EP 715 – The Jury Is Out: What Jurors Really Care About (A Father-Daughter Conversation, Part 1)

Episode Notes

Transcript

Announcer [00:00:02 – 00:00:18]

Welcome to The Jury Is Out, a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm, and St. Louis attorney Eric Veith.

Mary Simon [00:00:22 – 00:00:35]

Hey everyone, welcome back to The Jury Is Out. The, the guys who typically run the show are out today, so Everyone gets the pleasure of talking with me, Mary Simon, and I’m here with my dad. He’s trying hard not to laugh.

John Simon [00:00:35 – 00:00:36]

I’m still here.

Mary Simon [00:00:36 – 00:00:39]

I’m still here. Are you nervous that I’m the one who’s leading charge today?

John Simon [00:00:39 – 00:00:39]

Yes.

Mary Simon [00:00:40 – 00:00:49]

Yeah, so I’m sure everyone will really enjoy this. So I listened to, to be very authentic about this, I’ve only listened to a couple episodes of your podcast.

John Simon [00:00:49 – 00:00:50]

I have not— You’ve got to be kidding me.

Mary Simon [00:00:50 – 00:01:07]

No, so I’m not an avid or regular listener because I get that input in my ear as I drive to work every morning. Um, when we talk. So I, I think it’d be interesting today, given that I’m, what, 10, 11 years out? How long have you been practicing?

John Simon [00:01:07 – 00:01:09]

This is my 41st year.

Mary Simon [00:01:09 – 00:01:56]

Okay, so you’ve been practicing, uh, well over as long as I’ve been alive. And so I thought it’d be a nice kind of bridge the gap to talk about some things in trials that you think jurors care about and you think jurors don’t care about. And the reason I ask is because where I’m at in my tenure, sometimes I’m spending hours and hours and hours preparing for something at a trial, and then you very quickly will tell me, yeah, I wouldn’t spend another second of my life thinking about the thing that, that you’re thinking about. So I want to just kind of pick your brain on things that you think jurors really care about and things they don’t. And mostly that’s because everyone obsesses over trial work and trial prep. So first, how many trials do you think you’ve had?

John Simon [00:01:56 – 00:02:13]

So I was thinking about that. I’ve tried— I’ve been doing this for 41 years and I’ve tried between— most years I try a couple or 3, you know, at least. There’s years that I’ve tried 10. I haven’t kept track. I really have not. I would say somewhere between 100 and 200 jury trials.

Mary Simon [00:02:14 – 00:02:19]

So, okay, fair to say you’ve got some— a little bit of authority to speak on the topic.

John Simon [00:02:19 – 00:02:21]

Made a lot of mistakes.

Mary Simon [00:02:21 – 00:02:37]

Made a lot Yeah, so that’s perfect for this. So is there something just off the top of your head that comes to mind that, that is the biggest gap in your mind of what lawyers think jurors care about and what you know they don’t care about?

John Simon [00:02:37 – 00:03:17]

So here you need to approach preparing the case as like thinking like a lawyer. You need to see what the evidence is, what the elements of the case are. You know, what you need to prove to win the case, what the defenses are going to be, how you’re going to undermine those defenses. And then when you start the trial, at trial, it’s a lot different, not a little different. You need to also be aware that you’re presenting your client’s story to this group of people. And jurors don’t think about, you know, cases like lawyers do. I’ll give you some examples. you know, punitive damages, compensatory damages.

John Simon [00:03:17 – 00:04:01]

You know, we lawyers, you know, we fight about that and file motions. The jurors, in my experience, they don’t— you know, they listen to the evidence. And the thing they’re thinking on their minds is, okay, what happened? And if these folks should pay, how much should they pay? That’s kind of what they’re thinking. And so if you tell your story in a way that makes sense at that very high level, You know, here’s what they did. They really didn’t care about the, you know, the plaintiff, or, you know, this, this doctor was trying his best, whatever it is. So I think jurors aren’t as— they’re not technical. You know, you tell the story and it doesn’t matter. Compensatory damages, punitive damages, uh, you know, the specific elements of the case.

John Simon [00:04:01 – 00:04:06]

I’ve said this many, many times before. 2 2 doesn’t always equal 4 in the courtroom.

John Simon [00:04:06 – 00:04:06]

Right.

