Jennifer Keller – Business Behaving Badly? Telling Jurors "It's a Company" Isn’t Enough

Voice Over (: 00:02

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Harry Plotkin (: 00:20

So Jennifer, I wanted to know because a lot of our viewers obviously have trials against companies and you're always dealing with a company on the other side, although often you're also representing a company yourself. How do you deal with attitudes toward companies and jury selection? How do you deal with that issue? What's your philosophy on it?

Jennifer L. Keller (: 00:37

Well, if it's company against company, the first thing is you want to know what kind of company. Is it a David and Goliath situation where your company's a little upstart trying to be crushed by a much larger competitor? And that was the case in Mattel versus NGA. The other thing you want to look at is what does your company actually do? So the company I represented on the big Lanham Act verdict that we got almost 300 million had our opposing counsel sanctioned three million by the court for misconduct, basically for lying to the court. That was a case where our client is in the business of trying to prevent cancer. Our client specializes right now in blood only tests to detect colon cancer. So no tissue is needed. They have pioneered this way of finding circulating tumor DNA in the blood that is being shed by cancerous tumors and detecting cancer at very early stages up to stage 1A.

(: 01:32

So instead of having to have a colonoscopy or a very invasive test that requires tissue, they can take a simple blood test and tell you if you have colon cancer in what stage. This is a huge, huge improvement for cancer patients. And particularly the test that was an issue in this case is a test for recurrence of colon cancer. So let's say you've already had colon cancer, you've had chemo or radiation and your doctor is concerned about whether they've got it all. And so a simple blood test can yield that information and the blood test can be back in five days. So instead of having to have tissue wait up to six weeks the whole time you're lying there at night wondering, did they get it all? This test can tell you right away. And then it also can inform the doctor as what kinds of treatment are going to be most effective.

(: 02:20

So obviously, we had a company that was a hero to many people. And the company that on the other side, which had tests for recurrence of colon cancer, but they needed tissue, which one of our experts said in up to 30% of cases you couldn't even get for various reasons, or you wouldn't have enough. Or if you had enough, it somehow still wasn't adequate. Those people had nothing. And the other people had this prolonged wait. So the fact that that company was trying to, through false advertising, keep our company from coming to market or being effective or having oncologists have confidence in it or get Medicare approval. As turned out, they were trying to prevent that behind the scenes. This was fairly shocking. And so it wasn't just company against company. Yes, our company is publicly traded. Yes, the founders of our company have been very successful and have made a lot of money, but they've done it pursuing an altruistic goal of detecting and ultimately preventing cancer.

(: 03:17

So you look at what your company does. In the case of MGA and Mattel, it was company against company, but it was a smaller privately held company that was competing by trying to, for the first time, produce dolls that were multi-ethnic. So every little girl could see themselves in those dolls as opposed to Barbie. So again, we had an immigrant founder who had come to the US with nothing, but $700 in a blanket and a one-way ticket. That was also a compelling story. So just saying it's a company isn't enough. What company? What does the company do and who are the people in the company? And I also think it's critically important that you consider all along who your company representatives are going to be. Who is going to be the face of the company?

Dan Kramer (: 03:59

So you're trying to do that all in your mini opening or is this just kind of how you're mentally approaching it before you go to jury selection?

Jennifer L. Keller (: 04:06

You do it throughout the trial. You start in the mini opening, you weave some of those themes in and voir dire and you set the stage in the mini opening. I've got a case right now. I shouldn't go into too many more details about it because it's coming up for trial in a couple of weeks, but it's the same thing. It's a David and Goliath situation where Goliath thought they could take advantage of David and breach contracts all over the place and they wouldn't have any choice because the one company's a big multi-billion dollar market cap and the other one's a small, closely held family company. Yeah, you weave those themes in throughout. And every once in a while, you've got two behemoths battling each other. Again, you need to look at who are the people. And I always talk to jurors about corporations like they're these big nameless, faceless companies that sometimes they are, but they're made by people.

(: 04:54

Who are the people? What did the people say? What did the people do? Is there more here than just profit motive? Some companies are very good to their employees and others are horrible to their employees. Some treat their employees like their fungible commodities and others treat them like they're valuable assets. And I think you need to really understand your company first and you need to know who's the good guy here.

Dan Kramer (: 05:16

So it's really interesting, Jennifer, and I'm really glad we have you on because every single guest and most of our listeners, they represented individuals, right? Individuals that sue big corporations.

Jennifer L. Keller (: 05:25

And so do I sometimes, by the way. For example, I represented Kevin Spacey in his trial in New York. I've represented Snoop Dogg and I've represented individuals no one's ever heard of.

Dan Kramer (: 05:34

But mostly people that were most famous in the '90s, it sounds like.

Harry Plotkin (: 05:37

The sweet spot.

Dan Kramer (: 05:39

With that said, but it is interesting because like I was saying, we represent almost exclusively individuals. I mean, at least that's what I do. And a lot of our listeners and a lot of our guests. One question I have for you is you obviously want to humanize the corporation, put a human face to it. We try to do the opposite when we talk about the defendants. And I'm wondering for you, is it you try to humanize your client and then the other one's the bigger, batter corporation on the other side. Is that generally what you're doing? Because it's got to be an interesting way to talk about corporations as being evil, but you represent a corporation. So how do you deal with that to try to get the jury to say, "This is the big, bad fish on the other side. We're the good guys, but you're also a corporation at the same time."

