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In America, we say, "Home is where the heart is."
Everyone wants a home that is dry, safe, and secure, and allows them to
relax and take off the masks of daily life in the work world. For most homeowners,
their home is their most significant investment. Living in the material
world is not easy, though, as many jurors know from their own experience
of rental and/or ownership situations that have gone bad.
These social facts mean that jurors from all
backgrounds bring strong emotions and sometimes painful experiences to construction
defect cases that present a thorny path for the defense to navigate. Big
urban areas on the West Coast like Los Angeles, the Bay Area and Seattle
have seen strong anti-development and slow growth movements arise in the
past ten or fifteen years. The environmental movement, with its questioning
of growth at the cost of the environment, has grown nationwide. These movements
feed into anti-developer bias that can affect jurors’ perceptions
of the parties in construction defect cases. Many jurors are also predisposed
to believe that developers put profits above safety and craftsmanship.
Buildings can always be built better and stronger,
but that does not mean the plaintiffs can rest easy. Jurors are also alert
to overreaching plaintiffs trying to get someone else to bear the costs
of their bad decisions, or to make a profit by exaggerating defects and
the emotional distress of dealing with them. Jurors who aren’t able
to afford a home may not be inclined to give large awards to plaintiffs
they perceive to be wealthy and not in need of compensation. Those who support
growth and development may be predisposed to give a builder or developer
the benefit of the doubt. Many jurors are suspicious of emotional distress
claims in general and will give liability claims less consideration in a
case where emotional distress is part of the package.
Cross-cutting attitudes, experiences and reactions
also can come into play, such as attitudes towards responsibility, experiences
running a customer service oriented business, and reactions to the demeanor
and credibility of the parties in the case. The timing of events is also
usually very important in shaping juror reactions to the case.
The complexity of juror reactions to these
cases makes them ideal for testing in a mock trial. A mock trial also gives
an opportunity to test technical exhibits and test and develop effective
timelines. We were recently involved in a major landslide case in southern
California, for example, where we used the mock trial to test a number of
different exhibits showing the geology of the area. We also tested our defense
story against that of the plaintiffs.
The defense had been focusing on a complex
geo-technical argument about causation that relied heavily on graphics and
animations. The jurors’ focus went elsewhere. One juror expressed
the sentiments of many when he said, "I don’t think our job is
to decide if the developer’s actions caused the slide. Our job is
to decide if the developer acted reasonably."
Finding this out months before trial helped
the defense broaden their focus and build a stronger case. We also found
that the strongest plaintiff jurors were older, educated professionals—that
is, people most likely to be long-term homeowners with a significant emotional
and financial investment in their homes. Using the insights from our research,
the defense team went on to win the case at trial.
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