Thoughts from the Trenches #2: The Dangerous Trap of the Pro-Plaintiff Label

It is common to speak of jurors as "pro-plaintiff" or "pro-defense." However, in my experience, this binary framework misrepresents reality. Relying on it can lead to devastating strategic errors at trial.

Many jurors who are labeled as "pro-plaintiff" are far more accurately described as "anti-defense." This is not a distinction without a difference. An anti-defense juror does not necessarily harbor deep empathy for the plaintiff, nor do they automatically accept the plaintiff's version of events. In fact, in mock trials, these jurors will frequently conclude that a plaintiff is grossly exaggerating their injuries or has been blatantly untruthful in testimony. Yet, these jurors will still vote against the defense. Notice the nuance: they are not voting for the plaintiff; they are voting against the institution.

The Anti-Defense Worldview

Anti-defense jurors operate from a deeply engrained worldview that evaluates large institutional and corporate entities with inherent suspicion. Their primary focus during a trial is not on the conduct of the plaintiff, but on the policies, procedures, and systemic actions of the defendant company.

For defense counsel, this means that a strategy centered on "destroying the plaintiff" will often yield limited returns. Anti-defense jurors view the individual plaintiff as a mere placeholder representing all employees or the public at large. Their motivation is rooted in the belief that if the plaintiff was treated inappropriately, similar misconduct is likely happening elsewhere within the organization. This focus on larger societal consequences makes them dangerous to a defense. They view their verdict as a mechanism to send a message and force corporate culture or procedures to change.

Even if they view the defense's actions as merely sloppy or negligent rather than intentional, the resulting behavior is nearly identical. They will implicitly shift the burden of proof, demanding that the defendant prove a negative. Ultimately, they tend to award significantly higher damages—and a higher frequency of punitive damages—even when they openly acknowledge that the individual plaintiff may not deserve the windfall.

In venues nationwide, these mock jurors frequently ask if damages can be directed somewhere else, such as a charity, rather than to the plaintiff. When informed that the law requires all damages to go strictly to the plaintiff, most of these jurors will still award the money anyway. To them, punishing the company is far more important than preventing a windfall to an undeserving plaintiff.

The Multi-Track Approach

Doubling down on the arguments that worked for your pro-defense jurors won't win over anti-defense jurors. In fact, hammering the same points usually just makes them dig in deeper. Instead, I’ve found that a "multi-track" strategy is far more effective. You have to run two distinct narratives simultaneously. While Track One satisfies your core defense jurors on the facts and the law, Track Two must directly address the anti-defense worldview.

Very often, pro-defense jurors see the lynchpins of the anti-defense position as completely illogical or irrelevant. As a result, they simply repeat the arguments and facts that persuaded them in the first place. They rarely step back to objectively analyze the opposing view because they don't give it any legitimacy—meaning they fail to self-generate effective counterarguments.

Identifying these lynchpins and developing the optimal means of countering them is most effective if guided by "juror input". These lynchpins are often not legally relevant, often morally driven, objectively trivial or never overtly stated. Ideally, this knowledge should be baked directly into your strategy early on—well before trial—during depositions, expert reports, and even the conclusion of discovery. Traditionally, “juror input” comes from live mock trials often done one time and late in the process for logistical and cost reasons. Today, Courtroom provides the trial attorney with the ability to gain an advantage by having “juror input” available early, ongoing and cost effectively. In conjunction with a live mock trial or on its own, counsel has flexibility.

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