Jennifer L. Keller (: 06:18

Well, corporations are made of people. You have to look at who the people are in that corporation and you have to look at what the corporate values are. One of the things that's very useful when you've got a corporate defendant who's behaving really badly is they all have mission statements and they all have statements of values and they have statements of ethics. And it's always fun to go dig those out and use those in cross-examination, especially when they've blatantly violated their own precepts. I did that very successfully with the CEO of Mattel, and it was fun watching him squirm over that. Not all corporations are the same, just like not all people are the same. Just like you may have a grocery store that's part of a big chain, but you love the people at that grocery store. You love the produce manager. You love one of the checkers who you talk to all the time.

(: 07:03

They stock things for you, they find out that you like. And then there might be another grocery store that is just unfriendly and cold and only cares about taking your money. They might both be big chains, but one of them gets your loyalty because of the people in it. And you have to ... I always look at that. For example, there may be somebody when you're picking your 30 witnesses in federal court who are going to be the face of the company or going to speak for the company on various issues. Many times the company will want to present somebody who's very knowledgeable, who everybody in the company thinks is great because they've mastered every last detail of everything. Maybe they don't come across very well though. They don't come across as friendly or nice. Maybe they're a little on the arrogant side. And there might be somebody who's not half as bright or half as educated on every last aspect of the company who nevertheless is going to be better to be deposed or to testify at trial on behalf of the company because it's somebody who will connect with the jury.

(: 07:57

And so I always pay a lot of attention to that in my trials.

Dan Kramer (: 08:01

So as your approach to jury selection, again, it's not ... You obviously don't ... Because a lot of times we try to get people who hate corporations, we want to prehab. We do a lot of pre-having on the plaintiff's side, obviously, to protect those jurors from getting offer cause from the defense trying to get them obviously to say, "You hate all corporations, you can't be fair to our corporation." So how are you then approaching kind of just like your jury selection in terms of jurors?

Harry Plotkin (: 08:26

Can I tweak that question a little bit, Dan? I think when you're representing a company that is a good company and a hero type company against a company that's doing a lot of the things that people who are angry at corporations is exactly why they're angry. In those kind of cases, I like to ask a lot of questions about companies and trying to get rid of people who aren't anti-company because ... And sometimes the lawyers will say, "Well, we represent a company too. Why are you asking these questions?" But it's like the jurors who hate companies are going to be mad at that bad defendant and probably appreciate your hero company. So how do you handle it when you have a hero company? How do you handle attitudes toward corporations when you know at the end of the day your company is going to come off really well and this other company is going to come across like the typical terrible stereotypical corporation?

(: 09:06

Well,

Jennifer L. Keller (: 09:07

I think when you've got a hero company, it's almost like when you're representing an individual, you've got the good guy. And so when people hate corporations, they hate corporations because they think corporations do evil things, don't care about people, only care about profits. And if you know that the defendant company or the plaintiff company, whichever is going to be that just like that and your company is not, then it's not necessarily a bad thing to have people who hate corporations on that jury. I think you can't be too rigid about it. You really have to think about what's your case all about? And if your case is a case where both corporations have done some things, maybe not evil things, but both corporations have behaved badly, you have to worry about the juror who's going to just say a pox on both their houses. And in those cases, a lot of times I look for engineers who are going to be very bloodless and weigh and consider the facts and not be out to grind anybody or punish anybody.

Dan Kramer (: 10:02

Well, so that was my next question. What kind of jurors are you most fearful of in that scenario that we've been talking about?

Jennifer L. Keller (: 10:08

Well, I don't know that there's any juror I'm especially fearful of. I evaluate each juror individually. I've learned that over time. I've had so many experiences with jurors that other people thought would be terrible, who I thought would be good and turned out to be good. I've had so many jurors who on paper don't look good, but I had a great feeling about that person. I connected with that person and I saw something in that person that I thought was going to be good for our case that I don't have a lot of hard and fast rules like other lawyers do. I really don't. I remember when I was a new public defender and they told us, "You never want Asian jurors because Asian jurors are pro- law enforcement." I said, "Really? All Asian jurors?" And that was the mantra. And my peers used to routinely kick people off who Asian.

(: 10:53

And I'd say, "Well, gee, there's a big difference between somebody who perhaps was interned in World War II. They might have a different attitude toward the government." And even if somebody's come from a formerly communist country, some of them might think that that wasn't so bad. They at least had a lot of personal safety. Others might think it was horrible because the government stripped them of their freedoms. So why did they come here? Was it just for economic advantage or was it for freedom? You have to try to find out more about people before you just made these broad judgments. I think that is a way in which I tend to be a little different and I may drive a jury consultant or too crazy at times because I tend to ask more personal questions, maybe get a little more out of people, get them talking, find out where they're really coming from.

(: 11:36

When I teach trial ad, tell jurors that one of the things that always struck me about my parents, my parents both lived through the Great Depression. They both had families that lost everything. My mother's father lost his little chain of three drug stores. He was a pharmacist. He couldn't stand not giving people medication that they needed because they didn't have any money. And so he went bankrupt. My father's family, they lost the family firm that had been in their family for generations. So both of them went through the same experience. But what was amazing was their attitudes about it, their reaction to it was so different. So my father's reaction was fear and keep your money under the mattress and don't trust anybody and don't trust banks and don't ... He just lived in fear of losing everything again. And my mother's attitude was eat, drink, and be merry.

(: 12:23

For tomorrow, it may all be gone. Live it up, live for the moment. And so one of the things I like to look at with jurors is, okay, you've had this bad experience, but how did it affect you? And I found as a criminal defense attorney, for example, you might have two people who had maybe you had a burglary case, got two people who had been themselves victims of residential burglary. And one person just decided every single burglar should be strung up and executed and I got a gun and the next guy that comes in, I'm blowing them away. The other juror might say, "Well, it really taught me to be more responsible about my personal safety because I realized I was leaving my house unlocked a lot. And maybe I could have a camera, maybe I need to be less obvious about my possessions." And they were completely different.

