Deliberation: An Open Discussion with Consultants and Jurors

1. Deliberation: An Open Discussion with Consultants and Jurors Dr. Christina Marinakis, Esq., Director of Jury Research, Litigation Insights David F. Albright, Jr., Esq., The Law Offices of David F. Albright, Jr. Christopher M. McNally, Esq., Partner, Bodie, Dolina, Hobbs, Friddell & Grenzer, P.C.

2. The Jury as Destiny: It all boils down to juries… “Jury of His Peers” Artist: Barry Leighton Jones

3. You be the Jury! Preliminary Thoughts and Impressions of the Trial • What arguments did you find most compelling? • What arguments from the Plaintiff/Defense did you find least persuasive? • What aspect of the fact pattern did you feel “turned the tide” either way? • What information would you have wanted to know more about? • What did you like the most or least about the presentation of the arguments themselves?

4. What do Juries Think: Predicting Jury Feedback from the Fact Pattern • “I can barely remember what year my kid was born, how could she possibly remember what year she sold the property when she had so many other properties!?” • “Ms. Langley ‘confused’ at the deposition? – yea right! She just didn’t realize until afterwards that she would be implicated if she didn’t sell OAS until 1992!” • “Even if Langley wasn’t the owner when the twins lived there, she sold the property in that condition so she should be held responsible.” Practice Tip: Educate jury about legal duties of property owners – they may not realize such obligations end with transfer of ownership or duties to maintain!!

5. Practice Tip: Educate Your Jury!!! • Juries may not understand even basic legal principles that you and I take for granted! • Examples: • Juries may not know what a “party” is… • Juries may not know what a “deposition is” • Assume you may need to explain even basic concepts, but do it deferentially • Juries may not understand that a legal duty by a landlord ceases once the property is sold even if the landlord created hazardous conditions during ownership • Juries may not understand that the mere presence of lead in a property is not a crime, not a violation of the law, and not necessarily indicative of exposure! • Takeaways: • Educate • Simplify • Explain

6. Title? • LLC? • Sole Member? • Resident Agent? • Transfer Deed? • President of LLC? • Deposition? • Managing Member? • Transcript? • Errata Sheet? What is a….????

7. What do Juries Think: Predicting Jury Feedback from the Fact Pattern (Cont.) • “The twins were only six months old when they left Archer Street. Babies do not even begin to crawl until 6 to 10 months. Its hard to believe they ate that many chips at Archer Street if they were barely able to sit up during their time there…also is a 9 month old going to mimic a construction worker???” • “It doesn’t matter that Dr. Hall never examined the boys personally – he’s obviously qualified… though his not remembering if a risk assessment was performed looks bad; maybe he has this case confused with another one…” • Practice Tip: • Prepare your witnesses well • Jurors generally do not care if the expert actually examined the Plaintiff

8. What do Juries Think: Predicting Jury Feedback from the Fact Pattern (Cont.) Practice Tip: Fill in the details or jurors will fill it in on personal experience and may do so incorrectly • “The water supply issue has nothing to do with this case. The twins were breast feeding or drinking formula during this time.” • “Lead in the soil? But where did it come from?” • “Painting over deteriorated paint at 6 Hill Street – wouldn’t that also contribute given that it is just going to start chipping again!” • “Is soil testing in 2015 a reliable indicator at all for what existed in the soil over 2 decades ago??? With rain, snow and runoff that just doesn’t seem reliable…” • Practice Tip: • Be sure experts explain that it takes 10,000 years for lead to migrate 1 inch in soil! • Assume juries could use common sense approaches to conclusions unless the science suggests otherwise

9. Real juror quotes from lead cases! Practice Tip: Jurors will refer to their own experiences and are likely to hold property owners to higher standard of recordkeeping and property upkeep • “When I sold my house, I had to certify that it didn’t have any lead paint, and we had to get it inspected too.” • “From birth to age 2, the kid was at the Dad’s house; that’s the age when he would be crawling around and putting things in his mouth.” • “Just because the adults didn’t see it doesn’t mean it didn’t happen; little kids put things in their mouths all the time when adults aren’t looking.” • “Their cousins lived right down the block. You can’t tell me they only visited a few times. They had to be going back and forth all the time to play with their cousins.” Practice Tip: Jurors will bring their own child-rearing experiences to bear in deliberations and are likely to consider the child’s developmental stage

