by: Dr. Ken Broda Bahm
Faced with conflicting testimony in a fictionalized construction case, a recent Denver mock jury had to decide whether it was more likely that an owner created unworkable conditions, or that a contractor had dropped the ball. Their answer — that the contractor had indeed dropped the ball — was buttressed not so much by the factual timeline or by expert testimony, but by jurors filling in the gaps with illustrations drawn from their own lives. “In my personal and professional experience,” one juror opined, “contractors will commit to a date but they never meet it. They commit to a budget amount but they never meet it, it always goes over. I think that is just the nature of the beast…” As it turned out, there was nothing terribly individual about that experience. Other jurors quickly chimed in with stories about unreliable plumbers, arrogant electricians, and careless carpenters. In short, nearly every juror had at least one experience involving a contractor who failed to meet expectations. Particularly in construction cases, but more broadly in any case involving a service provider relationship, jurors can’t help bringing in their own individual experiences as a consumer.
Based on the consumer-society we live in, perhaps that is no surprise. The average juror’s main experience outside the workplace and family is as a consumer. As advertisers know, selling is not so much the act of giving reasons as it is the act of “cuing” positive or negative associations and applying these associations to a given action. And there is nothing like a lawsuit to cue a negative association. This may be the reason that jurors are more likely to recall a negative consumer experience than they are to recall a positive one. In this jury, for instance, there were no stories of contractors arriving on time, doing the job as promised, then charging a fair price.
So, when a potentially negative experience could hurt your case, how do you address this juror-as-consumer? The specific answer will depend on the unique features of your case, but in general, three responses:
1. Voir Dire carefully. Focus on those who have had experiences that could form a close analogy to your case. Don’t be afraid to ask what attitudes jurors have formed as a result. Don’t bother asking if jurors can “set aside” a negative case-relevant experience.
2. Embrace the role. Don’t just answer or prove the claims, instead show your client is a good service provider who did everything within its power to provide high-quality, reliable service.
3. Remind jurors of the other side. All have been consumers, but many have been service providers as well. Those who haven’t literally been contractors will have had experience of more generally meeting a client’s expectations. Asking about those experiences can encourage jurors to subtly reframe the dispute in a more sympathetic light.