(: 13:05

The latter juror I'd love to keep on a criminal case. The former juror, of course, you want to get rid of. But I feel the same way when it comes to corporations. Why do they hate corporations? What is it about corporations that they find appalling? And does it have to do with any personal experiences that they've had? Sometimes you have somebody who was an employee who was let go in a headcount reduction, as they love to say, like it's Marie Antoinette. That person may have a real ax to grind with any corporation. Somebody else who just has general feelings that corporations only care about the profit motive, which is largely true. I mean, not only, but that is what they're supposed to care about is value for their shareholders. Other people on the jury tell you they hate corporations and then if you ask them if they own any stocks and bonds, well, oh sure, I own quite a few stocks.

(: 13:55

Well, so they own corporations, they own shares of corporations and they want that corporation to make money for them.

Dan Kramer (: 14:01

That's why I love ... I mean, I think that you nailed it on many different ways. I think we've talked a lot about your first point about not judging any book by its cover. I think it's just we've taught that and we will continue to beat that drum. I mean, even just, and I've taught that, I teach that in my jury selection class, but even this last trial, I would say to Claire like, "Well, what do you think about X, Y, and Z?" Because she's like, "Well, I got to hear what they have to say." And I know that's the right answer, but I still sometimes get caught just thinking, okay, well, they're in this group, so therefore they're probably going to side with this plaintiff. But it's just like, it's not true. The data doesn't bear that out. But on your-

Jennifer L. Keller (: 14:30

When I was 19, I was called for jury service in Berkeley and I was very far left. I was a major anti-war person. I was out protesting every chance I get. I had been teargassed by law enforcement. My boyfriend had been shot off his bike with rubber bullets by law enforcement. The only thing the defense attorney asked is if any of our family members had ever been in law enforcement. And after my grandfather lost his farm, he had to go to work as a police officer in the city of South Bend where he was most proud of never having even unholstered his gun in 30 years. He was a negotiator. He was a peacemaker and he would talk people off the ledge. He was very proud of that. But all they asked me was, "Any member of your family?" I said, "Yes, my grandfather." They didn't even ask me how well I knew him, which was not very well.

(: 15:18

He died when I was pretty young and that was it. I was gone and it was a police brutality case. I would've been the perfect juror for the plaintiff. I was ready to vote right then. I mean, all I had to do was hear what the case was about, but they let me go. And I never forgot that. I thought later, what a serious mistake. They had that one data point and that's all. They didn't say, "Tell us about your grandfather or anything."

Dan Kramer (: 15:43

That's why I love ... And this is a question that really Harry and Claire have both been giving me and it's like they've been teaching. It's just really just asking, "Well, what are your feelings about? And then X, Y, Z." I think if you just lay that out there without anything else, then you're going to get what you're talking about, Jennifer. People, what are your feelings about law enforcement? That's it. Just that. And then you get the feelings out there without ... No one's pegged one way or another. If you just start whatever your topic is, like my case has to do with speeding, what are your feelings about people that go over the speed limit? Just that. I asked that question. We had some really good answers in this jury selection, but I think if you just start any question with that, you're going to find out a lot more Jennifer Keller back as a college student, you would've found out that she really does not like the police at this moment in her life or thought that they use excessive force, right?

(: 16:24

But that attorney made- You

Harry Plotkin (: 16:25

Know what the problem is, Dan, is that a lot of lawyers think, some of them have been taught that you can just guess about an experience. And that's what Jennifer taught such a great lesson. Don't guess at how a juror, what they learned from an experience. But I think a lot of lawyers that I work with, I notice some of them, they love the puzzle. They think it's like, "I want to guess." And it makes me smart to play this puzzle. You don't have to do it or you're making your job so much harder by doing it because so often two jurors with the same experience can just take it totally opposite ways. I've seen it in a million different kinds of cases. I mean, in employment cases, people who have had been really badly mistreated by employers once or maybe many times or laid off or whatever, some of them are super cynical about you.

(: 17:02

That's how it is for everybody. Same thing with people who've had an injury or pain and suffering. And some people who've had pain and suffering are like, "It's worth a ton." And some people are like, "Everybody's got it. What's the problem?" So I'm always, yeah.

Jennifer L. Keller (: 17:12

Yeah, exactly. Well, that was another lesson I learned as a public defender. Usually if somebody had a DUI, the DA would always want a prior DUI themselves and say it's a DUI trial. The DA would always want to excuse them. But I used to ask them, "Well, tell me about that. How do you think you were treated?" And some people would say it was horrible. They were awful to me. They didn't listen. I was very unfair. And other people would say, "Well, I was shit faced and I deserved it and it was probably good for me and interrupted a bad path I was on. " I agree with the, tell me your feelings about ... In fact, I had a judge one time, not too long ago, Grouse at a break, he said, "Ms. Keller, I can't even tell sometimes if we're in voir dire or a coffee clatch." I said, "Well, that's one of the nicest things anybody's ever said to me because-

Dan Kramer (: 17:59

What's a coffee clatch?

Jennifer L. Keller (: 18:00

What's a coffee clash? A coffee clatch is like in the old days when almost all women were stay-at-home moms, they'd have these little coffee meetings in each other's houses. They call it a coffee clatch.

Dan Kramer (: 18:10

Good to know. Our listeners are learning new phrases. I like that.

