In a recent edition of the Legal Beagle Podcast, which is available on YouTube and Anchor, Jonathan Negretti had the good fortune to be joined by Harry Plotkin, one of the best jury consultants in the U.S. Plotkin has picked over 1,000 juries that have delivered more than $500 million in verdicts. Here, he talks about how to get a fair and impartial jury and offers keys to winning a stunning verdict. He even gives a tip or two on how to get out of jury duty! To connect with him, visit YourNextJury.com.
This interview has been condensed and edited for clarity.
Jonathan Negretti: Let’s just start with a basic question: How do you pick a jury?
Harry Plotkin: I think there are two things you have to do when you’re picking a jury.
One of them is that you can’t be afraid to ask probing, tough questions. A lot of lawyers want to get in there and build rapport and be the nicest guy or girl in the courtroom, and have the jurors like them: “Gosh, these jurors are all so nice. I’m just going to keep them!” But you’ve got to ask them the tough questions and make sure that the jurors — even the ones that seem like they’re perfectly nice and reasonable — aren’t going to have some biases.
Number two, you can never let the jurors self-diagnose their biases. You have to ask them open-ended questions about how they feel and be willing to recognize when a juror may not be good for you — even though they tell you a million times, until they’re blue in the face, that they can be fair, follow the law, and have no issues.
Jonathan Negretti: When it comes to challenging a juror for cause — meaning, there’s a bias that they can’t put aside and give you that fair and impartial look at the case — how do you draw that out in a way that doesn’t offend the juror that you’re questioning, but also lets the court know that there is an inherent bias here?
Harry Plotkin: That’s when you’re getting someone off for cause. Obviously, that’s a different story. You got to convince them to self-diagnose their bias in that situation. I think when you start, you never use the word fair. You never try to suggest — especially if you’re on the plaintiff’s side — what bias is and frame what fairness is and what’s not fair on a jury. You can convince them, first of all, to talk about things that aren’t fair. As opposed to “Can you follow the law?” you instead say, “Being honest, who thinks this law doesn’t really seem fair — giving money for things like pain?”
With jurors, you never ask them can. The word that I always like to use is would. “Would you have a hard time following the law?” Jurors aren’t asked to follow the law. They’re asked to enforce the law. If you can frame it in a way that you’re saying, at the end of the day, “Would it be tough to enforce a law that you don’t believe or agree with in the first place?” That makes it a lot easier for jurors to say, “Yeah, that doesn’t seem like something I could or can do.—
There’s a million different ways to go about it, whether if this is a race and we are a step behind, or if the ball’s on the 50 yard line, it’s supposed to be right in the middle of the field, where are we? To me, I think the phrase that works the best is asking jurors, “Am I facing a real uphill battle convincing you to do … whatever it is?” Jurors feel very comfortable telling you, “I can be fair. I’m going to give you a fair shot. I’m going to listen to the evidence.” But you’re facing an uphill battle. When you can get them to quantify that, then you start getting into convincing the judge that this person is not totally impartial.
Jonathan Negretti: Talk to me more about this idea of money, because it is an uncomfortable conversation to have in a courtroom. How do you break down those barriers? How would you tell someone to discuss it freely? Because there are these cases where we’re seeking monetary justice. At the end of the day, that’s what the law allows.
Harry Plotkin: Sure. I mean, you can’t run from it. You can’t avoid asking those questions. And I think you’ve got to look the jury in the eye. The hardest part is to look them in the eye and ask for a lot of money, or tell them in voir dire, you’re going to ask for a lot of money, without them seeing you sweat. But you can’t run from it.
If it’s a case where you want to be up-front about how much you’re asking for, whether you want to give a specific dollar figure, like some lawyers like to do, or suggest generally it’s going to be many millions of dollars, more than a million dollars, or whatever it is. You have to acknowledge them: “I know that’s a lot of money. We know that. But we’re going to be seeking a lot of money for a lot of harm. What are your feelings about that?”
