Saturday, May 16, 2009

Defining Your Case Through News Article Comments

Every trial practice class we take tells us that we have to devise a "story" of our case. The story is what we teach the jury (or judge) as we try the case. Each witness and exhibit builds our story to lead the jury to believe in its truth and, ultimately, to rule on our favor.

But how do we know that our story will resonate with a jury? That's always been more of an art than a science. We tell the story to staff members, other lawyers - anyone who will listen. If we have a client with a little money we might do a focus group. If we're lucky enough to have a client with a lot of money (and an important case) we might even hire a jury consultant to help us craft both the story and to develop a profile of the "ideal" juror. Still, we never know until the verdict comes back.

Here's another thing to add to our toolbox - one that won't cost your client a cent. Most newspapers and TV stations are now posting their articles online. And most of the online web sites permit readers to post comments telling what they think of the story.

If an article is written about your case, pay close attention to the readers' comments. They come from the general public - the same general public that makes up your jury pool. I am undecided about the ethics of posting comments of your own or otherwise interacting with the readers - I lean toward it being unethical but haven't researched the issue - but there is no harm in looking at what people say and then crafting your ultimate case presentation accordingly.

In fact, I'll go out on a limb and say that, sometime in the next ten years, we will see an attorney somewhere held liable in malpractice for presenting a case without taking readers' comments into account.