Jennifer L. Keller (: 18:12

Yeah. Well, I'm old. Hey, come on. I'm 73 years old. That's

Dan Kramer (: 18:16

A

Jennifer L. Keller (: 18:16

Good one though.

Dan Kramer (: 18:17

That's a good one.

Jennifer L. Keller (: 18:17

Yeah. I mean, I thought that was a real compliment because the jurors were all chatting away with each other and with me. And they knew there was no wrong answer and that we were just getting to know each other. I find myself cringing sometimes when I listen to lawyers asking closed-ended questions, yes, no questions. Or I also cringe when they ask open-ended questions of people that they should be smart enough to realize they don't want to get talking because the other side's going to hear what they have to say and excuse them. A couple times recently I've been called for jury service. I've actually served on a jury, which was interesting in and of itself, civil jury. I've been called a couple times for jury service and I've had to sit in the audience and listen to a lot of voir dire before I finally got bounced or they just picked a jury and they didn't get to me.

(: 19:00

Most lawyers are just terrible at one. They're just terrible. I want to go up at the brink and grab them and say, "Okay, now you're doing this wrong."

Dan Kramer (: 19:07

Literally, Jennifer, this is why we created this podcast because when I was coming up as a young lawyer, there's really not good education there. There's no one really knows how to do it. It's shocking. And I think it's the most important part of trial.

Jennifer L. Keller (: 19:19

It is. If you pick the wrong jury, it's over.

Dan Kramer (: 19:22

It doesn't matter if you have a great opening statement. If you pick people who are biased against your case, you're screwed from the start.

Harry Plotkin (: 19:28

And I don't blame those judges who come in and they're hostile. They have all these rules that's trying to stop you from doing things because probably 90% of the lawyers they've seen are awful at jury selection and they do things they're not supposed to do. And some of them come in and they don't trust plaintiff lawyers. It's like, I don't fault you for doing it because a lot of them probably do try to get away with things and they just precondition the whole time. But yeah, that's why it's so important to know what you're doing because you can turn a judge around pretty quickly. Your judge in this last case was first, I think it was the first civil trial, but he initially tried to tell you you can only ask questions that go to cause, right? But it ended up working out.

Dan Kramer (: 19:59

He literally kept saying bias, but I mean, he was letting me go. I mean, he was like, again, and this goes back to my first point about just being organized. But again, if you show you're not wasting time though, right? I mean, I think that's the key is making sure that-

Jennifer L. Keller (: 20:11

And you're not repetitive and you're not boring.

Dan Kramer (: 20:13

Yeah, don't be boring. Honestly, I tell my associates just like number one, just don't be boring at all because then they're not going to want to open up and talk to you. The defense attorney went up and she just asked close-ended question, it was just one of those where no one talked, no one shook their hand. It was just like, whoever thinks they can't give me a fair shot. It just constantly ...

Jennifer L. Keller (: 20:32

Yeah, I mean, it's just ridiculous. This whole thing, can you be fair? Well, once in a while, people will say I can't be fair. But I still remember once I was watching my former law partner, Jack, early, he was picking a jury in a case where he had a Vietnamese defendant and it was a criminal case. So he was trying to get to bias against people who were Vietnamese or Vietnamese American. And he asked this one guy some questions. The guy said, "I don't have any biases against anybody. I'm not a racist." And Jack said, "Well, do you know, have you ever met or gotten to know any Vietnamese people? " And he said, "Yeah, when they started infesting my neighborhood, I got to know quite a few."

Dan Kramer (: 21:08

How long ago was this?

Jennifer L. Keller (: 21:09

Oh God, must have been 20 years ago, but it was amazing. And the guy was so lacking in self-awareness, he didn't even realize what that meant. And he still then denied being racially biased.

Dan Kramer (: 21:20

Yeah, but I could be fair. And the judge says, "Nope, the cause he said he could be fair."

Harry Plotkin (: 21:24

That's why I always teach lawyers, stop relying on your jurors to self-diagnose their biases. You have to do that. If you just say, who's biased? Oh, nobody raised their hand. I mean, oh, was this guy lying? No, they don't know. I mean, they often are totally clueless about it.

Jennifer L. Keller (: 21:38

We like to all think we can be fair, but we all have biases.

Dan Kramer (: 21:41

And I think that's part of the big introduction. I mean, a lot of us do is that I tell them based on all their answers they gave to the judge, you all sound like you can be very fair people. But in this case, it's not about just being a fair person. It's about being 100% neutral in this particular case. That's what that means.

Jennifer L. Keller (: 21:56

Well, one of the easy examples that I use with jurors, I say, I like to think that I can be fair and I like to think that I can give unbiased opinions, but I really hate green clothing, even though I'm Irish. I think I look terrible in green clothing, a green dress. It makes me look like I have jaundice. And so I've just got this thing about green. So if you were to walk in and say, "Oh, give me an opinion. How do you think this looks on me? I'm thinking about buying this dress and it's green," I would probably, without even realizing that was the reason, say, "Eh, I don't think it looks good on you. " And I wouldn't think I was being biased, but I was. There's nothing wrong or evil about that. It's just a natural reaction that I have. And so I use that to try to tell them there's no shame in saying that you don't like the color green.

(: 22:42

But if this is a trial about a green dress versus a red dress and which one is better, I'm the wrong juror for that trial. I mean, it's that simple, or at least I tell them it's that simple.

Dan Kramer (: 22:52

So in your cases, is one of the biggest bias points, I imagine if two big companies going at it for tens of millions, maybe hundreds of millions of dollars, is that going to be a big bias point that you are worried about, especially because you're the plaintiff representing the corporation asking for lots of money that some jurors may say the people are starving out there. Why we care about giving these corporations just tossing hundreds of millions of dollars around? Is that one of your worries ever in jury selection or no?