10. The Jury is “Always Watching!!!!”

11. How to Present your Clients Remembering that “The Jury is Always Watching” • Presentation of the Defendants: • Introduce the Defendants • Lose the bling • Beware of combative or evasive questions • Tell your client’s story – the Plaintiffs will tell theirs! • Opportunities to shine • Presentation of the Plaintiff: • Introduce clients • Lose the baggy clothes, dress presentable • Clients falling asleep, disinterested – jury will pick up on • Ensure they are engaged in the case

12. Given that the jury is always watching… • Jurors want to play detective – they will follow bread crumbs – drop them!! • Other properties • Other sources • Personal life of Parties • Attorney Conduct • Plaintiff Practice Tip: • Reinforce throughout the trial that the jury is here to determine whether this property was a contributing source - you do not have to determine every other source • Practice Tip: • Jurors will draw many inferences from property conditions unrelated to condition of paint, such as general upkeep, presence of pets, etc.

13. Reduce a Story to a Visual… • Six Hill Street (Aunt’s – Visitation x3/week, 6 hours from 8/1/91 - 2000) • Decent condition • Previous owner painted over deteriorated paint on the walls • Kids never seen eating or licking any paint, chips or dust particles • Cousin had PB level 23 at this property 11/91 • Early 1992 BCHD inspection – PB on windowsills David Eddie PB 8 PB 5 (6/1/92) David Eddie PB 4 PB 2 (10/1/94) Address David PB 7 (12/1/91) David Eddie PB 9 PB 6 (6/1/93) • Five High Street (Grandparents - Visitation) • Built in 1935 • No lead testing • No evidence of deteriorated paint • Visitation Timeframe: • 8/91 – 8/93: x3/week • 8/93 – 2003; Some holidays, weekends, Sunday Dinners Six Hill Street Five High Street • Three Church Street (Primary Residence – 7/1/94 – 2003) • New Construction – Built 1993 Three Church St. • Two Band Street (Primary Residence) – 12/15/91 – 7/1/94 • Good condition (no chipped paint) but noticeable dust • Built 1905; Partially renovated 1990 • 12/91 inspection showed PB levels top frame of front/rear exterior doors 8 feet up • Twins played in backyard soil 1000 MCG/ft2 Two Band Street • One Archer Street (Primary Residence) 6/2/91 – 12/15/91 • Twins seen eating paint chips • Poorly maintained – chipped paint on walls/interior • Home built 1918 – demolished 2001 • No lead inspection; neighbor advised lead on x4 surfaces One Archer St 1998 1997 1993 2001 1991 1992 1994 1996 1999 2000 1995 2002 2003 Year

14. One Example from the Fact Pattern: 6 Hill Street - How Might a Jury Think?

15. Telling the Story… • Juries care about whether the landlord was a good landlord – personalize the Defendant • Jurors definitions of what is reasonable can vary wildly • Juries care about whether the Plaintiff deserves money and whether Defendant deserves to be punished • Juries can be easily offended • Race and poverty are the big elephants in the room…be aware of the pervasive racial and socioeconomic tensions that these cases bring to bear and find ways to defuse them – facts, honest, forthcoming testimony…

16. Keep it Simple!!! • Use of graphics, flowcharts – foam boards, PowerPoint • Timelines and graphics showing interrelationships – do not make jurors guess and do not assume they will remember – they need to see it • Telling the story (opening, closing) should be like telling a bedtime story, not like reading a police report • Practice Tip: • A Word About Foamboards! • Still an effective communication tool especially for timelines, recurring arguments, points of reference…

