|
To view the first 9 pages, read below:
Juror biases, juror questions for counsel,
thematic options, most important witnesses, arguing damages, and recommended
voir dire
by Karen Lisko
Excerpted from forthcoming
(2nd quarter 2010) Proven
Jury Arguments and Evidence
Chapter: Breach of Contract Litigation
Breach of contract cases may well involve paper (to which
jurors pay close attention), but the bigger part of the case for them
typically centers on the relationships between the parties. For jurors,
these cases are far less about breach of contract and far more about breach
of trust.
I.
Jury Preconceptions in Breach of Contract Litigation
§x:xx Key Juror Biases in Breach of
Contract Cases
Regardless of the venue where a breach of contract case is
seated, jurors share in common many biases in this type of litigation. These
biases have been borne out through post-trial interviews with actual jurors
in breach of contract cases, in privately-funded mock trial research, and
through a review of the academic literature.
Juror Bias One:
If it isn’t in writing, the plaintiff is in trouble.
Cases abound where the plaintiff alleges breach based on the verbal context
surrounding written contract language. However, when a written
contract exists in some form, jurors tend to fault the plaintiff for having
failed to get more in writing before entering the agreement.
Juror Bias Two:
Even when breach of contract cases involve a little guy
versus a big company, jurors still focus on the sophistication of both
parties. Most jurors assume a company comes to the bargaining
table with greater sophistication than an individual. However, two things
affect plaintiffs’ seemingly clear-cut chances to prevail in a David and
Goliath fight. First, if jurors conclude that David is sophisticated, they
will escalate their expectations of the plaintiff to have acted in a more
informed manner. Second, our research has found that because so much
anti-corporate bias permeates present-day society, jurors expect the
plaintiff to take more responsibility and to act with greater caution in
dealing with the company, rather than trusting that terms will be correctly
interpreted after the fact.
Juror Bias Three:
Jurors make sense of what they believe happened in a case
by finding a coherent story to make sense of the evidence they find to be
most important. If you do not provide enough of a coherent or compelling
story, jurors will create one for you (or for your opponent, depending on
which evidence they attach themselves to). Certain jurors will use
deliberations as a forum for “reenacting” the story of what happened, either
through examples from their own lives or through piecing together the
incomplete facts of the case in a way potentially unintended by either
party.
Juror Bias Four:
Since ambiguous language in a contract is often the
cornerstone of the dispute, jurors frequently look at other parts of the
contract to make sense of the disputed terms. Given that tendency,
jurors often resent counsel who try to focus their attention exclusively
upon the language in dispute. Many want the opportunity to review the
larger contract to put the more specific language in context. Some
will use contract language where neither side focused on to make sense of
the case.
Juror Bias Five:
Jurors’ own practices in reading contracts translate
directly to their views of the contract in dispute. Our private research
has found that jurors who read contracts word for word in their own lives
tend to favor the defense. Jurors who skim contracts for meaning or
who habitually sign contracts without reading them tend to favor plaintiffs
in these kinds of disputes. The logic behind this pattern rests with the
fact that detail-oriented jurors are less comfortable accepting subjective
interpretations of concrete language. Jurors who skim contracts or who sign
contracts without reading them often look more for the spirit in which the
contract terms were reached, holding the plaintiff to less of a burden to
have negotiated language for every contingency.
Juror Bias Six:
Jurors typically rely first on their own common sense
view of language before turning to the paid experts’ interpretations.
The jury is comprised of contract experts with varying levels of
experience. Virtually every juror has signed a contract, ranging from a DVD
rental agreement to a sophisticated business transaction. Contract
jurors’ deliberations tend to focus on their common sense interpretations of
the language. They then tend to match the fact witnesses’ and
experts’ conclusions to their own.
Juror Bias Seven:
When no written contract exists and breach of oral
contract is asserted, jurors are keenly interested in third-party accounts
of the intent of the contract, given the self-serving motives of the
parties. Eyewitnesses in breach of contract cases are
especially persuasive when they give detailed testimony about what they
heard in contract negotiations.
Irrespective of litigation type, eyewitness testimony is typically quite
powerful with jurors.
Many jurors are prone to finding eyewitness testimony to be more accurate
than it actually is (even when evidence exists to undermine that accuracy).
That propensity to place great weight on eyewitness accounts largely stems
from two factors jurors have relayed to us in post-verdict interviews.
First, jurors are hungry to hear the account of the misconduct from a
neutral party – much like a tie-breaker. Second, they want to be able
to merge a contemporaneous account with an after-the-fact reconstruction.
Juror Bias Eight:
Jurors can be influenced by simple word choices
within oral argument or witness testimony. Jurors take notice of
the language counsel and witnesses use when speaking. The more tentative or
equivocal the language, the more jurors doubt the credibility of the
speaker. The more powerful and definitive the language, the more
jurors believe the presenter.
