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Seinfeld syndrome: the indifference of otherwise nice jurors.

A veteran litigator offers tips for helping young jurors develop their compassionate sides.

Last spring, I watched the final episode of the television sitcom Seinfeld.

Most of the show was devoted to the trial of the main characters--Jerry, Kramer, George, and Elaine--for "criminal indifference." They were charged with the crime because they had failed to come to the aid of a carjacking victim. Ultimately, they were convicted--the jury found they had failed to show compassion for their fellow man.

While watching the show, I realized that the Seinfeld characters were representative of many of today's young jurors. And I came away from the show with a new phrase I now use to refer to an attitude I find these jurors share. I call it Seinfeld Syndrome.

Like the characters in the show, many jurors in their late 20s and early 30s--members of Generation X--often seem indifferent to the plight of all but the most horrifically injured plaintiffs. To these jurors, money solves nothing. I have heard young jurors say that anyone seriously injured by a negligent party should be made whole by having only their lost wages and medical bills paid.

Strategies for dealing with jurors suffering from Seinfeld Syndrome can be simple or complex. The easiest approach is to accept that you cannot persuade them to change their view of one of the purposes of the civil justice system--to compensate in: jury victims for their losses. You could simply try to challenge and excuse from the jury pool any young person, especially someone who is unmarried or divorced or who has never raised children. However, given the limits most courts have on peremptory challenges, this approach will not always be successful.

Strategies

Other approaches are not as simple, but they may be more effective. Several possibilities follow.

The laws of our land. Tell the jury at the very outset of the trial that their law has been broken. Point out that the tortfeasor has broken a rule, law, or code of conduct that applies to every citizen.

If the Generation Xers on the jury believe the rule of law is important, and if you can demonstrate that the safety standard or minimum standard of acceptable conduct that was violated was intended to protect everyone, you have a better chance of convincing them of the defendant's liability and collecting a full and fair recovery for your client.

I also find that many young jurors do not think people should be held legally responsible for their "mistakes." I have learned it is much better to phrase the issue of negligence as a violation of minimal written standards, a disregard of unwritten but long-established customs or practices, or a failure to follow basic rules of civilization. A flagrant breach of accepted rules of behavior has more impact on Generation Xers than a "careless mistake" or an "unintentional breach of the reasonable person standard."

The circle of life. Demonstrate how the laws or rules that have been violated affect the jurors' own lives. The old adage that what goes around comes around is likely to be more meaningful to a Generation Xer than will the judge's instruction about the deterrent value of our common law of torts.

The value of intangibles. Many young jurors seem to have a hard time understanding the concept of intangible loss. They want to know "the bottom line" or "net effect." That is, how the plaintiff's pain and suffering has affected his or her life and family.

To do this, I ask the client what I call the $64 Question: In what ways has your injury significantly affected your life? I also ask clients and their close relatives and friends to write lists of the "enjoyments of life" that have been lost or impaired. The courtroom version of the song "These Are [Were] a Few of My Favorite Things" can impress even the most indifferent or callous young jurors. Even these jurors will likely have a few of these things on their own lists of personal favorites.

Try to avoid using the terms "pain and suffering" or "noneconomic damages" when referring to intangible losses. Instead, refer to them as "human" losses. People in all states have been conditioned by recent insurance propaganda to recoil from these terms.

To show how something intangible can have value, you might try using the example of the value of a house. The tangible aspects of the house--the lot, the building, the furnishings--are all worth something. But the love, care, and memories that go into making a house a home have value too. These intangible, but very real, attributes of a home can be compared to the value represented by human, intangible, or noneconomic damages. Most Xers will understand this analogy.

A meaningful difference. Convince young jurors that the money they award will make a meaningful difference to an injured plaintiff--that it is not just a reward for being victimized. To do this, I often ask injury victims what I call the $65 Question (because the answer to it can be even more important than the answer to the $64 Question). I ask them, What would you do with any settlement or award money you receive?

In a recent case, a jury that included several Generation Xers awarded a substantial sum to a man who had suffered paralyzing injuries in a car accident. He had testified that his dream was to start a business to raise and harvest fish.

The jury awarded every cent of the man's projected future lost earnings and also a large amount for his lost enjoyments of life. The jurors explained afterward that they believed he could achieve his life's goal with the money awarded.

