Full disclosure: this material is lifted entirely from Tyson & Mendes founder and strategic managing partner, Robert Tyson. But tried and true trial strategies bear repeating, and repeating often. So, let’s dive in on one of the most counterintuitive, underutilized, and effective trial strategies for defense lawyers:
You kept thinking this claim was going away. Surely plaintiff would see the light and accept his case is a joke, but here we are one week out from trial. Your defense counsel is droning on about trial themes when something snaps you out of a daze: we are going to accept responsibility.
You scratch your head; surely you heard incorrectly. This case is a nightmare, plaintiff’s counsel is a crock, and you have a mountain of evidence disproving any ounce of liability – and this attorney is trying to tell you she is going to stand up in front of a jury on your behalf and ACCEPT RESPONSIBILITY for what happened here?! What are you even paying this firm for, anyway?
Let’s take a step back. Accepting responsibility does not equal accepting liability. I repeat, accepting responsibility does not equal accepting liability. So, what is the difference? To quote from the source verbatim:
Examples of accepting responsibility, without accepting liability:
- Accept responsibility for having a safe product that underwent rigorous testing and complies with all applicable industry standards;
- Accept responsibility for maintaining a safe premises;
- Accept responsibility for defendant’s response to alleged harassment in compliance with its own employee handbook; or
- Accept responsibility for providing sound professional advice.
Sound confusing? A little awkward? Perhaps. But here is the thing… it WORKS. Try this simple exercise:
Think back to the last argument – heated argument – you had. Things were said, feelings were hurt, and you were fuming. All kinds of thoughts might have run through your head: “She is always so inconsiderate and never thinks of me;” “I cannot believe he did that – he obviously does not value my opinion at all;” “She must not care about me; if she did, she never would have said that.” While you are stewing in your thoughts, the other person approaches you, and you build a case in your mind for the terrible things he will say and how sorry he will be when you are finished with him! He opens his mouth and says, “I value your opinion so much. It is so important to me that you feel heard and validated. I am very sorry that I said what I said in a way that it caused you to doubt those things.”
How do you feel now? Chances are, absent extenuating circumstances, you just might have calmed down enough to think rationally again. You may wonder, “How could I have doubted this person cares about me? Of course he cares! I have so many examples of ways that he has shown me he cares.”
Now think of a jury. They have just heard plaintiff’s opening statement, wherein the attorney hammered down on your business’s complete disregard for the safety of the public, as evidenced by plaintiff’s injuries. “If they really cared about safety, or about the public in general, Susie never would have gotten injured!” That is where accepting responsibility comes to play. A skilled defense attorney will avoid the trap of ignoring plaintiff’s accusations altogether, or worse, retaliating. A skilled defense attorney will tell the jury that your business accepts responsibility for facilitating public safety, and will detail a list of proven examples of the same. Just as in a relational argument, tensions will dissolve as the jury is reminded of the truth, and when that truth is communicated rationally and with humility.
This may sound more like a relationship blog than a legal one, but that is right on point: jurors are people. People are wired for relationship, which means they understand and operate in relational dynamics, which means if we ignore those dynamics at trial we will miss a crucial opportunity for connection which could end up very costly.
The takeaway is: at your next trial strategy meeting with defense counsel, put yourself in the jurors’ shoes. Let your defense counsel humbly accept responsibility on your behalf, and reap the benefits.
As noted above, all material comes directly from Robert Tyson himself. You can find the complete article here.