Wenner Evolution by wenner69


Weekend 2011 slides

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									Jury Realism: The Science of Moral Trial Advocacy 	

              James L. Gilbert!
           The Gilbert Law Group!
                Arvada, Co.!
              David A. Wenner !
           Snyder & Wenner P.C.!
                Phoenix, Az!
Using science and intuition to build our cases. !
Over the past 40 years psychological
  science has provided remarkable
insights on how the mind works and
  how people make judgments and

Building the case to fit the juror s model of the
world will be simpler and more effective if we
        understand certain principles.!
The science can teach us how to use our
       intuition more effectively.	

Intuition is knowing without
   knowing how we know!!
Two Types of Thinking !
A bat and ball cost $1.10 in total. The bat costs $1.00
 more than the ball. How much does the ball cost?	

Juror Perceptions 	

Learning to see the invisible!
The Story	





People favor the familiar.	

Jurors compare the defendant to the
prototype. Jurors search for patterns.	

  What acts link the
defendant to the harm?	

Linda is 61 years old single outspoken and
very bright. She majored in philosophy. As
a student, she was deeply concerned with
issues of discrimination and social justice
and also participated in anti-nuclear
demonstrations. Where did Linda go


   Sarah is a college
   senior. She read
fluently at age 4. What
     is her GPA?	

Doctor took an inadequate history.	


Doctor took an inadequate history. Doctor
was at a party the night before.	


The vehicle was unstable making it more likely
to roll in real world driving situations. The
Auto Company says the vehicle was safe.	


The vehicle was unstable making it more likely
to roll in real world driving situations. The
Auto Company says the vehicle was safe.
When asked for its testing data, the company
says it is policy to destroy it.	


The doctor made a surgical error in
performing the operation. The doctor claims
the operation was performed properly.	


The doctor made a surgical error in
performing the operation. The doctor claims
the operation was performed properly. He
did not order a pre-operative imaging study to
evaluate surgical pathology. 	


 What are the features of this defendant
that make jurors think this defendant has
   acted differently than their doctor,
               vehicle etc?	

How would your x have acted in this
    This defines the standard.	

Is it fair to have expected the
Defendant to have acted in this

What shows that d acted knowing his conduct
    created an unjustified risk of harm?	

 What conduct shows the d acted in a self
serving manner that conferred no benefit to

What fact or facts the jurors just not get past?	

Moral Blameworthiness	

Jurors unconsciously
 attend to evidence
about what was in the
  defendant s mind
   when he acted.!
Jurors want to know
   why the harm

Staining the character
  of the defendant.	

To increase moral judgments
jurors must infer a negative
mental state or belief about
what the defendant believed
would or could occur!
So how can we show that the
  defenant’s act was self-
  serving, self-interested,
self-directed rather patient/
     consumer directed?!
  What facts preceding the act shows the
      defendant acted for his benefit ?	


  What acts that shows the defendant was
        more likely to act carelessly?	


   What acts shows the defendant acted
     differently than the careful actor?	


What acts show the defendant knew it was
foreseeable harm could occur and he chose
to proceed in the face of the risk creating a


The Focus!
focus the jurors attention on
the defendant s knowledge that
foreseeable that the harm
would occur and recur and
ignored measures that would
minimize the risk!


The story begins with the first of many
decision to proceed over time with
knowledge of the risk and repeated decisions
not to eliminate the danger.	


We represent the men and women who make up Philip Morris.

Very briefly, this case is about Ms. Cindy Naugle, and the
choices she made. It’s about her choice to start smoking Benson
& Hedges cigarettes when she was a 20-year-old adult in 1968;
it’s about her choice to continue smoking Benson & Hedges
cigarettes for 25 years, until 1993, and it’s about her choice not
to make a sincere motivated effort to quit smoking before she
did quit on February 19, 1993. That was about 16-and-a-half
years ago.

So, why do I say that this case is about the choices Ms. Naugle
made, the choice to smoke, her choice not to quit before, in time
to avoid having gotten sick?

Where do I start the story?	

What is the evidence that will likely lead to

           Prime. Prime. Prime!	

How do I end the

The Cause!
•  Jurors
       compare what actually happens to the
normal case where the injury does not occur.!

•  Jurorsimagine an alternative scenario that
changes some surprising, unusual or abnormal
event. (Counterfactual)!

•  The
     more easily jurors can imagine the
defendant acting differently the more likely
they will link causation.!
    Comparing the
defendant to the norm.	

– Does the conduct interfere with
  the reasonably expected course
  of events?!
    Usual v. unusual!
    Normal v. abnormal!
    Conventional v. unconventional!
–  We should always frame the defendant s conduct
   as an act!
     Acts elicit stronger emotional responses!
       We should frame all of the defendant s conduct
       as an active willful act rather than a passive !
       failure to act!
 He   elected!
 He   chose!
 He   decided!
 He   preferred!
 He   selected!
  The greater the number of options
 available to the defendant, the more
      likely jurors find liability !
  The person upon whom attention is
 focused receives the most criticism.!
   Jurors award more for plaintiffs
where the defendant s alternatives are
    many and readily come to mind.!

Decisions to change the status quo create a higher level
     of responsibility than decisions to do nothing.	

        • 93% Lean	

        • Vs.	

        • 7% Fat	

     Who Should get custody?!

•    Parent A	

                             Parent B	

     •    Average Income	

                  Above-average income	

     •    Average Health	

                  Very close relationship with

     •    Average working hours	

                                             Extremely active social life	

     •    Reasonable rapport with

                           Minor health problems	

     •    Relatively stable social life	

•  If you were a physician advising a patient on
  a form of treatment, you could frame the
  decision about whether to employ that
  treatment in either of the following ways:	

  •  This treatment has a 90% chance of
    saving your life.	

  •  This treatment has a 10% chance of
    failure, resulting in death.	

•  Should frame the jurors task around safety
  or danger?	

Jury has preference for keeping things the way they are!	

People are averse to sticking their necks out and
  setting themselves up for feelings of regret	

 Jurors to Stay
1. Communicate as if jurors believe they feel
safe and do not want lose that!

2. Frame the plaintiff s safety standard as the
norm or status quo!

3. Frame defendant s safety standard as
lowering the safety they already own!

 4. Frame the jurors choice of a defense verdict
as loss of safety !

Frame the alternative safer
choices as the status quo in the


Strength Comparison

People have a tendency to fall in love with what they

People tend to overvalue what belongs to them.	

You demand more for the loss of your health than you would be
willing to pay to obtain it.

How much would someone demand to be willing to accept this harm?

Do not allow jurors to use plaintiffs injured state as the status quo
or starting point in damage calculation.
Framing the injury using the healthy plaintiff as
an anchor requires compensation for the loss of
health, the harm and the loss of choice.!

                  Compare this !
                    to that.!



•    Professional v. Non-professional	

•    One party went to school for years	

•    Reasoned v. Momentary or Split Second	

•    Group v. Individual decision	

•    Cognitive decision v. Emotional decision	

•    They made a decision that the savings would be worth the risk	

•    Year after year they put money in their pocket, this year we have to take
     some money out	

•    One party is damaged for life v. One party received a benefit	

Using jurors desire to
       be just.	

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