construction cases are almost always document intensive, this approach will still allow you to limit the number of exhibits and keep the jury’s focus on the most important facts and documents. For example, the anchor can be a drawing set, a period of time, specific as-built conditions, or a specific cause of delay to the critical path. Where a case includes multiple claims, you may have multiple anchors.
- Objections: Glas recommends pivoting from focusing your objections on “opposing counsel” to focusing on the record. Jurors will respond better if you are an educator rather than an adversary whenever possible. When opposing counsel misinterprets records, explain how the records should be interpreted rather than painting opposing counsel as misleading the jury. Jurors are smart enough to understand and will appreciate the approach.
- Direct of Experts: Glas cautions against presenting your expert in a manner that they may be seen as a hired gun or bobblehead. Most construction cases require expert testimony and your expert needs to be seen as a credible source, not as a salesperson. Lawyers need to give experts the opportunity to teach or explain rather than being led to the lawyer’s preferred conclusion. Pragmatically, this may mean asking broad questions, asking questions that are not formulated precisely so that they expert can correct you, or instructing your expert to be just as antagonistic to you as they are to your opposing counsel.
- Cross-examining experts: Glas believes an effective cross-examination focuses more on “pinning than punching,” which means confirming that the testimony you wish to challenge is accurate, but using your own expert to refute it. This strategy works well because experts are educated and have a good idea of what you will ask. Rather than giving them an opportunity to explain their way out of problematic statements/opinions, you can simply have them confirm the opinion and then use your own expert to explain why it is wrong.
- Closing Argument: Treat the closing statement as if you are deliberating with the jury. Discuss all of the evidence presented and give them a range, not a number, of how they should rule based on that evidence (they need discretion). It also helps to identify a turning point of the trial, typically when a certain witness offered specific testimony or made a key admission.
Glas covered a lot of grounds
in the Toolbox Talk, with the above summary only serving as the general starting
point for his “Waiter Pivot.” Thank you
to John Jerry Glas for the thought-provoking presentation on changes in juror psychology
and how we should adjust our approach in response.
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