Key juror truths, critical juror questions to answer

By Karen Lisko, Ph.D

Excerpted from Proven Jury Arguments & Evidence

Breach of contract cases may well involve paper (to which jurors pay close attention), but the bigger part of the case for them typically centers on the relationships between the parties. For jurors, these cases are far less about breach of contract and far more about breach of trust.

I.         Jury Preconceptions in Breach of Contract Litigation

§8:01       Key Juror Truths in Breach of Contract Cases

Regardless of the venue where a breach of contract case is seated, jurors share in common many biases in this type of litigation. These biases have been borne out through post-trial interviews with actual jurors from breach of contract litigation, in privately funded mock trial research, and through a review of the academic literature.

Juror Truth One: If it isn’t in writing, the plaintiff is in trouble. Cases abound where the plaintiff alleges breach based on the verbal context surrounding written contract language. However, when a written contract exists in some form, jurors tend to fault the plaintiff for having failed to getmore in writing before entering the agreement.

Juror Truth Two: Even when a breach of contract case involves a little guy versus a big company, jurors still focus on the sophistication of both parties. Most jurors assume a company comes to the bargaining table with greater sophistication than an individual. However, two things affect plaintiffs’ seemingly clear-cut chances to prevail in a David and Goliath fight. First, if jurors conclude that David is sophisticated, they will escalate their expectations of the plaintiff to have acted in a more informed manner. Second, our research has found that because so much anti-corporate bias permeates present-day society, jurors expect the plaintiff to take more responsibility and to act with greater caution in dealing with the company, rather than trusting that terms will be correctly interpreted after the fact.1

Juror Truth Three: Jurors make sense of what they believe happened in a case by finding a coherent story to make sense of the evidence they find to be most important.2 If you do not provide enough of a coherent or compelling story, jurors will create one for you (or for your opponent, depending on which evidence they attach themselves to). Certain jurors will use deliberations as a forum for “reenacting” the story of what happened, either through examples from their own lives or through piecing together the incomplete facts of the case in a way potentially unintended by either party.

Juror Truth Four: Since ambiguous language in a contract is often the cornerstone of the dispute, jurors frequently look at other parts of the contract to make sense of the disputed terms. Given that tendency, jurors often resent counsel who try to focus their attention exclusively upon the language in dispute. Many want the opportunity to review the larger contract to put the more specific language in context. Some will use contract language neither side focused on to make sense of the case.

Juror Truth Five: Jurors’ own practices in reading contracts translate directly to their views of the contract in dispute. Our private research has found that jurors who read contracts word-for-word in their own lives tend to favor the defense. Jurors who skim contracts for meaning or who habitually sign contracts without reading them tend to lean in favor of plaintiffs in these kinds of disputes. The logic behind this pattern rests with the fact that detail-oriented jurors are less comfortable accepting subjective interpretations of concrete language. Jurors who skim contracts or who sign contracts without reading them often look harder at the spirit in which the contract terms were reached, holding the plaintiff to less of a burden to have negotiated language for every contingency.

Juror Truth Six: Jurors typically rely first on their own common sense view of language before turning to the paid experts’ interpretations. The jury is comprised of contract experts with varying levels of experience. Virtually every juror has signed a contract, ranging from a DVD rental agreement to a sophisticated business transaction. Contract jurors’ deliberations tend to focus on their common sense interpretations of the language. They then tend to match the fact witnesses’ and experts’ conclusions to their own.

Juror Truth Seven: When no written contract exists and breach of oral contract is asserted, jurors are keenly interested in third-party accounts of the intent of the contract, given the self-serving motives of the parties.Eyewitnesses in breach of contract cases are especially persuasive when they give detailed testimony about what they heard in contract negotiations.3 Irrespective of litigation type, eyewitness testimony is typically quite powerful with jurors.4 Many jurors are prone to finding eyewitness testimony to be more accurate than it actually is (even when evidence exists to undermine that accuracy5). That propensity to place great weight on eyewitness accounts largely stems from two factors jurors have relayed to us in post-verdict interviews. First, jurors are hungry to hear the account of the misconduct from a neutral party—much like a tie-breaker. Second, they want to be able to merge a contemporaneous account with an after-the-fact reconstruction.

Juror Truth Eight: Jurors can be influenced by simple word choices within oral argument or witness testimony. Jurors take notice of the language counsel and witnesses use when speaking. The more tentative or equivocal the language, the more jurors doubt the credibility of the speaker. The more powerful and definitive the language, the more jurors believe the presenter.6

§8:02       Jurors’ Key Questions in Breach of Contract Cases

Once jurors start hearing about the case, they tend to have repetitive questions that are critical for counsel to answer. Of course, in many instances, the answers to those questions are inadmissible. Despite that fact, if these questions never get satisfactorily answered during trial, jurors have been known to send the question to the judge for clarification during deliberations and/or to fill in the gaps on their own—even if the issue was ruled inadmissible.

Jury Question:      How did the two parties first meet? What led the parties to enter contract discussions in the first place?

Jury Question:  Do earlier drafts of the contract exist to help demonstrate the evolving logic of the parties in eaching the ultimate contract terms?

Jury Question:  Did either party have the option to include more specific contract terminology? If so, why did that party/those parties fail to add clarifying language or additional terms?

Jury Question:  Did either party enter into prior similar written agreements with others?

Jury Question:  Did the parties have prior agreements with one another, either verbally or in writing?

Jury Question:  What kind of educational or training background do the parties have that would position them to know something about entering agreements with companies?

Jury Question:  What is the industry standard for use of contracts in this situation?

Jury Question:  Are there parts of the contract that contradict other parts?

Jury Question:  How much time did the parties spend negotiating the contract terms? Who was involved in the negotiations?

Jury Question:  To what extent did either party employ an attorney during the contract negotiations?

Jury Question:  Which side initiated the first contract draft? Upon what did the party base that first draft?

Jury Question:  Were any individuals (other than the disputing parties) privy to the details of the contract                                                                 negotiations?

Jury Question:  Were any individuals (other than the disputing parties) privy to the details of the contract dispute?

Jury Question:   What story do internal e-mails or documents tell to bolster the parties’ claims about the intent of the contract or the method of negotiation?

Jury Question:   What verbal exchanges occurred during contract negotiations regarding the intent of the contract  or contingencies if the contract terms were not met?

Jury Question:   What has the interpersonal relationship been like between the parties? To what degree has that  relationship contributed to the dispute at hand?

Jury Question:  What respective power did the parties have in negotiating the terms of the contract?

Jury Question:  What options did either party have to avoid entering an agreement at all and to instead enter an agreement with someone else?

Jury Question:  When did the relationship between the two parties first start to sour? Did a turning point occur where one or both parties decided the relationship was no longer salvageable?

Jury Question:  How, if at all, did the parties try to work out their dispute prior to entering into litigation?

Jury Question: Aside from money, what does the claimant hope to gain from the litigation?

Karen Lisko, Ph.D., has over two decades of practical experience in hundreds of cases across the country in the areas of civil plaintiff, civil defense, and criminal defense ranging from simple to complex litigation. She provides expertise in courtroom persuasion, strategic jury selection, case theme development, persuasive opening statements, and closing arguments, and assists with witness preparation for deposition, arbitration, and trial. She has trained many attorneys, both individually and in groups.

Dr. Lisko is the former president of the American Society of Trial Consultants (ASTC), and she is a lecturer in the Trial Consulting Certificate Program at TowsonUniversity in Towson, Maryland.  She is the author of Proven Jury Arguments & Evidence, from which this article is excerpted.