John Simon [00:04:07 – 00:04:56]

2 plus 2 can equal 8, 2 plus 2 can equal 0. And it’s really— we are so focused on the elements of the case and the legal issues and the objections and how we’re going to get evidence in. And as soon as you start that trial and you walk in that courtroom, the only thing you need to be thinking about— the other stuff needs to be down. You need to be thinking about, what am I going to present? What am I going to say? And how is this group of people going to react to it? You know, you can have an airtight, solid case and you have a client who’s an absolute jerk. You’re not going to do well in that case. You know, you can have a case that’s not so good on the elements and what you need to prove. But, you know, you’ve got a client who’s dynamite, just terrific. And again, I’ve said this many times too before, you know, let me pick my client.

John Simon [00:04:56 – 00:05:16]

I’ll let you pick the facts. It’s human beings, including jurors, decide things primarily on emotion. That’s what I have learned over the course of my career. And emotion is a part of their decision, whether you realize that or not. And the sooner you realize that, the better you’re going to be in representing your client, putting your case on.

Mary Simon [00:05:17 – 00:05:31]

What do you think about how a lot of trial attorneys talk about you can either win or lose your case in opening statement, that jurors already have made up their mind in opening statement? Well, do you think that’s true? Have you seen it? Have you seen it go both ways?

John Simon [00:05:31 – 00:06:05]

You know what, I guess Most of the time, no, but it depends on how bad you mess up. I guess you could do something really, really stupid and lose your case in opening. That doesn’t happen, you know, too often. Usually the jurors are going to wait and hear, you know, some of the evidence. Let me put it this way. It isn’t that somebody absolutely loses their case in opening, but they lay a really good foundation for it. Okay. Like I’ve seen many times where You know, your Uncle Tony, my brother Tony and I were trying a case in Boston years ago, and I didn’t know much about the case.

John Simon [00:06:05 – 00:06:29]

It was an antitrust— it was a patent infringement antitrust case. And Tony was doing the lead. I was, you know, kind of helping him, handing him papers and stuff. And so I didn’t know much about the case. And I listened to his opening and I understood it. And I thought, okay, I know why we’re here, what this case is about a little bit. And there were several defense lawyers. One of them gets up and the guy for like 40 minutes just trashed our client, said he’s a liar and he’s no good, this and that.

John Simon [00:06:29 – 00:06:41]

And as soon as I sat down, I thought, boy, he really set the bar pretty low for us. I think all we need to do is show our client wasn’t an absolute consummate liar and we’re going to come out ahead.

Mary Simon [00:06:42 – 00:06:43]

You know, he’s a decent human being.

John Simon [00:06:43 – 00:07:13]

Right. As long as he’s just not— and as long as he’s not like a criminal, we’re going to win this case. And so that’s what I said to Tony. I said, man, he’s He’s really making things easy. So again, did he lose the case in opening? Maybe, maybe not. But, you know, if you’re going to say something really stupid in opening, you better have the, you know, the goods, the evidence to back it up. And that’s where I see— I see that so many times where either somebody sits down and you don’t know what in the hell their case is about. Like, you know, if you’re the plaintiff, that’s bad.

John Simon [00:07:14 – 00:07:16]

If you’re the defendant, maybe not so. You know, who knows?

Mary Simon [00:07:16 – 00:07:16]

Right.

John Simon [00:07:16 – 00:07:42]

Maybe you’re whatever, but if you’re the one with the burden of proof, you got to put the case on. And, you know, in 30 minutes, 25, 30 minutes, you can’t do a good job of explaining why everybody’s there and what the case is about. All it does is it makes things incredibly more difficult for you. And so can you lose your case in opening? Yeah. But most of the time you just— it’s like, you know what it is? It’s like starting out a race. You’re going to run, you know, 100 yards. Okay?

John Simon [00:07:43 – 00:07:43]

Yeah.

John Simon [00:07:43 – 00:07:53]

And the other person, the person person says go, and you stand there for about 10 seconds. Okay, well, you know, did that lose the race for you? We got to really make up a lot.

Mary Simon [00:07:53 – 00:07:54]

Yeah, you can’t say it didn’t have any impact.

John Simon [00:07:54 – 00:07:56]

You can get behind real quick in opening.