17. Communicating With Jurors - Tips • Don’t make jurors do head math: Reference age of plaintiffs, not years of residency • Incorrect: “From April 1992 to June 2001” • Correct: “The twins lived at the property from age 6 months until they were ten years old,” or “They lived at the property for 9 years” • Honestly present your case and take ownership of problem areas before the opposition • Plaintiff Practice Tip: • Incorporate burden of proof into the expert testimony (substantial contributing factor) • Explain legal theories e.g. “more likely than not…” • Watch absolutes… • Defense Practice Tip: • Define the source of lead exposure – it needs to be a “Who dun it?” as opposed to a “Not me…”

18. A Word About Source: Substantial Contributing Factor • Juries care about where the lead actually came from • Juries are willing to consider other sources (other properties, environmental sources, old toys) • The Plaintiff must keep the jury focused on the property at hand; The Defense must create any opportunity for discussion and inferences/evidence about other sources • The Defense must open up the argument as to any and all other sources to minimize the “substantial contributing factor” standard

19. Other Jury Considerations • Use of technology to tell a story (especially with younger jurors who are used to tablets, smartphones, computer screens, television) – embrace technology • A picture is still worth 1000 words • Icons • Plaintiff Practice Tip: • Pictures are deadly – photos that show the house in general disrepair creates easy inferences that there were other problems with the property

20. Attempts to Inspect the Property Were Rejected Letters to the Tenant Notice to Tenant Date Proposed Tenant Response 08/07/1991 “…would like to schedule a time to inspect the property” 04/20/1992 “…will be in the area and would like to stop by to inspect” 10/21/1994 “When would be convenient for us to complete an inspection?” 10/10/1996 “….to check on the condition of the property” 20

21. 1.5 qts 15 qts 2 tablets 90 tablets 1 beer 33 beers 3 tsp. 1.25 cups Danger Varies With Dose Substance Safe Dangerous Water Aspirin(acetylsalicylic acid) Beer(ethyl alcohol) Salt(sodium chloride)

22. Voir Dire: How Do you Obtain the Best Jury Possible? • Voir Dire Strategy • Be a good representative • Ask the right questions • Indoctrinate and Eliminate • Preview weaknesses • Rehab or “Hide your keeps” • Anticipate group dynamics • Do your research • Juries can be unpredictable • Juries take their jobs seriously • Juries will bring their bias, life experiences and quirky unpredictable behavior to the process • Juries do not neatly fit into “boxes” based on race/socioeconomic status • Jurors – both black and white – tend to be upset about lead poisoning and lean in favor of the Plaintiff

23. Largest Predictive Factors for Verdict Outcomes …which tend to correlate with: …which sometimes correlates with:

24. Juror Profiles

25. An Analysis of Juror Age

26. Millennial Standards – Is the Bare Minimum Good Enough? “Office Space” 1999 20th Century Fox

27. “How Hard Would It Have Been???” • To have scraped the paint at 6 Hill Street? • To have warned the parents of the twin that their cousin had a PB level 23? • To take all of the lead out of 2 Band Street? • To have slapped a warning label on a defective product? • To have corrected the defective paint conditions at Archer Street? • To have regularly inspected each property? • To pick up the phone and call the tenant – how is the condition of the house?

28. How Voir Dire Can Flush Out Internal vs. External Locus of Control • Ask about job loss – why people lose jobs (individual vs. company) • Ask about why children struggle in school (bad schools, bad teachers, bad parents, lack of effort, truancy)? • Social Media – What are jurors tweeting, retweeting, posting, sharing?

29. You Can Learn a Lot About People From What they Post Online:

30. You Can Learn a Lot About People From What they Post Online:

31. Closing Thoughts • Beware of putting African-Americans in a “box” – many African American jurors are solid for the defense – street smart, no B.S., family providers – grandparents • A word on Batson Challenges – it is waived if not made at time of jury selection! • Always poll the jury – no matter how upsetting the verdict – be sure to gather feedback – even the most baffling conclusions should still be viewed as helpful for future cases • Raise inconsistency in a verdict before the jury is dismissed • Juries may surprise you!

32. Thank you/Questions!!