§x:xx Jurors’ Key Questions in Breach of
Contract Cases
Once jurors start hearing about the case, they tend to have
repetitive questions that are critical for counsel to answer. Of
course, in many instances, the answers to those questions are inadmissible.
Despite that fact, if these questions never get satisfactorily answered
during trial, jurors have been known to send the question to the judge for
clarification during deliberations and/or to fill in the gaps on their own –
even if the issue was ruled inadmissible.
Jury Question: How did the two
parties first meet? What led the parties to enter contract discussions
in the first place?
Jury Question: Do earlier drafts
of the contract exist to help demonstrate the evolving logic of the parties
in reaching the ultimate contract terms?
Jury Question: Did either party
have the option to include more specific contract terminology? If so,
why did that party/those parties fail to add clarifying language or
additional terms?
Jury Question: Did either party
enter into prior similar written agreements with others?
Jury Question: Did the parties
have prior agreements with one another, either verbally or in writing?
Jury Question: What kind of
educational or training background do the parties have that would position
them to know something about entering agreements with companies?
Jury Question: What is the
industry standard for use of contracts in this situation?
Jury Question: Are there parts of
the contract that contradict other parts?
Jury Question: How much time did
the parties spend negotiating the contract terms? Who was involved in the
negotiations?
Jury Question: To what extent did
either party employ an attorney during the contract negotiations?
Jury Question: Which side
initiated the first contract draft? Upon what did the party base that first
draft?
Jury Question: Were any
individuals (other than the disputing parties) privy to the details of the
contract negotiations?
Jury Question: Were any
individuals (other than the disputing parties) privy to the details of the
contract dispute?
Jury Question: What story do
internal e-mails or documents tell to bolster the parties’ claims about the
intent of the contract or the method of negotiation?
Jury Question: What verbal
exchanges occurred during contract negotiations regarding the intent of the
contract or contingencies if the contract terms were not met?
Jury Question: What has the
interpersonal relationship been like between the parties? To what
degree has that relationship contributed to the dispute at hand?
Jury Question: What respective
power did the parties have in negotiating the terms of the contract?
Jury Question: What options did
either party have to avoid entering an agreement at all and to instead enter
an agreement with someone else?
Jury Question: When did the
relationship between the two parties first start to sour? Did a
turning point occur where one or both parties decided the relationship was
no longer salvageable?
Jury Question: How, if at all, did
the parties try to work out their dispute prior to entering into litigation?
Jury Question: Aside from money,
what does the claimant hope to gain from the litigation?
II.
Case Fact Pattern: CompuGo v SoftThinx
The remainder of this chapter will draw from the following
(fictitious) fact pattern.
Two companies – CompuGo and SoftThinx -- enter a business
agreement involving high-quality color photocopy services. The
contract terms address costs involved with the yearly number of copies that
might be purchased. In addition to its existing “preferred provider”
arrangement, CompuGo provides photocopies at a substantial (retroactive)
discount when SoftThinx’s annual demand “exceeds approximately 500,000
copies a year.” The parties stipulate to the fact that they inserted
the word “approximately” after much debate, to allow a little “give” if the
copies totaled slightly less than 500,000.
In Year One of the contract, SoftThinx falls short of the 500,000 copies,
buying 481,000 instead. At that point, CompuGo writes SoftThinx a memo
stating that they do not technically consider a shortage of 19,000 copies to
be small enough to fit within the window of “approximately 500,000.”
Still, CompuGo extends them the deep discount they would have earned had
they bought 500,000 copies.
In Year Two, SoftThinx again falls short of the 500,000 copies, this time
buying 487,500. However, SoftThinx argues that it would have achieved
in excess of 500,000 in Year Two if not for the fact that CompuGo had to
refer out a rush job of SoftThinx’s annual report to another provider late
in the year. CompuGo arranged for the outsourcing, but SoftThinx paid that
second provider directly for the annual report copies. (The contract
terms addressed the fact that CompuGo might occasionally have to refer work
out, but did not address volume discount contingencies or credit for such an
occurrence.) In addition, SoftThinx argues that CompuGo’s forgiveness
of its 500,000 copy requirement in Year One set the precedent that SoftThinx
could have a similar window of relief if it fell short in Year Two.
CompuGo argues that its verbal discussions during initial contract
negotiations focused on the idea that no more than “a few thousand copies
shy of 500,000” would be forgiven for the discount. They defend their
forgiveness of SoftThinx’s shortfall in Year One as an exception, not a
precedent.
After CompuGo invoices SoftThinx at the end of the year without any
discount, SoftThinx decides to pay its last invoice in Year Two at the rate
by which it would have been charged had it retroactively received the
discount for the year’s copies. CompuGo sues SoftThinx for what it says it
is owed.
III. Opening
Statements
§x:xx Persuasive Elements in Plaintiff’s
Breach of Contract Case
During your oral argument, make strategic use of the
questions typically on jurors’ minds in breach of contract cases (see
§x:xx).