Mary Simon [00:07:56 – 00:08:26]

Well, it even reminds me of one of the law clerks at this office, maybe 2 years ago. It was her first time observing a trial. And I can’t remember if you did opening or if Jonny did opening. But our office stood up, did our opening, and then the other side stood up and gave their opening. And the clerk, at like a lunch break or something, she told me, wow, like the difference between those two, it sounds like they’re trying different cases. Like you’re operating—

John Simon [00:08:26 – 00:08:27]

Two spaceships passing in the night.

John Simon [00:08:27 – 00:08:28]

Yes.

Mary Simon [00:08:28 – 00:08:55]

And I, but you know what’s funny about that is I remember, I can’t remember if maybe one of you guys did say this in close, but the theme of confusion is the negligent party’s best friend came up because it’s like you’re not necessarily, you know, losing or winning an opening statement, but you can— jurors have to have a sense of, you know, who is actually painting an accurate picture of what the trial is about.

John Simon [00:08:55 – 00:09:29]

Well, it’s about credibility. Right. You know, I call it the 3 C’s: confidence, control, and credibility. And confidence and control, that comes from preparation, preparation, preparation, preparation. But, you know, credibility, you know, I’ve never seen anybody win a case and lose their credibility in front of the jury and it be okay. You know, their case came out okay. Most jurors, I think, have an open mind, but some are starting out a little more suspicious than others. The worst thing in the world you can do is misstate something, overstate something.

John Simon [00:09:29 – 00:09:34]

It’s just— there’s no turning back. You lose your credibility, you lose your case. You know, it’s kind of like you lie, you die.

Mary Simon [00:09:35 – 00:10:05]

Well, let me ask this, though, on credibility. What do you do in a situation, and specifically in terms of jurors, keeping the focus on what do jurors actually care about? In the example of the case that you used with Uncle Tony, or another case, how do you address to the jury, whether directly or indirectly, if the other side stands up and is just bashing you, bashing you, your practice, your firm, your client? They’re just speaking poorly and convincing the jury that you are not to be believed.

John Simon [00:10:05 – 00:10:30]

You know, that’s a great sign because it shows you’re doing a good job. I’ve had a handful cases where in closing argument, that’s all they’re talking about. You know, they’re talking about plaintiff’s counsel and plaintiff’s counsel, plaintiff’s counsel. I’d rather have them spend, you know, their 45 minutes talking about me than about their defenses in the case. That’s, you know, that’s great news. But we just, we just tried a case in Chicago, Johnny and I, about a month ago. And again, we tried our best. We were very straightforward with stuff.

John Simon [00:10:30 – 00:10:55]

We didn’t overstate anything. And the other folks kind of did that a whole bunch. I don’t think they were very prepared and knew what really what the case was about. They certainly didn’t— fundamental misunderstanding of what our case, our theories were about. And an opening was the same thing. It was, we came up and said, here’s what we’re going to show in opening, and here’s the evidence we’re going to have. And all of a sudden, out of the blue, the attorney, defense attorney, was like, everything that he said, you know, none of that’s true, and this kind of stuff.

Mary Simon [00:10:55 – 00:10:56]

It’s like the My Cousin Vinny.

John Simon [00:10:57 – 00:11:31]

And it ended up being absolutely, you know, correct. We didn’t overstate at all. And then at the end of the case, in close, I think he just kind of You know, he really went on the attack, and that doesn’t happen too often. But this guy just went on the attack and said— he even went so far as saying that, you know, it was a sexual assault case of our client. And he went as far as saying that the, you know, the bringing of the lawsuit was harmful for the client. Just all kinds of stuff. And really, I thought, went overboard in, you know, accusing us of being dishonest with the jury and all of this. And Johnny handled it perfectly.

John Simon [00:11:32 – 00:12:02]

He gave close for our side. And in rebuttal, he got up and said, my dad taught me many years ago, you know, never ever to call someone a liar in a courtroom, in a court of law. And so he said, for that reason, I’m not going to address anything that Mr. Depp’s counsel said. And then he went on to talk about this, you know, the substance of the case. We did very well in the case. But again, it’s not complicated. It’s simple, but it’s not easy.

John Simon [00:12:02 – 00:12:36]

Just be prepared, know what the facts are, know how you’re going to prove your case. More importantly, know how you’re going to undermine what the other side’s saying. You need to anticipate, what am I going to hear from them? What are they going to say? What’s my answer to that? Okay, what witnesses or documents, you know, do I have to answer that? And you’ve got to know what that is before you go in and not, you know, be like, shocked when you hear something in trial. You have to— in our situation, most often, you know, we anticipate, you know, you better not anticipate them just at trial. You better know when you’re taking depositions.