Jennifer L. Keller (: 23:18

I've seen a big change over the years in that regard. It used to be that the jurors, I think, were much more concerned about big dollar judgments. I've noticed over the last, especially five or 10 years, not so much at all because they've heard these huge amounts being tossed around all the time now, all these billionaires running around and they've seen judgments that are huge. They've seen news articles about the kinds of money that corporations make, Monsanto, the amount of money they make on Roundup. And I don't think so anymore. I think maybe there are some jurors still like that, but I think there's been a sea change that I have felt, tectonic change where the jurors are not so worried about giving huge amounts of money anymore. In fact, I've had jurors say later, "You didn't ask for enough."

Dan Kramer (: 24:02

And do you think that philosophy applies to most of our listeners like myself who represent individuals when we ask for tens of millions of dollars for loss of quality of life, for example, do you think the philosophy applies the same or do you think it's, and maybe this is a question for Harry, would it be a similar jury that doesn't award giving a big verdict for a corporation? Tens of millions of dollars would be the same type that would be willing to give a lot of money to an individual or do you think it matters?

Harry Plotkin (: 24:23

I mean, there are differences. I mean, I think some jurors have an issue giving, why are we making this person rich over things that aren't going to help? Whereas businesses, I think they're more likely to say, "Yeah, a million dollars is nothing to a big company." They don't blink twice about ... If they see another company is stealing $200 million in profits, so they give that money back.

Dan Kramer (: 24:41

I also think this is why the engineer, Jennifer would be more willing to keep an engineer because they will be emotionless about it almost. They'll just be like, "This is just the accounting of it. This is what makes sense." Whereas someone like that, I may be, again, I'm not worried about all engineers, but I would be a little more worried about someone who would not get a little more emotional about a verdict and someone's lost a quality of life, for example. The engineer would give a big verdict in Jennifer's case, whereas in mine, they may not, if that makes sense. I don't know if that-

Jennifer L. Keller (: 25:06

Well, it also, one of the advantages that you have in these big commercial cases is you generally have very good damages experts. And so the jurors are given a very detailed discussion of just how much money was lost by your company by the conduct of this other company or how much the other company made and should have to disgorge. I don't have experience asking for large sums of money on behalf of individuals. Although I did have one case where I got a $350 million verdict for my client and individual against another individual, and we ended up settling that for about 120 million in the bankruptcy court. That was a commercial case also. I don't have experience trying personal injury cases. So pain and suffering and things like that, which are less quantifiable and more emotion driven in some cases, I would imagine that that would be a whole different creature.

Dan Kramer (: 25:55

But they are anger driven. And we talk a lot about this, Harry, is that these verdicts, I mean, I tried three cases towards the end of the last year or two, I guess, where the defense accepted liability and was pretty reasonable. It was really hard for me to get the jury fired up in that case. In this case that I'm trying, they're making mistakes that are going to inflame the hell out of the jury and I'm going to push on all those buttons. And so these big verdict, it probably applies a lot to your cases too. I mean, I imagine you want to push those anger buttons and that's not just a simple calculation's just you really want to push those anger buttons too.

Harry Plotkin (: 26:24

Yeah, you're going to inflate a disgust toward the other side is going to drive damages, even if they're financial damages.

Jennifer L. Keller (: 26:29

What I see a lot in my case is we sometimes take over quite frequently. We take over cases where big firms have had the case first, and they have never really given a lot of thought to jury trials because most big firm lawyers don't try many jury trials. And so they point everything towards summary judgment. The witnesses have been told to say they don't remember, they don't recall, they don't recall, they don't recall, because they don't want to give up anything for summary judgment. It's a problem for us when we take over those cases to try to salvage the case. But when it's the other side doing that, it's just absolutely wonderful. It's like you said, it just infuriates the jurors. We had one guy who, I played his answers. I played the video deposition of his answers for half an hour before he testified who was the CEO of this company, claiming not to recall anything, including at one point being asked, "And what was your job during this year?

(: 27:23

What was your job title?" And he said he didn't recall and he was the CEO. And so-

Dan Kramer (: 27:27

It's the best.

Jennifer L. Keller (: 27:28

Oh my God, it was fabulous. So I know exactly what you're saying. Sometimes the worst thing is if the other side concedes the obvious issues, you'd rather have them fight and fight and then you pop up all the deposition testimony that just blows them out of the water.

Dan Kramer (: 27:42

Well, with that, let's take a quick break. I want to thank our sponsors and first and foremost, LawPods for making this possible.

Harry Plotkin (: 27:48

All right. So I'm super excited to talk about one of our newest sponsors, a company I've wanted to work with for a long time, Focus Graphics. They are specialists in demonstrative trial graphics. Basically, you as attorneys, you tell the story of your case and you rely on Focus Graphics to do the visual storytelling. They do animations, they do medical illustrations, things like that. And the thing that makes Focus Graphics different, for those of you who haven't heard of them, I'm sure most of you have, but they are the only visual company that actually focus groups their work. So obviously I love that kind of thing. They actually test it with jurors and see what jurors think and tweak it based on what feedback they get, which is something you should be doing anyway. And so that additional service ensures that your jury is not the first to see your visuals.

