In trial, only two people care about the jury instructions. One is the judge who will be reversed if he or she does not give proper instructions. The second is the defense attorney. No plaintiff’s counsel cares; usually, they ignore them. Instead, they ask the jury to consider being fair or doing justice—or some other nonsense. But you know what? That is not the law. The law is reasonableness, and that is precisely what you need to add to every critical question in discovery.

In trial, a judge will instruct a jury somewhere between 30 and 45 times to use reason: looking at the evidence in a reasonable fashion and thinking of the case reasonably. I have never done a trial with less than 30 instructions of “reason”, “reasonably”, or “reasonableness”. 30-45 times in less than an hour of instructions. It’s a crucial part of every case.

You know what the judge does not say?  “Fairness”, or “equity”, or “using their best judgment”—even though plaintiff’s counsel will argue those aspects of cases at trial all the time. The plaintiff’s counsel’s job is to get the jury to forget that reasonableness is the standard.

One would think if a judge ordered something 30 or 45 times, it might be important. One would also think if the judge told you to act reasonably and utilize reason, that such attributes would be important in a case. Why let the jury forget that?

I am told by those who served in juries that when the jury gets done with hearing the evidence, they often immediately select the foreperson and start going through the jury questions. You know what they do not do? Go back through the instructions. That’s right—we’ve already lost reason. So how do we bring it back? Let’s rewind.

At Tyson & Mendes, we always approach each case, whether big or small, with The Apex^SM in mind. We have found the Core Four, key building blocks of The Apex^SM, to be effective. We focus on responsibility and take responsibility for something in every single case.  We anchor the jury with a reasonable number. We also make sure that the jury knows our corporate clients by introduction from us, as well as by eliciting testimony to give a more holistic picture of the corporation.

Sometimes, this gets tricky. We may have already taken responsibility for an accident, and the plaintiff’s counsel will object to further information, but if the plaintiff will be personalized and made sympathetic, why can we not do the same for our clients?

Lastly, we attack pain and suffering. Each of the Core Four can be implemented to emphasize reason—indeed, one of the key themes for every single trial should be reasonableness. In fact, even our questions should include the term “reasonable” in some form. Ask: “Do you believe that your conduct was reasonable at the time of the accident?”

In deposing experts, you might have one expert saying one thing while another says the opposite. Help the jury assess experts reasonably. Ask: “Is our expert reasonable in her opinions?” Use the word “reasonable” in every question. It is the only basis for the jury. Do not use the word “fair”, or “equitable”; this just strengthens plaintiff’s counsel’s case. Do not ask if they disagree. Ask if it is reasonable. You may be surprised by the answer. And if that expert says it is unreasonable, ask why. Get into it.

Armed with that ammunition from depositions, you can begin asking questions of prospective jurors during voir dire about reasonableness. In my voir dire, I will endeavor to educate them and remind them that they will be asked repeatedly by the judge to render a decision for this case, based on reason. And doing so, I can convince the jury to come up with a reasonable verdict, rather than one that is rooted in rage. I will even ensure I have reminded the court the standard is always reason. Once everyone is on the same page, focusing on reasonableness, we can render verdicts which are more beneficial to the defense.

Keep Reading

Waiving the Past to Inflate the Future: When Plaintiffs Take Corenbaum Too Far The Origins of “Accountability”—Why It Matters to Civil Trial Attorneys NYC: The City That Never Stops Hosting Punitive Liability Through the Rear Window: Lessons Learned from a Class Action Filing Federal Preemption Over State Law Safety Claims – What That Means for Industries Regulated by the Federal Government How to Handle FTB-Suspended Entities Products Liability Alert: “Non-Habit Forming” Claims Put Sleep-Aid Marketing Under Scrutiny Give a Number: Why Silence May Be the Defense’s Most Expensive Mistake Being a Good Human is Common Sense

More by this author

The Reason for Reason Two Strategies Defense Attorneys Should Implement Today to Avoid Nuclear Verdicts® in Trucking Cases Ten Easily Correctable Mistakes Made in Depositions Top 10 Voir Dire Questions to Detect and Dismiss Nuclear Jurors Fighting a Nuclear War in The Trucking Industry Two Strategies Defense Attorneys Should Implement Today to Avoid Nuclear Verdicts®