Mary Simon [00:12:36 – 00:12:36]

Sure.

John Simon [00:12:36 – 00:13:05]

And discovering the case. But it’s all— it really is all about, you know, preparation. And the most important thing is just be yourself and be honest and be straightforward. Jurors individually and as a group are really, really good at seeing through that. You know, they can see if the judge is being fair to you. They’ll figure that out. They can, they can see if, you know, if you’re, if you’re shooting straight with them and being honest. You know, when you need to concede things in a case, concede them.

John Simon [00:13:05 – 00:13:11]

If something’s really bad, yep, that’s, that’s happened. You know, my client spent 10 years in prison for whatever and move on.

Mary Simon [00:13:12 – 00:13:39]

Would you advise attorneys to address that sort of commentary coming at you from the other side, or does it just depend? Because the way that Johnny did it, I mean, that’s very artful. I tried a case with Tim at the end of last year, and the way that we addressed that sort of, you know, any commentary towards the way we were putting on the case, we just said, hey, look, we promise we’re going to do X, Y, and Z. Let’s just— we ask that you just hold— you hold both sides to the promises that they’re making.

John Simon [00:13:39 – 00:13:43]

You know, Mary, do you think you address it or not? I don’t address it. I just let it roll.

Mary Simon [00:13:43 – 00:13:43]

Yeah.

John Simon [00:13:43 – 00:13:45]

You know, I just completely—

Mary Simon [00:13:45 – 00:13:46]

Because the jurors will take care of it on their own.

John Simon [00:13:46 – 00:13:54]

And at that point, You know, at the end of the case especially, most people have made up their individual minds. They still need to make a group decision, but—

Mary Simon [00:13:55 – 00:13:55]

Oh yeah.

John Simon [00:13:55 – 00:14:09]

All you’re really doing is you’re taking the jurors— when you’re that over the top, you’re taking the jurors who are, you know, against you and just cementing them. I mean, you’re just pissing them off and locking them in.

Mary Simon [00:14:09 – 00:14:10]

Giving them ammo. Right.

John Simon [00:14:10 – 00:14:30]

And, you know, it’s all about, you know, being reasonable. Uh, listening, you know, not ignoring, you know, key, key things, especially the ones that aren’t favorable for you. The bad stuff, you gotta, you gotta, you know, acknowledge it and, and explain it, or, you know, at least, at least let the jurors know that you acknowledge it.

Mary Simon [00:14:30 – 00:14:57]

Um, what about— it’s just even funny because I, you know, we spent the last however many minutes just now talking about something the jury cares about. We not once have we talked about substance, anything about case substance. What about exhibits? You know, we like bend over backwards these days spending so much time. Oh my God, the amount of time I’ve spent just, oh, should I make this box bigger on this PowerPoint? And should I edit it in bigger font? And what color? And what color will the jurors care about? And maybe we should do this.

John Simon [00:14:57 – 00:15:00]

And should there be an exhibit? You know what, what do you think about—

Mary Simon [00:15:00 – 00:15:01]

do jurors care about exhibits?

John Simon [00:15:01 – 00:15:40]

It’s important. And here’s, you know, there have been studies. I don’t— I can’t cite you to one that When people hear something, the next day, I think, you know, 80% of what they heard, they don’t remember. If they see something, it might be, you know, 20% or whatever. But if they hear it and see it, they see it as you’re explaining it to them and there’s a good visual, you know, locking it in, what they remember, the amount of things that they remember go way up. And part of it too is, you know, you want to do it in a way where it’s memorable. You know, you want to make the key points in your case memorable. And, you know, you don’t need a visual for every, every time you open your mouth, you got a PowerPoint or a screen up there.

John Simon [00:15:40 – 00:16:19]

You got to talk to people. And, you know, we’ll give you a good example. A good example was, you know, as the case I just mentioned, we tried about a month ago. One of the issues was there was someone that wasn’t supposed to be there in the hotel up near the guest rooms. And he ended up getting into our client’s room and sexually assaulted, you know, our client. And one of the issues, defenses, one of the big defenses was, you know, we do our best, we’ve got security guards, we’ve got cameras, all this stuff. And, you know, sometimes even though you try your best, these things happen. And so causation was an issue, causation.