One thing that I always preach that I think is especially important with money in voir dire is a concept that I call “putting jurors on an island,” which means there’s no place to escape. There are no safe answers. If you ask them a yes or no question or a question that has a safe answer, you’ve got to ask them “Can you follow the law when it comes to damages?”
I’ll give you an example. This is one I love to ask about money, setting aside whether or not you think that you can follow the law and be fair about money: “What are your feelings about whether it seems fair and important — or maybe a little bit unfair and unnecessary — to give money for things like pain or mental suffering, or things that aren’t a financial loss?” You force them to give an answer when there are no real safe answers. If they give you a safe answer or they’re cagey, understand that they’re probably being cagey for a reason. Try to push them a little bit: “Well, I understand that, but what are your feelings about whether that seems fair or not fair to you?” When you put them on an island, it’s really hard for jurors to lie when they have to give an answer like that, in an open-ended way. It tells you a lot when they’re cagey, and it tells you a lot when they refuse to answer the question. You just get them talking about just the principle of fairness when it comes to money or whatever issues are in the trial.
Jonathan Negretti: Let’s dive into it right now about what you mean by “pre-habilitating” jurors.
Harry Plotkin: Right. It’s funny, I kind of developed my philosophy over the years, picking so many juries — 35 to 40 a year — and doing a ton more focus groups and talking to jurors. We used to talk about the idea that it’s called jury selection, but it’s really deselection. You’re really just deselecting. You always tell your plaintiff if there’s somebody who’s just this dynamite juror, you always have to tell your plaintiff that person’s not going to be on the jury; the defense is going to strike them. There’s nothing you can do.
But the more and more I’ve been doing this — and especially in the last few years — I’ve realized there are ways to keep your good jurors. When you’ve got a ton of really good jurors and even if you have maybe one or two that aren’t great, you certainly can try to get them on your jury by passing. I don’t know if its quite the same in Arizona as it is here in California. But if you like the first 12 in the box and you say, “Your Honor, we accept the 12 as currently constituted,” you don’t lose your strike if the defense then strikes somebody. Now it’s a different make-up of 12. You still retain your strikes. But pre-habbing jurors, to me, is incredibly important and something I always do in almost every type of case. The better the case, the more I do it.
The way it works is, as plaintiffs, we get to go first. We get to approach jurors, address issues, and frame what bias is. I’ll use a real, simple example. Let’s say it’s a sexual abuse case. If you get up there, the defense is sitting there thinking, “Okay, as soon as I get up there, I’m going to identify every person who’s been a victim of sex abuse. Who has strong feelings about it? Who’s got a relative who’s a victim of sex abuse?” I’m going to say, “Hey, this probably hits too close to home. I mean, you have really strong feelings about this and probably you couldn’t be impartial.” They’re expecting all those people to say, “Yeah, you’re probably right.” Some of them will be crying. Those 12 people on the jury, or sometimes more, I’m going to get them all off for cause.
When you get up there first, and you address that, “Who here has been a victim of sexual abuse? Who here has friends and family has been a victim of sexual abuse? Who here has strong feelings about this issue? Who here has seen a school — say that you’re suing a school district — that really just did not do enough to keep students safe?” And you get all those people and they’ve all talked about it a little bit or at least raised their hand. You don’t have to spend a lot of time on it, you can just get them to raise their hands. And the defense is going, “Okay, they’re doing all my work for me. Here are 15 jurors who I’m going to get off for cause on my checklist.” And you go through each one of them and you say, “Now, having strong feelings or having these experiences doesn’t make you incapable of being fair. In fact, you know you can be perfectly fair.”
And I always tell jurors, “You are allowed to feel sympathy. There is no rule that says you can’t feel sympathy if everybody here is going to feel sympathy. That doesn’t make you an unfair juror. You’re allowed to get angry. If the evidence makes you angry at a defendant, you’re absolutely allowed to get angry at the evidence.”
