No two plaintiffs are alike, and neither is the sympathy two plaintiffs will generate from jurors hearing their individual stories in a case. Which plaintiffs do jurors have sympathy for? What affects juror sympathy for a plaintiff? What is the best way to identify jurors who may be more sympathetic? In this post, we explore when jurors will find a plaintiff sympathetic and more based on what jurors have told us during our years of conducting hundreds of mock trials and post-trial interviews.
What Triggers Juror Sympathy?
The answer greatly varies and depends on a number of factors. The most prominent of these variables are the type of case (e.g., product liability versus patent infringement) and the type of plaintiff (e.g., individual, class, corporation).
For instance, jurors will be more sympathetic to the plight of a plaintiff who claims to have been permanently injured or to have died as a result of a product malfunctioning than they will be to a plaintiff corporation who claims to have been financially compromised when their patent was infringed upon. In our experience, with civil cases in particular, jurors feel more sympathetic in product liability cases where the plaintiff has been injured in significant, life-altering ways (e.g., lost ability to function normally, like a quadriplegic). Additionally, jurors are particularly sympathetic in child injury cases. Indeed, every person on your panel will have some personal experience with children – either being a child themselves, being a parent, an aunt, etc.
A plaintiff doesn’t need to show only physical injury to engender a strong sympathetic response from jurors. Those who can demonstrate a financial loss (individually or as a class) as a result of alleged fraud perpetrated by the defendant can also evoke powerful sympathy among jurors. We have conducted numerous mock trials where the plaintiffs are claiming to have lost their life savings/retirement funds as a result of an investment decision, or at the hands of the fund’s management. These are very compelling cases among jurors as losing one’s hard-earned retirement savings and having to start all over is unimaginable.
So, understanding that, the answer to whether jurors will find a plaintiff sympathetic (be it physically or financially) is a resounding “yes.” For a corporate plaintiff in a commercial or patent case, however, the answer is “no.” While jurors will understand the corporate plaintiff’s claims (e.g., the corporate defendant “stole” their intellectual property or breached their agreement), sympathy for the corporate plaintiff isn’t the primary driver for their decisions and, as a result, need not be a strategic factor to consider.
How Can Defendants Overcome Juror Sympathy for a Plaintiff?
To answer this question, we often advise our clients to embrace the sympathy. Do not avoid directly acknowledging the unfortunate reality faced by the plaintiff or it will quickly become the elephant in the room. Recognizing the plaintiff’s reality or struggle will humanize you and help you connect with jurors. After all, you wouldn’t be human if you weren’t to some degree sympathetic?
Plaintiff jurors, however, often look for an outlet for those emotions, searching for someone to blame for the plaintiff’s circumstance. Clearly outlining alternative causation, including personal responsibility (or parental responsibility) when appropriate, can help sympathetic plaintiff jurors try to focus on other, more likely causes of the plaintiff’s situation.
Sending both the message that the defendant shares sympathy for the plaintiff’s plight, but that the other, substantial causes of the damages should garner the blame can help re-align jurors’ desire to repair a plaintiff out of sheer sympathy.
Research Jurors’ Social Media to Strike from the Jury Panel Those Most Sympathetic
Litigation Insights, whenever possible, conducts social networking research on jurors before (or during) voir dire to gather a more well-rounded perspective on jurors’ attitudes and experiences that may affect the way they view the case, including their proclivity for sympathy toward a plaintiff.
These social searches offer insights about jurors and at times can provide information about jurors’ sympathies that the juror didn’t offer during voir dire. For example, has the juror been expressing sympathy on one or more websites or Facebook regarding obituaries, friends’ illnesses or even pet rescue sites? Has the juror posted a series of emotional status updates on Facebook, indicating life hardships and a distraught disposition? Has the juror been a plaintiff in another case or had several big, negative life events befall them?
One recent example of a potentially emotional juror was a litany of Facebook updates describing her long-term health struggles, a seemingly difficult relationship with her child’s father, and a photo of a tree that fell on her car (her only mode of transportation). Given the sheer number of negative events in her life at that time, it was natural to conclude that she would likely have sympathy for a plaintiff who also would complain about severe, negative life events.
Teach the Jury Instruction: Sympathy Cannot Be a Factor in Jurors’ Verdict Decisions
Additionally, we advise our clients to take the opportunity to thoroughly educate the jurors on the jury instructions. Make sure that jurors understand that judgments cannot be based on sympathy, but instead need to be based on the evidence provided by both parties. Moreover, thoroughly educating the panel will help empower defense jurors to remind others during deliberations that they cannot be swayed by their sympathy for the plaintiff.
The importance of educating jurors on the jury instructions cannot be overstated. It should be made abundantly clear to jurors that, although we each have sympathy (and, even for some, empathy) for the plaintiff, this cannot be factored into their decision-making.
At the end of the day, jurors will, to some degree, feel sympathy for the plaintiff. The level of sympathy jurors have will largely depend on the type of case and plaintiff. The best way to manage this sympathy is to acknowledge the plaintiff’s struggle almost immediately. Recognizing and embracing sympathy for the plaintiff is not an admission of guilt, but instead a reaffirmation that you are human and appreciate the misfortune of others. Identifying jurors who may connect with the plaintiff’s plight and developing evidence and arguments to focus jurors’ attention away from the sympathy are two strategies to help moderate jurors’ feelings of sympathy.
Still have questions regarding the subject of juror sympathy? Need professional assistance for your upcoming trial? Contact us here to start the conversation.
By: John Wilinski, M.A. – Consultant