John Simon [00:16:20 – 00:16:45]

And we spent a lot of time thinking about You know, how do we handle that? And the best, you know, the best fact we came up with was, you know, based on our investigation and what we saw on some of the security cameras, this individual had been in the hotel for about 3 hours and wasn’t really ever detected by the security. You know, it wasn’t— it wasn’t like called until our incident occurred.

Mary Simon [00:16:45 – 00:16:45]

Yeah.

John Simon [00:16:46 – 00:17:14]

And so what we did is We created a board, a whiteboard, old-fashioned kind of whiteboard with a big red number 3 on it, about 3 feet in size. And we just had that sitting there. And the whole theme of our case on that was 3 hours. You know, this person who wasn’t supposed to be anywhere near that, that, you know, in those guest rooms was wandering around them for 3 hours undetected.

Mary Simon [00:17:14 – 00:17:14]

Wow.

John Simon [00:17:14 – 00:17:23]

And that, that visual of the 3, and, you know, it’s how you present it too. We put the 3 up without the jury knowing what— I put it up in opening without them knowing.

Mary Simon [00:17:24 – 00:17:25]

Oh, before you even addressed it.

John Simon [00:17:25 – 00:17:30]

Right. And so, so they’re looking at the number 3 and immediately wondering, what in the hell is this guy talking about?

Mary Simon [00:17:30 – 00:17:31]

The significance.

John Simon [00:17:31 – 00:17:31]

Right.

Mary Simon [00:17:31 – 00:17:31]

Yeah.

John Simon [00:17:31 – 00:17:45]

What’s the significance of this big number 3 staring us in the face? And guess what? That 3 was, was present in different times throughout the trial, bringing it up with witnesses. And in close, it was the same thing, you know, holding up the hand.

Mary Simon [00:17:45 – 00:17:50]

What made you think about putting just the number 3 in front of that? How did that— how did that—

John Simon [00:17:50 – 00:17:59]

It’s attention-getting. Let me ask you this. Do you think it’s more effective to put up a statement on a board saying this individual was in the gust floors for 3 hours? They’re going to be—

Mary Simon [00:17:59 – 00:18:00]

right.

John Simon [00:18:00 – 00:18:03]

They’re either going to be reading it or listening to you. But just something— I don’t know.

Mary Simon [00:18:03 – 00:18:04]

It’s just symbolic.

John Simon [00:18:04 – 00:18:50]

Symbolic, you know, like the number 3. you know, putting the number 3. We had a case years ago with, you know, you talk about visuals, and, you know, they don’t need to be PowerPoints. They can be, you know, all kinds of things. We had a case where a child, this little girl, was severely, severely dehydrated with kidney issues. And they sent her back from the emergency room 2 or 3, I think it was 3 times, and it just ended up being horrific for her. Because it went, you know, her condition went undiagnosed. And we had testimony from some of the medical folks, the doctors, maybe it was one of the experts that— and she was about 4 years old and she had lost— they gave her 2 liters of fluids finally when they caught this and it was too late, to show you how severely dehydrated she was.

John Simon [00:18:51 – 00:19:07]

And what we did in questioning one of the witnesses, I brought up a 2-liter bottle of water and it would— tinted it a little blue, you know, and just put it in this 2-liter bottle. And we sat that at our counsel table for the remainder of the trial.

Mary Simon [00:19:07 – 00:19:07]

Oh, wow.

John Simon [00:19:07 – 00:20:08]

And, you know, just to show you in what— and, you know, was one of the issues was, could they have, you know, it was liability certainly was an issue. They fought that. But the other issue was, even if we had caught it right away, the first time she came into the emergency room, you know, she was so sick, and this was so serious of a condition, you know, she would have ended up had permanent damage to her kidneys anyway because she’s so dehydrated. And again, you know, that helped us tremendously with that water. We had an opioid case that we tried, and one of the visuals we came up with, we looked, you know, we had the records not only from the doctor’s office but from the pharmacies, multiple. You know, this doctor was sending scripts to 6 different pharmacies because some of them said, we’re not going to fill them anymore. Because the amounts were so large. And at one point, I was reading, at one point, our client picked up a prescription from the pharmacy, and they would have needed like a shopping bag to carry the, you know, the bottles of pills.

