jury pool

108 – Jessica Brylo – Trial Dynamics: Tipping the Scales in Your Favor

On this episode of the Trial Lawyer Nation podcast, Michael sits down with Jessica Brylo, owner and lead consultant at Trial Dynamics. They discuss Jessica’s path to success, identifying juror attitudes, jury decision-making, case framing, focus groups, and much more.

Michael begins the episode by asking Jessica about her background and what got her into jury consulting. Jessica shares how she went to law school at Duke, where she got in contact with David Ball. She began attending focus groups and learning from David, and it became clear that jury research and consulting was her calling.

Michael then asks her to share some wisdom she’s learned along the way regarding juror attitudes. Jessica starts by stating most jurors and juries do a good job and arrive at logical conclusions; the interesting part as a researcher is looking at how they got there (Hint: It’s rarely how the lawyer thought they would). This is because jurors make decisions based on their own past experiences, and much of their decision-making process is unconscious.

Jessica continues on this line of thought by explaining how the different facts you hear every day are all brought into your brain and “filtered through your life experiences.” If this new fact fits within those experiences, you will likely accept it. If it does not fit within those experiences or goes against your beliefs, you’ll either change the fact in your mind or throw it out altogether. The key is to build your story around what those pre-existing beliefs are and fit it within that framework. And since every fact you hear is filtered through previously learned facts, Jessica emphasizes that messing up during voir dire and opening statement is extremely hard to come back from.

“When [jurors] hear a fact, they don’t just hear the fact in isolation.” – Jessica Brylo

Michael and Jessica continue to discuss Jessica’s experience and insights into juror decision making, including how to keep a positive atmosphere while finding what jurors you need to strike, what you can do to prepare a case of any value, and how to identify potential leaders on a jury panel.

The conversation then shifts to the practice of Case Framing, something Jessica specializes in. She defines it simply as the way in which you portray a case, then elaborates on the different ways to tell this story in a persuasive way, starting with not focusing on the plaintiff. Instead, Jessica says you should focus on the wrong the defendant did; better yet what the company or industry as a whole did, and the potential ramifications of that wrongdoing.

Additionally, Jessica explains how you need to keep your focus on the facts of YOUR case and not fall prey to the “red herrings” the defense throws at you. While you need to address what happened in the crash, you should remind the jurors that the point is irrelevant to the case as a whole. When the defense tries to take the crash out of context, it’s your job to put it back into context.

“You can’t play a defensive game all the time. You need to focus on your best facts, focus on where you need the jurors to be.” – Jessica Brylo

Michael then asks Jessica a somewhat controversial question- what is the main purpose of jury selection? She acknowledges the different opinions of Nick Rowley and other prominent trial lawyers, but says for her it’s:

  1. Reveal bad jurors.
  2. Form a connection with the jurors.

Jessica then shares her insightful strategies for finding out who the bad jurors are, then how she connects with the jurors.

While Jessica recognizes the differing opinions surrounding jury selection, there are certain mistakes that just should not be made. Common ones she sees are the lawyer talking too much about themselves, asking jurors if they “have a problem” with things or if they “can be fair” about things, and asking the jurors’ opinion about political topics like Trump or the COVID response.

“They’re trying to do the right thing, but it’s just not the right phrasing and words to do it.” – Jessica Brylo

Michael and Jessica wrap up the episode by discussing focus groups. In an ideal world, you could hire a consultant to run all your focus groups but given budget constraints and varying case values that’s just not realistic. When running your own focus group, Jessica recommends doing your best to find a truly representative jury pool, which can be harder than you’d think. She also cautions against some common mistakes she sees in focus groups, including pushing your own stuff too much and not focusing on the negative aspects of your case. They finish up on what to do with the valuable, though negative, information you receive at the focus group.

Jessica wrote and released a free e-book for plaintiff lawyers, detailing the do’s and don’ts of running your own focus group. If you’re interested in this free e-book, email jessica@trialdynamics.net and request a copy. If you’re interested in working with Jessica Brylo, visit her website at www.trialdynamics.net.

This episode also covers the Arizona Jury Project, why word choice is so important, how to use the defense’s behavior throughout the lawsuit against them with the jury, and so much more.

 

Guest Bio:

Jessica Brylo, J.D., M.A. is the owner and lead consultant at Trial Dynamics. She graduated cum laude from Duke Law School in 2007 where she received her J.D. and Masters in Psychology. While there, she was trained by one of the nation’s leading trial consultants, David Ball, Ph.D. She was given the privilege held by only a handful of people in the country of being able to study video of real juries deliberating from the Arizona Project. While at Duke, she spent three years studying juries, visiting courthouses, interviewing jurors, and interning with Dr. Ball. She trained in the art of editing opening statements and closing arguments to address the jurors’ unconscious minds, thus making cases stronger by creating jurors who fight for your client when they are in the deliberation room.

She founded Hoffman Brylo Consulting, now Trial Dynamics, in 2008, a full-service consulting firm specializing in plaintiff’s cases. Since then, she has expanded the firm to serve a wider range of cases nationally. She believes that no two cases are alike and that jurors respond to small nuances that make huge differences in verdicts. Consulting strategy techniques can reveal these subtleties and shed light on how to overcome hidden problems in the case, but only if conducted properly with attention to detail.