In another recent case, a similarly composed jury awarded a significant amount to an elderly woman who had injured her back in a fall on the Atlantic City boardwalk. During the trial, the woman said that her injuries prevented her from driving to see her grandchildren--something she dearly missed doing. After the verdict, several jurors told her they hoped she would use the money to hire someone to drive her to visit her grandchildren.

The importance of voir dire. Today, voit dire is more important to the success of a case than it has ever been. In recent surveys of focus group participants, 24 percent of men and 13 percent of women polled were not willing to award money damages for psychological injuries under any circumstances.

Tell trial judges about this study. These are staggering statistics that must be addressed by you and the trial judge in voir dire. There are today, for reasons only social scientists can explain, a significant number of eligible jurors in our civil venires who philosophically do not belong on any civil jury that fairly and without any preconceived ideas must award monetary damages to plaintiffs wrongfully injured or killed.

The client's credibility. The credibility of an injury victim is a basic ingredient in any personal injury case. Just as negligence is never presumed when an injury has occurred, the mere fact that a client has been injured does not mean the client's complaints are valid.

Young jurors seem to be suspicious of anyone trying to "sell something" to them. However, if these jurors respect and trust the plaintiff, chances are they will award the full amount of damages.

Coupled with the general skepticism among young jurors is the fact that in more and more personal injury cases, plaintiffs are being attacked by the defense as malingerers, fakes, and liars. The two most popular current defense attacks on plaintiffs' credibility are the Minor Impact Soft Tissue (M.I.S.T.) Defense and the NQ Objective Sign of Injury Defense. Younger, more skeptical jurors are prone to accept these negative philosophies, especially if they are unrebutted.

The first defense goes like this: "It was just a `widdle' bump. No one could get hurt from such a mild impact."

The second defense is usually accompanied by the self-professed "independent" medical examiner, who, after looking at "the films" and conducting a 15-minute, "drive-by" exam, concludes that "the plaintiff must be seeking some kind of secondary gain" because either there are no objective signs of injury or the plaintiff's complaints are "inconsistent" with the examiner's findings. Reading between the lines of testimony, today's jurors are getting the message that our clients are liars and that we are phonies.

The M.I.S.T. Defense is an insidious attempt by large insurers to drive up the costs of litigating and trying soft tissue cases in order to discourage the plaintiff bar from accepting these cases. When your client's credibility is squarely put in issue,(1( recommend calling character witnesses, pursuant to Federal Rule of Evidence 608. A good character witness--one who reminds the Generation Xers of their "Auntie Em" or some trusted adult--may have a positive effect on the young jurors.

When defense medical experts say that your client is faking or exaggerating the severity of an injury, try to bring in all the client's health care personnel to support the client's testimony. You need to overcome the emotional inertia of the young, cold-hearted juror. Nurses, physical therapists, and emergency medical technicians may help establish a "bond" or connection with the Generation X juror. Also, introduce into evidence that list of favorite things the client has had to give up for the sake of the alleged charade.

In his lectures, Nelson Hendler, who developed one of the best objective pain validity tests, states that most human beings enjoy eating, sleeping, having sex, playing, and (if they are lucky) working? If you can conclusively prove that your client has been deprived of one or more of these enjoyments of life, most jurors will tend to discount the defendant's paid character assassination as a baseless ad hominem attack.

The lawyer's credibility. We can no longer assume that young jurors will be outraged by an opening statement outlining a preventable and tragic incident that was caused by reckless and indifferent conduct. Young jurors today have a higher threshold for outrage. Why? I do not know. I leave that for other analysts.

Because these jurors are less inclined to start out empathetic or sympathetic to our clients, we must, from the very beginning of all our trials, convince them that we are the good guys. We must be sure to present all the facts to them in a credible and competent manner. As the great New Jersey trial-lawyer-turned-federal-judge Joseph Rodriguez used to teach at ATLA seminars, don't get emotional or passionate with the jury until you have earned the right to do so.

We trial lawyers have become almost blind to the fact that many people think we are pond scum. But we must not allow defense attorneys to further impugn our integrity. The defense really has the upper hand in today's antilawyer climate. After all, the defense does not care if the jury thinks all lawyers are liars because the defense has no burden of persuasion. When a trial judge scolds both sides in a case for an infraction, the only detrimental effect is to the party with the burden of proof.