John Simon [00:20:08 – 00:20:18]

It was insane. It was like crazy. So what we did is we took a jar, a jar, a huge, like 2-gallon jar. I think we filled it up with Skittles.

Mary Simon [00:20:18 – 00:20:18]

With pills?

John Simon [00:20:19 – 00:20:36]

Like those Skittles. To show the number of pills that were prescribed over like an 18-month period. And it was insane. I mean, it was just nuts. So, you know, visuals, one, the old saying, you know, a picture’s worth 1,000 words. Yeah, that’s it. A picture’s worth 1,000 words.

Mary Simon [00:20:36 – 00:20:40]

So, it might just be the one. You might just need the one really good one.

John Simon [00:20:40 – 00:20:43]

One really good one. And, you know, I could think of other examples, but—

Mary Simon [00:20:43 – 00:20:48]

Have you ever thought about one that you spent a an ungodly amount of time on that the jury didn’t care about?

John Simon [00:20:49 – 00:20:56]

You know, we’ve spent a lot of time on ones we didn’t use. I can tell you that. You know, we were like, nah, we’re not, we’re not using that.

Mary Simon [00:20:56 – 00:21:16]

Yeah. You know, and it reminded me too of the Whippets case with the— it really stuck. So it really stuck out to me. I didn’t catch the whole— I didn’t see the whole trial, but I did come in for one of the witnesses who said, we’re no longer selling this product. This product is no longer on our shelves. It’s no longer being sold anywhere. You can’t do it. And then—

John Simon [00:21:17 – 00:21:50]

It was over a holiday. The Monday was a holiday. And then on Friday, the corporate rep testified for the defendants. It was a nitrous oxide case where, where just a horrific situation. This young kid got high on the whippets and ended up, you know, killing our client’s daughter, who was a nurse, drove into a building and killed her. So we confronted the defense, the corporate rep, at this— on the stand. I think it was the one of the executives from the company. They claimed, we sell them to smoke shops, but we tell them not to sell them for, you know, to inhale.

John Simon [00:21:50 – 00:22:11]

It was just a bunch of BS. I said, okay, well, if somebody were still doing that, that would be bad news, right? That would be negligence. It would be criminal if you were selling them to smoke shops. And they said, we’re not doing that anymore. We’re not selling them to smoke shops. And they said that on a Friday. So immediately, as soon as we took a break, we hired— we had called our investigator.

Mary Simon [00:22:11 – 00:22:11]

Okay.

John Simon [00:22:11 – 00:22:24]

and gave our investigator instructions to go to every single smoke shop within a 30-mile radius of the courthouse and to buy 10 boxes of Whippets, these cylinders with the nitrous oxide, from each one.

Mary Simon [00:22:24 – 00:22:24]

And they were there.

John Simon [00:22:24 – 00:22:39]

And, well, it’s even worse or better or worse, whatever you’re thinking. I got a call from him Saturday morning saying, hey, you know, it’s 11:00 and I already have, you know, like a truckload of them. Do you really want me to keep going? And I went, nah, you—

Mary Simon [00:22:39 – 00:22:40]

Like a U-Haul.

John Simon [00:22:40 – 00:23:19]

That’s good enough. So what we did, our visual was this. We called this investigator as our only rebuttal witness, and we put him on the stand without the Whippets that he bought in the courtroom. And so we put him on the stand and said, you know, who are you? And we hired you on Friday, right? And you didn’t know anything about this case before. And what did we ask you to do? You know? And he said, well, you asked me to go to these stores and see if they, they’re selling Whippets, and if so, to buy some and get a receipt for each one. And I said, did you do that? Yeah, I did. And did you bring them with you? Yeah. And so what we did is we had the Whippets on like a dolly or a two-wheeler— it was a four-wheeler.

John Simon [00:23:19 – 00:23:29]

It was a four-wheeler. The wheels almost— they were bulging and broken. We had about 300 or 400 of these boxes, and each one was in a bag with the receipt stapled to it.

John Simon [00:23:30 – 00:23:30]

Oh, wow.

