Graphic photos may sway jurors - or upset them Pictures can boost damage awards

0By Nora Tooher The Daily Record Newswire BOSTON, MA -- Graphic injury photographs can increase a plaintiff's chance of a favorable jury finding. But some photos can be so gruesome that jurors become angry at the plaintiff's lawyer for displaying them. Research by Bryan Edelman, a senior trial consultant with Jury Research Institute in Alamo, Calif., demonstrates that jurors who view graphic images are more likely to deliver plaintiff verdicts. His 2007 study -- based on a product liability case involving an infant whose hands were severely burned by an allegedly defective vaporizer -- found that photographs of the child's burned hands had a significant impact on the verdict. When participants did not view photographs of the injury, 58 percent found in favor of the defense. When participants saw pictures of the infant's burned hands, 51 percent voted for the plaintiff. Viewing the photos also "significantly" boosted the amount of non-economic damages participants awarded, according to Edelman. "If you're a plaintiff's attorney, it probably confirms what you suspected," he said. "The photographs are effective, and have an impact on liability and damages." "Gruesome photographs tend to increase damage awards by jurors because they evoke strong emotional reactions," agreed Rodney Nordstrom, a trial lawyer, litigation psychologist and head of Litigation Simulation Services in Peoria, Ill. "The idea is that the more emotional the juror, the more likely sympathy will come into play." In civil litigation, photographs of significant injuries are usually shown in product liability cases, he said. Cases Nordstrom has been involved in have included "scalp removal, burns over the majority of a person's body [and] loss of limbs." Jason Bloom, a trial consultant and head of Bloom Strategic Consulting in Dallas, said that gruesome injury photos can help a plaintiff's lawyer connect with jurors. "Jurors base their decisions not so much on what the attorneys and witnesses say, but on how the attorneys and witnesses make them feel," Bloom noted. "If you're the plaintiff's lawyer, you want to get that [photo] in to personalize it and magnify the injury or accident and stir up more emotion," he said. "What you're trying to do on some level is scare the jury and then create sympathy." But some photos can be too gruesome, said Douglas A. Green, a trial consultant and head of DGA Associates in Covington, Ky. Green recalled a trial several years ago in which the plaintiff's lawyer showed jurors autopsy photos of an 8-year-old girl who was killed in an automobile accident. "It was obvious the plaintiff wanted to show these [photographs] for the emotional impact they were likely to have on jurors," said Green, who was working for the defense. The strategy backfired. Rather than finding on behalf of the victim's family in the product liability trial, the jury found the auto company not liable. "You run a very big risk when you engage emotionally with the jury," Green commented. With autopsy photos, for example, jurors might react with sympathy. But they might also react with disgust, fear or anger. "When you take it to the extreme, you can produce emotions [and] you can't necessarily predict how they are going to turn out," he said. Nordstrom agreed: "Using gruesome photos can work against the plaintiff and have a negative impact on jurors if not done properly.'' Edelman's study found that the defense can mitigate the impact of injury photos -- at least in the liability phase of a trial -- with photos that show an injury has healed. The defense photos in Edelman's study showed photos of the child's hands several years after the accident, after skin grafts. Sixty percent of participants in his study who saw both the plaintiff and defense photos found for the defense during the liability phase. But the defense photos had little impact on non-economic damage awards, the study found. Several experts suggested defense lawyers argue against the admission of gruesome photos. "The best thing is to try to make it inadmissible to the extent possible," Bloom said, by arguing that the photos are more prejudicial than probative. But such motions are rarely successful, Nordstrom said. He suggested that defense counsel argue that the photos should be in black and white, not color. "Color photographs give more detail and have more of an emotional impact than black-and-white photographs," he said. Another approach, Nordstrom suggested, is for the defense to "counteract the plaintiff's gruesome photographs by suggesting to jurors in opening and closing that the plaintiff is attempting to manipulate their emotions." Several trial consultants recommended that defense lawyers show injury photos during jury selection and ask potential jurors if they would be able to not award anything to someone who suffered such a horrific injury. Another defense tactic, said Edelman, is to seek bifurcation of the liability and damages phases. But no matter what the defense does, he conceded, a graphic injury photo "is going to have an impact on the overall story of the case." "Jurors have a difficult time taking evidence and putting it in a box," he said. Green said he feels strongly that plaintiffs' lawyers and judges should carefully control what images jurors see. "My objection in the child death case was ... driven by the fact that [showing the autopsy photos] reflected a lack of respect for the jury. They were being shown [the photos] purely to evoke an emotional reaction," he said. Some studies have shown that jurors can suffer post-traumatic stress disorder by being exposed to gruesome evidence during personal injury trials. Nordstrom noted that several states -- Arizona, Michigan, Minnesota, New York, Ohio, Oregon and Texas -- offer post-trial counseling for jurors who develop PTSD. ''I think that the gatekeepers -- the judges -- need to consider the mental health consequences to jurors," Green said. Nordstrom said he discourages plaintiff's lawyers from showing gruesome photographs during voir dire or in opening statements "to avoid the appearance of manipulating jurors' emotions." "Plaintiff's counsel ... should use sound judgment knowing which photographs to show and how to present them to a jury," he said. Green said he thinks plaintiffs' lawyers are becoming more considerate about the use of injury images. "Twenty years ago, the plaintiffs' bar thought the bloodier the better," he said. "I think the plaintiffs' bar has gotten smarter and the courts have gotten smarter about the impact [of graphic images] on jurors." Published: Mon, Aug 23, 2010

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