(: 28:27

They have an in- house team of animators, illustrators, visual consultants to ensure that your medical and forensic and engineering visuals are all accurate. They do those super detailed medical illustrations, but they also do demonstrative, persuasive ones as well. I know they've worked with many of the lawyers we've had on our show already and some of the ones upcoming. They tell me over 20 billion in verdict and settlement space on their work. And they work with Nick Rauley, John Marco, Samantha Teal, who's on our episode who just got that $300 million verdict, Tom Dickerson, Jude Buicile, Kurt Zeaner, Kale Paris, Lourdes Armis. And of course, Sean Claggett, because Sean is part of the company and his brother Seton runs the company. If it's good enough for Sean Claggett, I'm sure it's good enough for you guys. I would encourage you to work with them. They're playing a focus.

(: 29:07

If you want to get in touch with them, contact Seton Claggett. His email is seaton@focusgraphics.com and give them a try because they're terrific and we can't use enough help in our trials. Trial is a team thing. So excited about focus graphics.

Dan Kramer (: 29:19

All right. Welcome back. Thanks again to our sponsors. All right, Harry, let's jump back into this.

Harry Plotkin (: 29:24

Sure. Yeah. I mean, one question I want to ask, Jennifer, that is a big dividing point between some lawyers. Some lawyers are terrified of ever having anyone they perceive as a leader or a strong juror on their jury. They're like, "Just get rid of the leaders because they could just kill you. " But on the other hand, I find that if you're trying to get a big verdict in a case, it doesn't matter if it's a business case or a personal injury case or employment case, you want people with a really strong conscience who are capable of being outraged. There's some jurors, I always teach this all the time, there's some jurors who maybe they have no biases, but they just aren't capable of being outraged and they just don't give big verdicts. What's your view on leaders and how do you balance the right type of juror that you're looking for?

(: 29:59

Do terms of, are you scared of jurors with strong opinions or how do you handle them?

Jennifer L. Keller (: 30:03

No, I want the strong jurors with strong opinions who I can win over. You're never going to get a bunch of people who all agree with you. Best you're going to do usually is a couple of leaders, a couple of advocate jurors for you, and then frankly, a lot of sheep that they can lead. The strong personalities, there is something to leadership. We've seen it and we see it in our own society right now where you have leadership at the top, rude, demeaning, nasty, and we've seen an increase in rudeness, nastiness and demeaning of people across the board. Leadership matters and leadership on juries matters too. The jury I served on, of course, the jurors all wanted me to be the foreperson. And I said, "No, I'm not going to be the foreperson. I don't have any more experience as a juror than you do.

(: 30:45

I think we should pick somebody who's maybe run some meetings." And we picked somebody who had been the president of her PTA and she was a very good foreperson, but she wasn't particularly a strong leader, but we had one guy on the jury who really had developed strong opinions during the course of the ... It was only a three-day trial. And wow, I watched him win over the ... It was 12 angry men and women by the time he was done. So I like to have a couple of people that I identify with and I think identify with me and I think will be leaders. I don't see how you win big verdicts without. Somebody's got to be back there pitching. And I mean, a lot of the closing argument is arming your advocate jurors with what they need to win over the others. By then, they already know what they want to do and you have to arm them with material that they can use.

(: 31:34

So I disagree with this idea that you just want a bunch of bland people. I have heard people say that, and I haven't seen any lawyers win big verdicts taking that position, but a lot of big firm attorneys feel that way. They feel anybody with strong opinions should go.

Dan Kramer (: 31:48

Negative leaders are the worst, number one. You got to get the bad leaders out. Number one, I'm okay with see bad follower. Good leader is the best by far.

Jennifer L. Keller (: 31:57

And really a lot of picking juries, there are two sides to it. There's jury selection, there's jury deselection. And the deselection is as important as selection. Getting rid of those advocate leaders are going to kill you.

Harry Plotkin (: 32:09

There's jurors that I'll see all the time in jury selections and you're going, "You don't really need to talk to that juror very much. They're going to be very quiet. They're going to be a follower." Even if they're sort of against us, I'm not worried about it. They're not going to lead anybody. And obviously you have to, if there's somebody is a leader, there's a really dynamic juror or someone with strong opinions, you definitely spend more time with that person and try to get a sense of, are they going to be with us or against us? Are the values aligned with our case? But I think at some point, if you feel like I feel like this person has good values for our case, you can't be so risk averse that you go, "I just don't know for sure, so let's strike them." I mean, it's like doubling down on Levin and Blackjack.

(: 32:42

If you think that a leader is more likely to go your way, don't worry about the downside risk because the upside risk is just so great. You got to just go with-

Jennifer L. Keller (: 32:50

I totally agree. The ones who scare me, and I often get rid of are the jurors who I think have a lot of leadership potential, but they're being cagey. They just won't give you anything. It's a game to them to keep you from finding anything out. And they act like you're invading their privacy if you want to know anything. Those people I almost always get rid of. I just don't want the cagey people. There's a reason they're being cagey and it's not a good reason for me.

Dan Kramer (: 33:11

We had a terrible juror. She's an OBGYN, but she just had so much animosity, but she wouldn't say it verbally, but she would emphasize certain words and then roll her eyes. And I've never had a juror just seem so angry at us. I mean, just her wordings of just little words that she would say, "Damages are exuberant and just clearly very angry." But then I was like, "Well, so are you open? Are you not open to the idea? If we prove it, it's in the many millions of dollars." And she'd be like, "I'm open to it. " Would say it very curt and roll her eyes. It was uncomfortable for a lot of people. But thank God the judge and we argued cause and I said, "Your Honor, the case law is clear. You can evaluate the totality of it all. " The way she said things, her body language, I made a record about how she was staring at us, how she would look at my side.

