Originally, a “commonplace” meant a shared experience or belief—a place where people had a common starting point. We have twisted the word to mean boring or mundane, but its original meaning is important to litigators. In building your arguments in both opening and closing, it is important to listen for and utilize the commonplaces of the jury. In voir dire on a case just yesterday, for example, I heard commonplaces like:
- “There are too many lawsuits in general, but the system is set up to give everyone a chance to be heard.”
- “You can’t put a dollar figure on pain and suffering—everyone’s experience is different.”
- “Putting money on pain isn’t going to relieve the pain.”
Not a good day for plaintiff’s counsel, right? Maybe, maybe not. In one respect, these attitudes exist widely and your ability to persuade them away is very limited. You could be very depressed about facing a jury who holds these commonplaces. What if, however, you viewed the beliefs as a place to start agreeing with the jury/decision-maker? What if you knew that your facts would contradict these beliefs and that you now had the ability to create a persuasive moment?
- What we know about beliefs is that when people see contradictory evidence, then a crack or an exception to the belief has been opened, and this becomes a very interesting, persuadable moment in time.
You don’t need to change or challenge these beliefs. You need to accept them and move them a little is all. It is easy to see how a jury could still hold their beliefs above intact, but view your particular case as an exception:
- We might all agree that there are too many suits, that lots of them are frivolous, BUT THIS CASE IS ONE OF THOSE “DESERVES TO BE HEARD” TIMES.
- We might all agree that it is hard to put a dollar figure on pain and suffering, BUT WHAT YOU’LL HEAR ABOUT THE PLAINTIFF’S ARDUOUS RECOVERY FROM A DIFFICULT SURGERY WILL HELP YOU WITH THIS TASK.
- We might all agree that putting money on pain does not relieve pain, BUT THERE WILL BE EVIDENCE TO SHOW YOU HOW IT ACTUALLY WILL FOR MR. SMITH.
After they give you a good verdict, wouldn’t it be nice to listen in to their dinner conversation where they say, “You know that woman who got all those millions for spilling coffee on herself? Well, I was just a juror on a case that I thought was stupid, but then I heard it all and it was really bad what they did to this guy.”
Listen for the commonplaces—you’ll be floored by what you learn. The two opportunities to hear commonplaces are in focus groups and during voir dire. The place to test your ability to open up a crack in a commonplace and move the decision-maker is during a mock trial.
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