A recent Harris poll indicates that 68% of your 12 jurors likely have a pre set against you. [1] (That translates to 8.1 jurors, by the way.) They don’t trust you – or me. How does this affect the modern jury trial? For purposes of analogy, put yourself in the following scenario:
You do not need or want a new car. You are comfortable with your reliable old ride, a perfectly fine car for your needs. One day you must drive to the local X-Car dealer to pick up a friend who is leaving her car to be serviced. You’ve got better things to do that afternoon, but you got the call. As you pull into the lot, a salesman walks up, introduces himself, and tells you: “Trust me, I know what’s best for you, you need a new X-Car.” He tells you that he knows value, and that his X-Car is the car that you need to buy today. He tells you all about the X-Car, produces stacks of books and papers on it, and even asks you to watch a boring video about it as you sit there. He says if you really want to do what is right, you will trust him, put your faith in him, and allow him to make this important decision for you - - - even as to how much you should pay. You are forced to sit and listen. He knows what is best, so he says. He has all the right answers, so he says. Anyone who would disagree with him is just wrong, so he says. He apparently does not know or care that for quite some time you, your parents, your friends and your children have had a basic mistrust of car salesmen, because he keeps right on with his persuasive tactics, and appears confident that you will eventually see things his way and make the decision that he wants you to make. When you drive away, he is terribly disappointed and quite dumbfounded. He just doesn’t get it. You leave thinking to yourself, what an idiot. You wouldn’t trust that guy to make you a ham sandwich, let alone trust him in a matter as important as a car……
Face it: to a formidable percentage of jurors the modern day trial lawyer is that salesman on the car lot. And, although they are forced to sit in front of you for a while, they would much rather be elsewhere. An overwhelming majority of jurors will never put their trust in any of us. Good luck with your stacks of books and papers, your video deposition, and your powerful adversarial argument intended to “persuade” them to buy your car - - - ‘er, I mean your case. More than one juror will have values that will never allow him or her to see our view of the world, or even our side of the immediate issue. Why? Because we are trial lawyers asking them to award us large amounts of money, and research shows that we cannot be trusted.
So, instead of “arguing” our case to people who do not and will not trust us, why not simplify things and present fact-neutrals in a values-based story line? Jurors cannot challenge the fact-neutrals. Neither can your adversary. No one can. Why create a problem that has no real solution. As Einstein said: “Intellectuals solve problems, geniuses prevent them.” I’m no genius, but I will do everything within my power to avoid creating yet another problem for myself in trial. I want to avoid being that car salesman.
| Would Trust % | Would Not Trust % | Not Sure / Refused % | |
| Doctors | 85% | 12% | 3% |
| Teachers | 83% | 15% | 2% |
| Scientists | 77% | 19% | 4% |
| Police Officers | 76% | 21% | 3% |
| Professors | 75% | 19% | 6% |
| Clergymen or Priests | 74% | 22% | 4% |
| Military Officers | 72% | 26% | 3% |
| Judges | 70% | 24% | 5% |
| Accountants | 68% | 28% | 3% |
| Ordinary Man or Woman | 66% | 26% | 8% |
| Civil Servants | 62% | 32% | 6% |
| Bankers | 62% | 34% | 3% |
| The President | 48% | 47% | 4% |
| TV Newscasters | 44% | 51% | 5% |
| Athletes | 43% | 47% | 10% |
| Journalists | 39% | 58% | 3% |
| Members of Congress | 35% | 63% | 3% |
| Pollsters | 34% | 54% | 12% |
| Trade Union Leaders | 30% | 60% | 10% |
| Stockbrokers | 29% | 63% | 8% |
| Lawyers | 27% | 68% | 5% |
| Actors | 26% | 69% | 5% |
Base: All Adults
[1] A 2006 Harris Poll revealed that 68% of persons polled said they would not trust lawyers. See http://www.harrisinteractive.com/harris_poll/index.asp?PID=688. By every indication this translates to beliefs held by those within the jury pool.
[2]
Al Ries, Jack Trout. Positioning: The Battle for Your Mind, 20th Anniversary Edition. (McGraw-Hill, 2000). Page 33.