With all of those folks who told me they’ve had these experiences, you go through one by one and say:
“Has that experience told you that sometimes schools don’t do enough to protect kids?”
“And has that experience basically taught you that when schools do those kind of things, they should be held accountable?”
“Yeah, it has.”
“Perfect. That’s what the law says. So, my only question to you is, ‘Can you wait for the evidence and let the evidence tell you whether you have a reason to be upset at this defendant or not?'”
Most jurors — nine out of 10 — will say, “Yeah, I can do that.”
“You’re not going to just assume that they’re guilty without any evidence, right?”
“No, of course not.”
“If the evidence convinces you that this school did nothing wrong, you’re not going to find against them, anyway. That would that be fair to you?”
“No, of course not.”
“Okay, so you can be totally fair.”
And they can have the strongest feelings in the world. If you can go through one-by-one and basically reframe it and tell them, “You’ve been a victim of sexual abuse, but that doesn’t mean that you are going to just believe this without any evidence?” [Plotkin gestures.] ‘Yeah, yeah, I can be fair.”
As long as you arm them and say, “You’re allowed to feel sympathy and you’re allowed to get angry, but can you wait for the evidence to decide?” they go, “Oh, I get it, okay.”
One thing we talk about a lot is, I hear the complaint that pro-plaintiff jurors are just too honest — that they’re the ones who will always talk their way off the jury and say that they have a bias — and the pro-defense jurors who are the ones who say, “I can be fair.”
When you do this and you arm them with this way of thinking about it, you tend to keep those folks. They kind of go, “Oh, I get it. OK.” And when the defense gets up there, the jury will go, “I’m going to give you a fair shot. But I can tell ya, if the evidence convinces me your school or defendant did something wrong, I’m going to be pissed off. But I’m allowed to feel that way.” And there’s nothing they can say about it.
If the defense tries to say, “Well, if you can’t be fair, you may not keep all of them.” But if there’s 12 of them, and now the defense only gets two of them off, that’s 10 more people. In a state where you only have six peremptories (peremptory challenges), they’re not going to have enough peremptories to get rid of them. And in Arizona, you can convince six of those folks. They’re all on the jury.
That’s an incredibly important skill — I would actually bump it up to probably number one, if you have a good case with good facts. I’m doing that in a case next week against Lyft where, if you’ve had a negative experience with Lyft or a corporation, can you still be fair? Can you wait for the evidence and decide whether you have a reason to be angry or not?
Jonathan Negretti: I love that! That’s gold, Harry! You’re basically saying to the judge, who is really the final decider here, “Hey, look, we asked them to wait for the evidence. We explained that if the evidence does not prove that the plaintiff is more likely than not the prevailing party. If a school district did nothing wrong, you’re not going to find against them, if the evidence shows they did nothing wrong.”
I love that, because they’re going to say, “Yeah, of course. I’m not going to find that if they did something wrong, if the evidence doesn’t show that.”
How is the defense going to try to destroy that potential juror? It’s such a great way of pre-framing the entire jury selection — really putting yourself in a position to keep a lot of those really good jurors who could be advocates for you in that room when they go back and deliberate.
Harry Plotkin: I think one of the things that a defense relies on to get off jurors for cause is, I think they sort of trick jurors by making them think that if they are going to feel sympathy or they’re going to get upset by an issue, that that means that they can’t be fair.
I think there are two critical things you have to say: 1) You have to tell them you are allowed to feel something. The law never says you can’t feel sympathy. You don’t have to leave sympathy at the door, as long as it’s not driving the car. 2.) It’s convincing people that you’re allowed to get upset if the evidence gives you reason to get upset at somebody. You’re allowed to get upset at the plaintiff if you think that they’re lying to you. You’re allowed to respond to the evidence — as long as you’re not reacting to just the accusations, themselves.
Sometimes an analogy they’ll use is, “How many of you folks have strong feelings about murder? Does that mean you couldn’t be a judge in a murder trial? I mean, of course you could!” The question here is not whether or not sexual abuse is okay. The question here is not about whether building a defective product, or running a red light and causing an accident, is okay. The question here is did it happen in this case?