We must be scrupulously careful, candid, and professional in our courtroom manner. In whatever cases we try, we must be careful not to appear to be overreaching, overselling, or overzealous. In our trial presentations, we must convey to the jury-and in any public forum, convey to the public at large--that what we are about is not a big verdict or a little verdict, but a fair one.

Just the facts. Young jurors like short and simple presentations. We seem to live in a "Pop Tart," mini-series, material world of information. By going into a lot of detail in the beginning sentences of our opening statements, we sometimes give jurors too much information. This results in a mixed and confusing message.

Sticking to the basics and giving the jury enough information to form a positive view of your client helps the jury to assimilate the facts and frame the issues. For example, introducing a plaintiff as a good father has more impact and staying power to a listener than saying the plaintiff was a 35year-old, single parent who worked hard as an auto mechanic to raise three boys as a good father.

We lawyers sometimes think every statement or proposition of fact must have a preamble with factual predicates and/or a string of case citations. Do not scatter or diffuse your message and leave jurors unclear as to your points.

The expert's credentials. Bob Begam, a past president of ATLA, taught me that a good auto mechanic with grease-stained overalls can sometimes be as effective and more credible as a design defect expert than an entire stable of GM, Ford, or Chrysler auto design engineers.

In the minds of some Generation X jurors, street smarts count a lot when judging the demeanor of a witness. However, some upper-class Xers believe that only people who have college degrees can be experts. Therefore, to cover all bases, you might consider finding both a highly credentialed, degreed expert and a good, experienced "shirt-sleeve" type of expert.

Generation Next--La Nina?

Let us hope that the members of the next generation--today's high school seniors and college students--are growing up to believe in our Constitution, the rules and principles of our common law, and the equitable precept of responsibility for full, fair, and reasonable compensation by those found to be responsible for causing injury to others.

Let us hope the young people who will be in the next wave of jurors do not become a "no fault" generation that believes economic loss should be insured against by plaintiffs (the argument of advocates for national no-fault, euphemistically called "choice," auto insurance).

Let us hope that the hearts of the next generation do not grow colder in response to the "La Nina" phenomenon, which is predicted to bring cold weather to North America. Hopefully, "Generation Next" will not buy into the conservative "tough luck, that's life" philosophy that underlies efforts to place legislative caps on noneconomic losses.

Liberty's guardian

In the meantime, one case at a time, one public speaking opportunity at a time, we must help the general public to be better informed about and less indifferent to the right of every citizen to a fair and impartial civil jury.

As Sir William Blackstone said more than 200 years ago, trial by jury

is a privilege of the highest and most beneficial

nature [and] our most important guardian

of public and private liberty.... The liberties

of England cannot but subsist so long as this

palladium remains sacred and inviolate, not

only from all open attacks.... but also from all

secret machinations which may sap and undermine

it.(3)

Notes

(1.) These are results from a survey conducted by Gregory S. Cusimano in Alabama from 1996 to the present. Participants were asked the question before the focus groups were formed.

(2.) For information, contact Mensana Diagnostics Corp. Pain Validity Test, Mensana Diagnostics Corp., Delaware Technology Park, One Innovation Way, Ste. 301, Newark, DE 19711, tel. (302) 2668-399, fax (302) 266-8395. For general information, see Nelson H. Hendler & J.G. Kozikowski, Overlooked Physical Diagnosis in Chronic Pain Patients Involved in Litigation, 34 PSYCHOSOMATICS 494 (1993); Nelson Hendler, Validating and Treating the Complaint of Chronic Back Pain: The Mensana Approach, 35 CLINICAL NEUROSURGERY 385 (1989); NELSON H. HENDLER & JUDITH H. FENTON, HOW TO COPE WITH CHRONIC PAIN (1986).

(3.) 3 WILLIAM BLACKSTONE, COMMENTARIES 349-50 (1769); 4/d. at 342-44, 407.

Thomas J. Vesper practices with Westmoreland, Vesper & Schwartz in West Atlantic City, New Jersey.
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Author:Vesper, Thomas J.
Publication:Trial
Date:Oct 1, 1998
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