John Simon [00:23:30 – 00:23:59]

So I handed each one of them— we had a table set up in front of the jury, and I would hand each one and say, where did you get this one from? And this is the store I bought it from and how many are in this. And then we’d put it on the table. So we were stacking up the Whippets boxes over a period of about 15, 20 minutes in front of the jury until literally I was afraid the table, the legs on the table were going to collapse. And so we ended up just stopping half, kind of halfway through. But I don’t know, it seemed like it was pretty effective at the time we were doing it.

Mary Simon [00:23:59 – 00:24:55]

That’s a way to get the jurors to care. It kind of sounds like Exhibits are important because it gives the jurors a visual representation of how terrible the conduct is, or to tell— it’s like telling the story through a different medium than you just standing up there talking to them. What do you think— I mean, you’ve said this to me before, and man, it aggravates me so much when you tell me it, because it’s always like when I’m so deep into the very specific facts of the case. But I remember there have been times before where you’ve told me, when I’m just going down a rabbit hole of facts, and I’m thinking about how to put on an opening, and I need to say it this way, and I was thinking about saying it this way, and I’ll come to you and say something. And I remember one time you said, you know, the jurors don’t really care about those facts. And I just— it feels like a gut punch, because I’m like, well, wait a minute, I’ve been sitting here thinking about these 100 facts, trying to get it to 70, and you’re telling me to get it to 3.

John Simon [00:24:55 – 00:24:55]

Yeah.

Mary Simon [00:24:56 – 00:24:58]

So, I mean, do they care about facts?

John Simon [00:24:58 – 00:25:04]

Keep it short. Keep it simple. Keep it short. Keep it simple. And that you can never, never go wrong with that.

Mary Simon [00:25:04 – 00:25:28]

But what about putting a witness on? You spend so much money and time and you’re preparing and, and you’ve got the witness who’s locked in because how you were saying at the beginning, you meet the elements of your case and you know the magic woo-woo language that we need to use in whatever state we’re in. And, and we’re meeting the elements. So we have a submissible case. And that’s all lawyer brain stuff that we’re thinking about. What do you think when it comes to a witness, when you’re putting on a— like, what is the jury looking at that they’re going to care about?

John Simon [00:25:28 – 00:25:53]

You make a good point. You need to make your case from a legal standpoint, from a technical standpoint. You need to elicit the testimony to support it. No question about that. You also need to arm, inoculate, undermine, you know, get your witness prepared for cross-examination to get those out of the way. But, you know, what I try to do with any witness, expert witnesses in particular, is not to cover 20 things, but, you know, to cover 2 things 20 ways.

Mary Simon [00:25:53 – 00:25:53]

Hmm.

John Simon [00:25:53 – 00:26:33]

You know, in other words, remember, and you’ve heard me say this before many times, the 24-hour rule. We have a 24-hour rule in that I always ask the, you know, we’ll be, we’ll be in the middle of trial in the second week or first week, whatever, and one of the lawyers I’m working with will say, well, you know, what do you think about this witness? How’d I do with this witness? And, and I say, wait till tomorrow. And And the next day I say, what do you remember about that witness that you put on? Okay, what do you remember? And they’ll remember 3 or 4 things. And I say, well, you prepared and asked the questions. So imagine what the jury remembers. You’d be lucky if the jury remembers that that person testified.

Mary Simon [00:26:33 – 00:26:34]

Yeah, that’s so true.

John Simon [00:26:34 – 00:27:15]

So you really need to make a couple good points and make them very, very Memorable. Take 1 or 2 or 3 points you want to make with that witness and make them in the most effective way that you can. Make it in 4 or 5 different ways, use visuals so that, you know, the person, when they’re off the stand, they will remember who that was, right? And, you know, you can do the same thing too with an expert witness on the other side. We had a product case. It was an under-ride guard case that we were trying in St. Louis. And the other side hired this expert that, I mean, this guy was qualified. He had a, you know, 2-inch thick CV and all these articles.

John Simon [00:27:15 – 00:27:29]

He was a biomechanical guy. And what we found out was that this very brilliant man, no question brilliant, was, you know, failed his basic engineering test to become a licensed engineer.

Mary Simon [00:27:30 – 00:27:30]

That’s a bruise.

John Simon [00:27:30 – 00:28:04]

This guy was in the top you know, institutions in the country. And, and you could just tell, who knows, you know, why that happened. And I didn’t know why that happened. But I knew from looking at an earlier deposition that he had failed that basic exam when he was a very young engineer. So what I decided to do, and I did in a very polite, nice way, I said, so when did you take your engineering test? And he said, this year. And I said, was that the first time or the second time? And he just kind of froze because he was very— he was a bad witness. He was very arrogant. And he’s one of these folks that he was very smart and knew he was very smart.