And so, if you tell folks those kind of things, you really get them. I’ve seen it a million times where your really good jurors go — and you can just see it — “Oh, I get it. Okay, I’m here to do justice in this case, but I’m going to be fair.” And it’s true. We just want jurors to be fair. We don’t necessarily want people who are going to just find for us, no matter what. We don’t want to lose those folks who really get pissed off by the wrongdoing that defendants do.
You’re going to lose a couple, probably. There’s are couple who are just going to be too modest or don’t want to be on the jury. The defense can get up there and ask them, “Well, but are you more probably prone to believing accusations than everybody else?” You may have a couple that feel that way. Every juror that you keep that otherwise you would have lost is another strike you’ve taken away from the defense.
Jonathan Negretti: How do you figure out what kind of value a juror may have — one that aligns with the plaintiff?
Harry Plotkin: If there’s some critical thing that your client or the defendant did, and you want to convince jurors that they would have done the opposite — just talking to them about their own experiences or their own approaches and making sure it’s exactly the same. Just re-reminding them of something that later on in the trial they’re going to say, “Oh, that’s what the plaintiff did? I do that all the time.”
There are lot of things that jurors may judge your client unfairly about if you haven’t made them think about it. But if you get them to think about it, they feel differently.
A great example is delay in treatment. This crash happened, they didn’t go to the ER, they waived off medical treatment, and didn’t see a doctor for a month. And now this person has claimed that they have some permanent back injury and they went back to work two days later?
The first impression jurors may have is that seems kind of suspicious. That doesn’t seem right. But you talk to them in voir dire: “How many of you are the types of folks who try to avoid going to the doctor if you notice some issue? And you try to see if it’s going to get better — you may wait a week or more.” You talk to them about it. Eight out of 10 jurors would probably tell “Yeah, I don’t rush to the doctor right away. My family has to drag me.” Does that mean that you didn’t have an injury or pain to begin with? So you talk to them about those things. They think “That’s what I do.” And then when they hear it in trial they go, “Oh, that makes sense.”
In voir dire, if you want to, you can then link it — if a judge allows it. You could say:
“Now one of the things that you’re going to have to decide is whether it meant anything that my client didn’t go see a doctor for three weeks after this crash.”
Anyone is going to think, “Gosh, if he didn’t, then that must mean he wasn’t hurt?” Only if you’ve already talked to them about their approach, do they say, “Oh, that’s the same thing with going back to a job.”
“How many of you have ever gone to work when you were sick or in pain and just toughed it out?”
“Yeah, I do that all the time. Of course.”
“Well, one of the things you’re going to hear is, ‘My client continued to work after this accident.’ He’s going to tell you it’s because he felt like he had to keep working and tough it out. Is anyone going to think, Gosh, if he went back to work, he can’t be that hurt?“
Once you kind a made them think about their own experiences, then they realize they’re not going to hold that against him.
Those are the kind of things I’m talking about — pre-conditioning them with their own lives. Doing it theoretically doesn’t really work. Jurors think they’re being manipulated. But if you talk to them about what they do, obviously, there’s no better way to convince them than to convince them with themselves.
Jonathan Negretti: Harry, you’ve worked with some of the best attorneys in the country. You’ve had stunning verdicts returned on the cases that you’ve consulted on. Boil it down to one thing. What’s the one thing — that consistency among all of that — that helps to create these, these outcomes?
Harry Plotkin: That’s a great question. I always say that there are four things that really matter in terms of success in trial. They all matter, but there’s an order of importance to them.
No. 4 is how is, basically, how likeable your plaintiff is. How trustworthy are they?
No. 3 are the facts. This is what surprises people. If you have great facts and maybe a lousy plaintiff, you’re usually going to win that case. I’d rather have good facts and an imperfect plaintiff than the best plaintiff in the world and some not-so-great facts.