(: 34:03

And even though if you read the transcript, it maybe not be made clear. And at first I thought he wasn't going to give it to us because he's like, the way she would say certain things, I think it could on paper look like that, but I saw the way she was talking to you. I saw her body language. And so I agree this is not the right case for her. She's not going to be impartial. So good on him, frankly, for reading her body language, which they're entitled to do. But Jennifer, it was similar. It was like she was very cagey and just a terrible juror. You could just tell even though she wasn't giving us those words, we wanted on cause.

Jennifer L. Keller (: 34:31

Well, as the daughter of a physician, I can attest that most physicians are not crazy about being on juries. They regard it as a total waste of their time. And if they feel they're better than that, and they should be out treating sick people and not sitting here doing that. Although I've had some doctors on my juries who've been good. I've had a couple lawyers on my juries that have been good, including in the spacey jury. She was the pro bono coordinator for the federal court in the Southern District of New York. So she wasn't really practicing law. Everybody says, "Oh, you should kick off every lawyer. Lawyers are always going to be terrible." I don't agree with that either. You have to find out who they are. What do they do? What do they think?

Harry Plotkin (: 35:07

And that's a great point about the cagey jurors because a couple things that I teach, one is when you ask a question like, "What are your feelings about this? " And sometimes the juror will say, "Well, I'll follow what the law says." And then they try to cut it off and you go, "No, I totally get that. I'm sure you will, but what are your feelings about it? " And then they dodge it again and you go,

Jennifer L. Keller (: 35:23

"Okay,

Harry Plotkin (: 35:23

They're withholding something." I mean, jurors are not good at lying. That's how you know that they're withholding something because they were just refused to answer a question. And sometimes I'll get jurors who say, "This is my favorite answer," when they'll go, "Well, ask a question of everybody, what are your feelings about this? " No right or wrong answers. And typically there'll be at least one juror who'll say, "Well, I think that's a stupid question and it's oversimplifying things." And you go, "No, it was a great question. I identified you, somebody who's..." I mean, you hated the question so much, you obviously would just give the worst answer.

Jennifer L. Keller (: 35:49

Well, or what's the relevance of my feelings? What's the relevance of that, counsel?

Harry Plotkin (: 35:54

If you agreed with what Noah was saying, you would say, "Absolutely. I agree with it. " But the fact that you're being cagey and you don't want to talk about it and you're hostile to a question tells you that's just the worst. We talked a little bit about some of the terrible voir dire you've seen, Jennifer. Anything else that comes to mind? We always love to hear about things that you see other lawyers do, especially a lot of lawyers do that you feel like, "What are they doing? It's just a huge mistake."

Jennifer L. Keller (: 36:15

Yeah, I've seen lawyers cross-examine a juror that they don't like. Okay. We already know you're going to get rid of them. So why are you cross-examining this person with hostility as if this person is a snitch who's going to convict your client because it alienates the other panelists. I mean, some of those people are going to put themselves in that person's place. They're going to identify more with the juror than they are with you. And some of them might've befriended that person out in the hall. They might've been sitting around talking about their kids' soccer team, whatever. I don't get why you do that when you're not going to get rid of the person for cause. That's clear, but you're going to use a peremptory. So why bang on them and get them be nasty to them? I

Harry Plotkin (: 36:57

Think they think they're going to get them for cause. If I just work harder and I push harder, I'll get one more for cause, but is it worth alienating everybody else?

Jennifer L. Keller (: 37:05

But sometimes it isn't even that. Sometimes you just see the lawyer's ego get in the way and they just decide, "I'm going to show that this person's full of shit." And they just start to grind away. And I've seen that a couple times. Note to self, don't ever do this. And if it's

Harry Plotkin (: 37:20

On the other side, you're probably not objecting because you're going, "Keep doing it. "

Jennifer L. Keller (: 37:23

You're sitting there watching it thinking, "Yeah, okay." And then joke about it. I stand up when it's your turn and say, "Boy, I'm sure Glad I'm not sitting up there being asked questions by Mr. Smith here.

Harry Plotkin (: 37:35

Whoa." There was a case that you just ... I love the stories of just like, "No, don't object. I could object, but I'm not going to object. Let them hang themselves."

Dan Kramer (: 37:42

I think one juror spoke. Literally, every question was just, "Okay, I don't see any hands. Let me go to my next question. Anyone, anyone?" It's like literally just, I didn't hear anyone talk. There was just no-

Jennifer L. Keller (: 37:51

Dead air.

Dan Kramer (: 37:52

Yeah. I mean, I think one of the questions was like, "Are there any laws that the judge would read that you would not be able to follow?" And you just saw a lot of confused faces. And one juror who I really love this woman, she would've been great for us if they kicked her, but she's like, "I don't really understand all laws. Which laws in particular are you talking about? " But then when they refilled the panel, she asked the same question again and no one understood it at all because this just is so overbroad in general. But I've seen many defense attorneys do that. They're just not asking anything specific. It's way too vague in general.

Jennifer L. Keller (: 38:21

I think sometimes when you can't get the jurors talking, I mean, I'm not sympathizing with that defense attorney, but sometimes when you can't get the jurors talking, a little self-disclosure helps talk about, "Oh gosh, I know what it feels to be like on the hot seat." Now I've even told jurors, I've served on a jury myself and wow, all of a sudden I felt like I was really on the hot seat when I was being asked questions, so I can sympathize, but I got to ask them. And that loosens them up a little bit. I had one time where I was picking a jury and you guys wouldn't necessarily relate to this necessarily, but I was going through perimenopause and I was having terrible hot flashes. I wish it was terrible. So I'm standing there in voir dire and suddenly sheets of water start coming down.