-
Most jurors’ first wish will be to see the contract.
However, that desire does not mean you should start your argument
with paper. Consider how much context is first necessary to
explain the intent of the contract. Introduce the contract in the
story once jurors have enough background to like your client and
to believe the plaintiff was reasonable in its contract negotiations.
Accomplishing that task takes more than a cursory, topical introduction
to the parties at the beginning of your opening (as so many openings
default to doing).
-
The tougher audience on your jury – defense-oriented
jurors – will scrutinize the contract language. Those jurors will
want to hear you explain why your interpretation of the contract
language is more logical than the defendant’s. Focus on the
contract language and its interpretation, relying on the “common sense”
interpretation of the terms before turning to a legal interpretation.
-
Your “ally audience” on the jury – plaintiff-oriented
jurors -- will want to know more about the evolving relationship between
the parties. They will be especially interested in understanding
how the parties emotionally reacted to certain events or conversations.
Jurors tend to trust a party’s reactions more than his cerebral
explanations of the events.
-
Avoid the temptation to start your argument by
immediately placing blame on the defendant. Jurors can resist being
persuaded by later arguments if they feel turned off to your first
attack. Social niceties toward the opposing party (where possible)
go a long way with jurors.
-
Focus first on your client’s enthusiasm about entering
the contract. Jurors need to experience the contrast between the
plaintiff’s sincere energy and the demise of the relationship due to the
defendant’s failings.
-
Determine through whose “primary eyes” you will tell the
story. Will it be through the plaintiff? Through a strong eyewitness who
can serve as an independent third party? Through the defendant?
Start your story from this person’s vantage point. Often, litigators
default to having the head of the company take that role, even if he had
little to do with direct negotiations. Doing so is a mistake. True,
jurors want and need to hear from the top dog, but it is better to start
with and showcase the witness with the most intimate knowledge of the
contract negotiations.
-
Tell your story in the present tense. For
the greatest persuasive impact, get jurors to picture the events as they
unfold by telling the story as if it is just now occurring. (See
the case fact pattern, above, as an example of story telling in the
present tense.)
-
Determine where the story begins. It may not
always make sense to tell the story from a chronological standpoint.
For example, it might start with plaintiff’s kind exception at the end
of Year One to contrast with defendant’s abuse of the exception by
turning it into precedent at the end of Year Two. It is better for
plaintiff to take this challenge on right away rather than leaving it
for the defense to exploit.
-
Admit “safe fault” on the part of the plaintiff if you
feel you have a low chance of being found at zero-percent fault. “Safe
fault” is an admission of a small error that falls short of admitting
liability. (Sometimes mock trial research is necessary to
determine if your threshold for “safe fault” mirrors that of jurors.)
For example, you might admit that making the exception in
Year One contributed to defendant’s abuse of the contract (but an
agreement is still an agreement and defendants owe in full). Of
course, some risk exists in using this approach, most notably if
plaintiff’s counsel admits that CompuGo told SoftThinx that it would
only use the contract as a guidepost rather than a “hard and fast”
standard for minimum purchases. However, we have frequently
found that counsel’s brief admission of some fault persuades jurors that
the plaintiff is being reasonable in its case. Jurors tend to be
suspicious of a party that represents itself as completely blameless.
-
Always time your case “zingers” to emphasize the
defendant’s fault. In this case, assume the CEO of the defendant,
SoftThinx, verbally told CompuGo during contract negotiations (and as
verified by an eyewitness) that she interpreted approximately to be
within a “few hundred to a thousand” copies of 500,000. Jurors are
often persuaded by the unexpected. If you emphasize this important
information too early or too frequently, it will lose its persuasive
impact.
-
Pepper rhetorical questions throughout your argument.
Doing so will challenge the jury to stay engaged since you are asking
them to mentally address your questions as you stand before them.
Additionally, it is likely that conclusions jurors draw on their own are
stronger than ones you draw for them. Rhetorical questions allow
them to get there ahead of you – even if only by a matter of seconds if
you then answer the question in your oral argument. Such
rhetorical questions might include:
Question:
Would it not seem that CompuGo’s warning at the end of Year One would be a
heads-up to SoftThinx that they got a nice deal, but not a contractual
change?
Question:
What should we make of the fact that SoftThinx’s CEO admitted she understood
“approximately” to mean “within a few hundred to a thousand” copies of
500,000?
§x:xx Persuasive Elements in Defendant’s
Breach of Contract Case
It is wise to start thinking about approaches to your case
through the initial filter of jurors’ priorities in breach of contract
cases. See §x:xx, Key Jury Biases in Breach of Contract Cases; §x:xx
Jurors’ Key Questions in Breach of Contract Cases.
-
As the defendant, you need to determine how you want to
either...
(continued in pamphlet)
| 