Mastering Jury Selection and Trial Structure

The “Sanchez” Verdict: Overcoming Cynicism

Plotkin highlights his work with Nick Rowley and Keith Bruno in a New Mexico case that resulted in a massive verdict despite challenging facts.

• The Challenge: The plaintiff was a 66-year-old widower seeking testosterone treatments who suffered sexual dysfunction after a clinic pushed unnecessary and dangerous procedures.
• The Turning Point: During voir dire, a cynical juror audibly questioned why a man his age even “needed to have sex anymore”.
• The Lesson: The audible gasps from other jurors proved that while some individuals are cynical, many others care deeply about a plaintiff’s quality of life. The team successfully identified and removed the cynical outliers to secure a unanimous verdict.

Common Mistakes in Jury Selection

Plotkin identifies several “red flag” behaviors that can sink a plaintiff’s case before the first witness is called:

• Judging a Book by Its Cover: Plotkin argues that “never keeping X on a jury” (e.g., engineers, nurses, or accountants) is a massive mistake. He has seen software engineers and RNs serve as forepersons on multimillion-dollar wrongful death and surgery cases.
• Ignoring Values for Stereotypes: A juror’s personal values regarding accountability and common sense are far more predictive than their job title or ethnicity.
• Focusing on Tort Reform: Asking general questions about “too many lawsuits” is often useless. Plotkin finds that even jurors who hate “frivolous” lawsuits will award significant damages if they perceive a case is legitimate and the defendant’s conduct was egregious.

Strategic Framing: Opening and Damages

Plotkin’s approach to trial structure emphasizes the defendant’s choices and the concept of accountability.

• The Power of “Choice”: Rather than calling an incident an “accident,” Plotkin frames every failure as a deliberate choice. He suggests asking jurors in voir dire, “Is being careful a choice we make every morning?”.
• “Could Have” vs. “Should Have”: In openings, Plotkin advises against telling jurors what they “should” conclude. Instead, show them what the defendant “could have” done (e.g., run a test, performed a background check) and let the jury reach the conclusion of negligence on their own.
• The “Accountability” Anchor: In jurisdictions like Pennsylvania where lawyers cannot ask for a specific dollar amount for pain and suffering, Plotkin suggests framing the award as the amount necessary to hold the defendant “fully accountable” for the harm caused.
• Quality of Life: He recommends asking jurors if they are open to the idea that a person’s quality of life—the one thing even a billionaire like Jeff Bezos cannot buy back—is worth more than a lifetime of paychecks.

The “Mini Opening” as a Selection Tool

For venues that allow a brief pretrial statement, Plotkin uses a specific structure to “smoke out” bad jurors:

1. Mission Statement: Start with a line about the importance of the decision, such as “You get to make important decisions about how careful doctors must be”.
2. Sucking Out Good Facts: Do not give away your “slam dunk” facts early. Instead, say “You will hear what the hospital knew about this doctor’s training,” which piques interest without losing a good juror for cause.
3. Highlighting Warts: Use the mini opening to tell the jury the worst facts about your case (e.g., the plaintiff was drinking, or didn’t ask a question). This forces the “bad” jurors to admit they’ve already decided the case, allowing you to strike them for cause.

Harry Plotkin is the co-host of the upcoming podcast Picking Justice, which focuses entirely on the art and science of jury selection.