Presenting the Business Torts Case to a Jury

• Author: David B. Graeven, PhD
• Pages: 195-210

On rst impression, the particulars in a business torts dispute may seem

clearly in favor of one side, but by no means is the “case closed” and the

verdict a “done deal.” Using carefully crafted themes, a relevant story, prop-

erly prepared witnesses, and strategic jury selection, attorneys can present

their clients’ account of events to optimize success at trial.

I. THE IMPORTANCE OF CASE THEMES

IN A BUSINESS TORTS CASE

The consensus among jury consultants and experienced trial attorneys is

that to prevail in business litigation, it is imperative to develop persuasive

themes. Jury research in a variety of types of litigation has demonstrated

the signicance of themes in organizing information and making decisions.

1

In business torts, the complexity of the case, tediousness of the trial, or

lack of juror familiarity with case issues makes this type of litigation chal-

lenging for trial attorneys. It often requires educating jurors about issues,

terms, and concepts because not everyone has experience with the subjects

being explored. For example, in a personal injury case, people often know

1. Brian H. Bornstein & Edie Greene, Jury Decision Making: Implications for and from

Psychology, C D  P. S., Feb. 2011, at 63.

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Presenting the Business

Torts Case to a Jury

David B. Graeven, PhD

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someone who has been injured, whether on the job or in an accident. How-

ever, they do not always have the same connection with, or even know what

constitutes, a breach of duciary duty or tortious interference with contract.

Jurors develop their own narratives for the dispute. As the case unfolds,

jurors try to t the facts of the case to their own point of view, accepting

more readily the facts that conform to something they can understand or

that helps them make sense of events, and scrutinizing carefully the facts

that do not. Jurors inate the facts on their side and deate the facts that

disagree with their personal interpretations.

The construction of these individual narratives is inuenced by the frame

of reference each juror brings to the case. Life experiences, the experiences

of close family and friends, and even knowledge of current or historical

events can impact and predispose a juror one way or another. Luckily,

these frames of reference are not immutable. Attorneys can employ case

themes to introduce their client’s story and impact jurors’ understanding

and analyses of case facts.

Establishing case themes from the outset helps attorneys build an effective

and well-articulated strategy that tells their client’s story while organizing

facts, events, and evidence, including witness testimony. Themes provide a

frame of reference for the matters at hand, allowing counsel to present the

essence of the business dispute to jurors in a way that they can understand

and relate to, while informing jurors on issues such as responsibility, blame,

and in many cases justice or fairness.

A. Tools for Building Themes

While case theme development is a deliberate and analytical exercise, its

creative aspect should not be overlooked. Metaphors and analogies pro-

vide compelling imagery to supplement case facts. If a large corporation is

being sued by a person, small company, or town, to transform the David

and Goliath image in jurors’ minds, counsel could preface the dispute by

rst acknowledging the disparity between them, then presenting a history

of the company and its origins. If presented effectively, case themes can con-

vey an alternate view and humanize a company, even if it is seen as Goliath.

The basic approaches to theme development include the story model,

attribution theory, and counterfactual thinking. The story model has always

B  T: A P  G   L

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