68 – Chris Madeksho – Masked Justice: Part 2

In this Trial Lawyer Nation podcast, Michael sits down with another trail blazing trial lawyer, Chris Madeksho. Chris recently received a $13.9 million jury verdict on a Mesothelioma case tried in person using social distancing and other safety measures. They discuss Chris’s background, the details and challenges of the case he tried, the safety measures taken, and the numerous strategies Chris used to win this fantastic verdict in the age of COVID-19.

Chris specializes in toxic tort and was introduced to the area by his late father, who worked in asbestos installation when he was young and went on to become a trial lawyer. He began his practice in Texas, but later moved his principal office to California due to Texas tort reform. As most great trial lawyers do, he then attended the Trial Lawyers College and began learning from the other great trial lawyers and scholars in the arena, citing Sari de la Motte, Eric Penn, Nick Rowley, Keith Mitnik, and R. Rex Parris.

Michael then asks Chris about the details of the case he tried. Chris’s client was a 68-year old Mesothelioma patient who worked as an asbestos installer from ages 9 to 19. Because of some criminal details in his background, Chris was forced to drop the loss of consortium claim and only request damages in personal injury, BUT was still awarded $13 million in non-economic damages alone.

With this impressive verdict, Michael asks Chris if the defense wanted to try the case or not. Chris responds with a resounding, “No.” In fact, they even opposed Chris’s waiver of jury when he attempted to get a bench trial. So Chris pushed forward, complied with the judge’s orders, and was completely prepared for trial when the time came.

Chris then explains how the jury summons and voir dire process was handled safely. The summonses were sent out via email and included COVID-19 hardship questions. He shares how we know our most dangerous jurors are people who are not afraid of COVID-19, but our second most dangerous jurors are people who are there who don’t want to be. Eliminating people who don’t want to be there was very helpful in that respect.

But, a jury summons by email has its downfalls. The biggest being that the demographics of the jury pool were not representative of the populous. The resulting jury was more affluent, more connected with technology, and more conservative than a typical King County jury would be. But as Chris puts it, “When you have a client who’s going to die if you don’t try the case now, you just do the best you can.”

After summoning the jury pool, voir dire was conducted mostly through Zoom with only two panels attending in person due to security concerns. These in person panelists were separated by a 6-foot spacer and their voir dire took place in a convention center to allow for safe distancing. While Chris believes he connected better with the in-person panelists, the resulting jury ended up being comprised of 14 virtual panelists and only 1 in person panelist.

The pair then move on to discuss Chris’s storytelling strategy. Chris explains how he’s worked extensively with Sari de la Motte and employed many of her Hostage to Hero strategies to craft his opening and closing arguments. He also emphasizes the importance of being “at ease” when speaking to the jury with a mask on. He shares the perfect analogy of being in a dark room where you can only see the other person’s eyes – you’re going to focus heavily on what you can see, so your eyes need to appear honest and relaxed.

Chris’s opening also focused heavily on the conduct of the defendant, a story he told by choosing the “villain” to be a corporate representative who is still alive. He decided to use her as the villain because she is more tangible to the jury than someone who may have done a lot of harm, but isn’t alive to pay for their wrongdoings. Chris and Michael then have a very insightful conversation on if the villain needs to be a person, or if the villain can simply be the organization as a whole – a subject discussed on this podcast in the past.

Michael then asks about how Chris told the damages story at trial, which Chris boiled down to “This is a man who worked his entire childhood. Now that he’s in his final days, he’s living his childhood for the first time.” He then shares how this powerful story was made stronger by getting the defense doctor to share the horrors of Mesothelioma – a useful strategy which every listener needs to hear.

The pair ends the episode with the defense’s shocking (and unsuccessful) closing argument. The defense lawyer basically said, “A lot of people are going to be dying painful deaths in this COVID era. They’re not getting any money.” As he said that, the jury set their tablets down and nobody wrote for the remainder of his argument. Chris agrees to share the transcripts for the full details, but the defense effectively ostracized themselves from the jury at this exact moment. While plaintiff lawyers everywhere have been concerned about this being used successfully against them, Chris’s experience shows it was ineffective.

If you’d like to reach Chris Madeksho, you can email him at cmadeksho@madeksholaw.com or visit his website at www.madeksholaw.com. He’s been kind enough to make himself available to speak with any plaintiff attorney who’s looking to get back in the courtroom and wants to learn from his experience.

This podcast also covers the intricacies of asbestos cases, the importance of putting your family first, working through personal issues with clients, Chris’s courtroom layout, trusting the jury, Chris’s advice for trial lawyers who want to improve, and so much more.

 

Interested in hearing more COVID Era trial stories? Check out our other Masked Justice episodes:

 

Bio:

Chris is licensed to practice law in three states – Texas, California and Washington State, and he has a national reputation for managing asbestos and other toxic torts. He has represented mesothelioma and toxic injury clients in courtrooms from New York to California, and from the Midwest down to Texas.  Chris is a graduate of the nationally-renowned Trial Lawyers College and is a fluent Spanish and French speaker.

In addition to trying cases for victims of cancer and toxic torts, Chris routinely tries cases pro bono for low-income families facing eviction in the Los Angeles area. He participated as trial counsel and adviser to tenants in the largest rent strike in Los Angeles County history. The tenants prevailed in their strike and the landlord eventually dismissed his eviction lawsuits after losing several trials. Helping his community is a passion for Chris.

Outside of work, you’ll find Chris spending time with his family — they especially enjoy gardening, exploring the outdoors, making music, and enjoying good food together. Chris’s dream is to eventually use his time and resources to reforest American ecosystems.

 

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