Who Will Be Present At A Jury Trial?
Jury trials are public, so anyone can be in the courtroom. The reality is not what’s shown on TV, with the gallery packed. In fact, if there is anyone in the courtroom, the question is who are they and why are they there. I’m a fan of watching other jury trials, so I’ve have sat in on random trials, and people asked me why I was there (to which I responded that I was just observing). With Zoom, it is easier to watch trials because I don’t have to go into the courthouse. The judge, the defense team, and the plaintiff’s team will be present at a jury trial. There will also be a bailiff who swears in witnesses, a clerk who will accept evidence and mark exhibits, and a court reporter who will take down every word in real time. Perhaps most importantly, the jury will be in the courtroom. In Florida, we have six jurors on civil cases and sometimes have a couple of alternates present.
The plaintiff will be able to testify, and is probably the most important witness to their case, because no one will know the case like they do. I’m a big believer in using lay witnesses to help support my clients’ claims. A lay witness is someone who doesn’t know much about what actually happened, such as the mechanism of the crash, but they will know the plaintiff as a human being, including how they were prior, during, and after the incident. The lay witness will be able to speak to the plaintiff’s character and reputation.
In this way, the lay witness will be very helpful, because in every single case, the defense will either flat-out call the plaintiff a liar, or will insinuate that the plaintiff is a liar, and that they are not truly injured. To combat such accusations, we use lay witnesses. Lay witnesses can be friends, family, coworkers, the laundry mat guy, or anyone who can tell some stories for about 15 or 20 minutes about how the incident has affected the plaintiff’s life.
We find that lay witnesses are the most persuasive, because they generally don’t have a dog in the fight. For example, if the defense’s medical witness says that the plaintiff should have healed after 12 weeks, then we would call in our client’s supervisor and ask them about their work ethic and character and how they didn’t miss any time, despite having to take breaks and medication to manage their condition. We would highlight that, based on their behavior, our client doesn’t sound like someone who would lie.
Similarly, we might point to the fact that our client attended every single one of their doctor’s appointments and did everything that the medical providers recommended. We would use that to show the jury that the plaintiff hasn’t behaved like someone who has fabricated their injury. We bring in people who don’t have a dog in the fight, and we really call out the defense for what they’re doing, which is calling our client a liar, a thief, and a cheat.
Lay witnesses are also very good at walking us through the damages in the case. For this, I will use another metaphor called “pilot light pain.” I’ve taken this term from very good attorneys because it does a good job of describing the type of pain that many of my clients experience. A pilot light is always flickering and sometimes flaring, and in the same way, my clients’ pain is always there, and sometimes it is flaring up.
We bring in lay witnesses to talk about how our clients are constantly having to decide between doing something or not doing something, like taking a slightly longer walk and “paying the price” the next day, or playing catch with their son knowing that they will be in a lot of pain the following morning. Pilot light pain isn’t the type of pain that always and entirely precludes someone from taking part in some sort of activity; the activity can usually still be done, but the experience is different, and the looming threat of more pain or a “flare up” is always there.
The same is true when it comes to loss of enjoyment of life damages. Florida jury instructions contain a line for loss of enjoyment of life—that’s how important it is. We treasure pleasure, and life is hard. For loss of enjoyment of life, we can still go to the movies and enjoy the movie, but the experience is different because we might be constantly shifting around and stretching to try to mitigate the pain. We can still go to church services, but the experience is different because we might be distracted from what the preacher is saying, and worried about needing to stand up and stretch, but not wanting to be rude.
These are examples of things that clients can still do, but that have been impacted by their injury. Lay witnesses are great at talking about these types of experiences and helping the jury understand how the plaintiff’s life has been affected by their injuries. If we ask our client how life has been different, they might say that they can no longer go golfing or ballroom dancing, and the reality is that most jurors won’t really care about the plaintiff’s inability to dance or golf once a month, because that really doesn’t have any value. The value is in the little things, like not worrying about causing a flare up of neck pain while brushing your teeth.
Lay witnesses are people who are really close to the witness, and who make trial exciting by talking about real life. Lay witnesses turn a trial into a television show or movie, unlike an expert witness who uses words that the jury can’t even understand. Lay witnesses are real people telling real stories that matter—stories that illustrate the plaintiff’s experience with their injuries.
We will also call expert witnesses (such as doctors), but so will the defense. In most cases, the testimony provided by our expert witness will be cancelled out by the testimony provided by the defense’s expert witness, which will leave the jurors to focus on the lay witnesses. For this reason and others, the testimony of lay witnesses is crucial to the plaintiff, as it will paint a credible, compelling story that benefits the plaintiff.
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