(: 39:03

My face is turning beet red and I look up and the jurors look terrified. They think I'm having a heart attack. I walked over to council table and I grabbed a bunch of Kleenexes, mopped myself up and I looked up and said, "Ladies and gentlemen, what can I say? I'm a woman of a certain age." And they all started laughing. And the next thing people were like, "My mom went through that. Oh my God, it was horrible. Oh, my wife's going through it right now. I know exactly what you're talking about and we're so glad you're okay. We were worried about you. You can't believe it. It was like the best icebreaker of all time." I thought, wow, I have to bring some chili peppers to chew on in the future to try to get that going again.

Dan Kramer (: 39:41

Yeah. Being vulnerable is the best way to get people feeling comfortable enough to talk.

Jennifer L. Keller (: 39:45

Well, yeah. And letting them know you're a human being. The other thing I see lawyers do is use way too much jargon, use lawyers and ask them questions like, "Have you ever had occasion to observe blah, blah, blah?" Who talks that way?

Dan Kramer (: 40:01

Or using preponderance of the ... So she kept talking about preponderance and I was like, "Oh man."

Jennifer L. Keller (: 40:06

That kind of stuff. I think a lot of times young lawyers do it because they think it makes them sound professional to use grown up lawyer terms. But of course, all it does is puts a wallet between you and those people. You're saying, "I'm smart and I use all this big words and this lingo that you don't understand." I had a mock one time I was doing just as a favor. It wasn't my case. And they ended up removing this guy as lead counsel and hiring me. I was just playing a role in the mock and the lawyer who was a big firm guy started out his opening by saying, "Ladies and gentlemen, this case is simply sui generous." The jurors looked like German shepherds that had heard a high pitched sound. They were all like, "What's that? Sue generous. They're looking at each other." I mean, that just amazed me that somebody would do that.

(: 40:51

It means like one of a kind. It's its own creature. It's a legal term. Without a Black's Law dictionary, most lawyers wouldn't even know anymore what it is. But yeah, I mean, what an amazing thing that was to hear that.

Harry Plotkin (: 41:04

I remember one time I was watching the lawyer on the other side treat voir dire like a deposition where instead of just asking a question would just establish foundation with the jurors. It was incredible. I was like, "Just ask them, have you ever done this? " And when you did, it was like, you didn't need to establish this to ask the question. It amazed me that these jurors were just being ... You could just see them being turned off.

Jennifer L. Keller (: 41:21

Such a waste of time. Well, one thing that I like about commercial cases is usually the judges, usually they'll let you use a questionnaire. And the questionnaire can give you ... Even judges who are reluctant to do it will often let you at least have a limited number of questions. And you can save so much time of your bear time and voir dire if you've already got a lot of those answers. And people are so much more candid on paper than they are in front of a bunch of other people. So I love the idea. We have one right now, we have a trial coming up where the judge says, "Oh, I've never given a questionnaire before." But I knew that he had spent his career as a DA and he had been assigned to criminal courts where very seldom does anybody ask for a questionnaire other than maybe a death penalty case.

(: 42:02

And then he had done family law where there are no juries. And I had known him for a long time, not well, but I knew him. And pretty much all of my big civil cases, I've gotten a questionnaire and it really can help. It can really cut down on ... A lot of times, instead of wasting time in the courtroom here, Your Honor, and wasting the whole veneer's time with people, the lawyers could even agree in advance a lot of times on excusing people for cause. And so I brought him around and he's actually going to give us a decent questionnaire. I find questionnaires are very helpful. And then you can follow up. You can say, "I saw in your questionnaire you mentioned such and such. Could you tell me a little more about that? What was that like for you to go through?" Well, you can really cut to the chase.

Harry Plotkin (: 42:42

I use questionnaires a lot of times when we're kind of closing the loop here to bring up experiences that may be relevant. And then you can spend your voir dire, like Jennifer talked about, exploring how those experiences have actually shaped how they view things instead of just guessing. But if you just put in the questionnaire and you just make assumptions and you don't have to do all that phishing in voir dire. Anyone ever experienced this or that? You can just talk to them. Voir dire is about talking to jurors. Yeah.

Dan Kramer (: 43:02

All right. With that, the great Jennifer Keller, thank you so much. It has been a truly great, awesome episode. You are the first business litigator, true business trial lawyer that we've had on the show. And there's a lot for all of us to learn. And hopefully other business litigators are listening to how they can pick better juries and actually get in the courtroom and try cases. So thank you so much. Thank you to our sponsors, thank you to LawPods, and we'll be back at it soon with some more great guests. So thank you.

Jennifer L. Keller (: 43:30

Well, Dan and Harry, I'm going to have to start listening myself and pick up a few things. One of my mentors told me one time that he was like 75 years old. He was still going to all these seminars. And I said, Marshall, you're such a great trialer, but here you are. He said, if I go for a whole day and I pick up one thing, it was worth it. And that's how I feel. So thanks to both of you. I learned a few things, Dan, from you.

Harry Plotkin (: 43:52

That's a first. That may be a first for one of our guests.

Dan Kramer (: 43:55

Yeah. Yeah, that's a first. We've been having this almost a two-year-old podcast. You're the first person that's learned something from me, so I'm glad. All right, thanks again. Yeah, see you.

Voice Over (: 44:04

If you're enjoying the podcast, the best compliment you can give us is sharing it with a colleague who would find it valuable. For all the best glips from the podcast, follow us on social media. You can find those links in the show notes. Have a jury selection story to share. Email us at podcast@pickingjustice.com, and we may address it in a future episode. Until next time, remember, you're not just picking a jury, you're picking justice, produced and powered by LawPods.