John Simon [00:28:05 – 00:28:13]

And he knew he was smarter than anybody else around. And he literally started arguing with me, saying he didn’t fail it.

Mary Simon [00:28:13 – 00:28:13]

Oh.

John Simon [00:28:13 – 00:28:15]

He said he didn’t fail it. He just didn’t pass it.

Mary Simon [00:28:16 – 00:28:16]

Okay.

John Simon [00:28:16 – 00:28:41]

And so my whole point is that went on for about 10 minutes with this guy. And at closing argument, the only thing the jury, I think, remembered about that guy was He failed that test. He’s the guy that wasn’t honest about failing the engineering. Yeah, even we couldn’t even get him to admit that he failed the engineering test. So again, it’s, it’s what, you know, not making 20 points with each witness. You got to make your case, but making 2 really good points.

Mary Simon [00:28:41 – 00:29:08]

What do you think? What do you think about obviously witness credibility, 24-hour rule? That’s important with witnesses and jurors. Do you think it’s a spectrum, or could you easily say whether or not you think it’s more important for Specifically with experts, that your expert is someone who is easier to like go grab a cup of coffee with, that they’re a likable person, or that they have the 2-inch CV?

John Simon [00:29:09 – 00:29:10]

Likable. Likable.

Mary Simon [00:29:10 – 00:29:11]

Oh, hands down.

John Simon [00:29:11 – 00:29:32]

Hands down likable. Hands down. I, you know, there’s a, there’s a doctor that I have used in, in several cases, in emergency room cases, and he’s in Chicago. And I’ve really— I first— he’s about my age. And I think I first used him, you know, 20, 25 years ago. He has a 2-page CV, a 1 or 2-page CV.

Mary Simon [00:29:32 – 00:29:33]

Oh, 2-page?

John Simon [00:29:33 – 00:29:34]

2-page. That’s it.

Mary Simon [00:29:35 – 00:29:36]

Like his name and his address?

John Simon [00:29:36 – 00:30:04]

Right. And I remember a case where we were going up against doctors from, you know, Ivy League schools, and they were the head of departments and, you know, traveled the world giving seminars. And each one of them had, you know, hundreds of articles. And, and so this guy, my expert, was, you know, just, as he said, I’m just an ER doctor. That’s what he did his whole life. And I put him on the stand. Last time I used him, I put him on the stand and said, so, doctor, my— this is how I qualified him. I said, doctor, what do you do? What kind of doctor are you? Emergency room.

John Simon [00:30:04 – 00:30:38]

And then you’ve— that’s all you’ve done? Yep. And I said, and how long have you been doing that? And he said, 42 years. And I said, doctor, All the patients you see, you see them in the emergency room setting? Yeah. And I said, is there any estimate as to the number of patients you have seen over the course of your career in the emergency room setting? And he said, you know, one time a few years ago, I was asked that. And I think the number is somewhere between 20,000 and 30,000. And I said, okay, doctor, let’s talk about—

John Simon [00:30:38 – 00:30:38]

Moving on.

John Simon [00:30:39 – 00:31:03]

You know, so here we had, here we had somebody who has seen 30,000 patients in the emergency room setting, and he’s got a one-page CV. I’d rather have that person. The reason I used him is he’s very, very good. Not only is he smart, he’s likable, and dedicated, you know, he’s very, very likable, knows how to explain things, integrity, person of integrity, truthful, honest, just a great, great witness.

Mary Simon [00:31:04 – 00:31:18]

So I don’t think jurors are at all I think that’s a great place to stop in this conversation. We can pick back up with a part 2. Again, for our listeners, I’m Mary Simon. I’m joined with my dad, John Simon, and we’ll see you next time.

John Simon [00:31:22 – 00:32:01]

The Jury Is Out is brought to you by the Simon Law Firm. At the Simon Law Firm, PC, we believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and expertise to other law firms. experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case, offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 314-241-2929. And if you enjoyed the podcast, feel free to share your thoughts with John, Tim, and Eric at [email protected] and subscribe today. Because the best lawyers never stop learning.

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