No. 2 is the quality of the attorney.
No. 1 is the quality of your jury. If you have a lousy jury that just doesn’t like lawsuits and is not receptive — you could have the best lawyer in the world, the best facts, the best plaintiff — it doesn’t matter, you’re not going anywhere. It’s dead on arrival if you have a bad jury.
Jury selection is so important. In every case that has gone really well, we’ve had at least a receptive jury.
But I think the quality of the lawyer is underrated. I would rather go to trial and, and bet on a case with a really terrific lawyer with some challenging facts than an inexperienced lawyer or a lawyer who’s not that great with the best facts in the world. The reason for that I think is that credibility is so important. Credibility of the lawyer is so critically important.
There are a million ways to try a case. There’s no one style that works. Here in California, there are so many great lawyers with so many different styles. Nick Rowley has an amazing style that’s totally different than the style of someone like Gary Dordick or Ricardo Echeverria here in California. There’s no one style that works. But, the one thing that I think is consistent is their ability to build credibility with the jury. To be honest with the jury. To come across as reasonable even when they’re asking for a lot. I think that’s something that you just can’t replace.
The amazing thing to me about trial lawyers and plaintiff trial lawyers is that you could have the greatest reputation and track record in the world, but you have to bring it each and every time. Every time you get in front of a new jury, you’re starting from scratch. It doesn’t matter what you’ve done in the past. You can’t ever rest on your laurels. You’ve got to do it each and every time. You can’t mail it in. And so, I think the most important part is just that building credibility from the beginning. If you have a lawyer who knows how to do that, that’s the most important thing.
Jonathan Negretti: How do you be yourself and build credibility? What would you tell young attorneys who are not like the guys you mentioned, but they want to go to trial, to help their clients. But they may not how to “be me” in that courtroom?
Harry Plotkin: I always tell them you got to be yourself. You’re never going to be able to copy some of these other lawyers. You should never try, because it’s not going to come across as genuine.
You just have to find out. You have to, first of all, be yourself and then figure out, as you go through and practice, how to be the best version of yourself. Are you really emotional? Are you really factual? Whatever you are, whatever your style is, jurors can sense when someone’s being genuine and when someone’s being reasonable. You have to find out opportunities early on in the case, whether it’s from the very beginning in jury selection, in opening, to show them that you were reasonable. Some of those things include like ways to show them that you’re trying to be fair. It may be convincing a juror who is biased for you that you don’t want them — instead of trying to scramble to rehabilitate them and keep them on the jury and say, “It sounds like given your experience that you really wouldn’t be fair to the other side.” Letting them go is one thing to build a ton of credibility with the jury.
Not arguing with the jurors in jury selection, and not pushing anything on them in jury selection, really builds a lot of credibility. They expect lawyers from the get-go to be manipulative and tell them what to think. If you don’t do that, you’re just listening to them — and thanking the bad jurors who hate lawsuits — that builds credibility. When your opening statement finds ways to tell the story, framing it carefully, but never telling jurors what to believe before they’ve come to that conclusion.
The best way to destroy your credibility is to get up there and basically say, “This defendant is a liar and irresponsible.” The juror will be going, “Whoa, you can’t tell me to think that!”
I would say find your style. You don’t have to be loud. You don’t have to be persuasive in an obvious way. I think actually doing that could be to your detriment. You need to find ways to be reasonable and show your jurors that you’re listening to them.
I think showing your jurors in voir dire in an opening statement that you understand what the other side is saying, and you understand the weaknesses of your case, and you’re talking about them with them. That shows them “This person’s reasonable.”
If you find every opportunity to build credibility and show them that you’re focused on what the truth is — you just want a fair jury and a fair result — “Here’s why our case should prevail, even though there are issues with the case.” There is no one specific way to do it. Find opportunities to show them you’re reasonable. And always be yourself. Don’t ever copy somebody else, because that’s always going to come across as disingenuous.