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Winning an antitrust case depends more on persuasive attorney argument than perhaps any other type of civil case. Both plaintiff and defense cases often involve abstract, dry and complex economic arguments and analyses. Antitrust damage claims are typically for huge sums of money that have no correlate in jurors’ own experiences. The successful antitrust attorney will tie these abstractions to what jurors want to know: How a case impacts them as consumers. Jurors care about everyday concepts such as price, competition and quality.
Antitrust cases may involve complex, abstract issues, but jurors don’t experience the economy and business abstractly. Jurors are steeped in stories, characters, proverbs, and jokes that convey a variety of attitudes, positive and negative, celebratory and skeptical, towards corporate capitalism and big business. Jurors’ class backgrounds and work experiences also typically have a significant impact on their attitudes towards
entrepreneurialism, big business and competition. In short, every American’s life is permeated by business and economic activity, so every juror arrives in court with predispositions that will influence his or her hearing of antitrust case evidence and arguments.
Some jurors hold tightly to the belief in conspiracy among competitors, while others find the concept difficult to accept. For antitrust cases involving conspiracy claims, it is key to identify jurors who hold strong views on this issue because these beliefs affect the burden put on the parties to prove their case.The trial attorney must stand up and create an emotionally compelling story for jurors that persuades them either that an economic wrong has been done that must be corrected, or that a false accusation is being made that will unfairly punish a fair competitor.
Because successful case outcome so strongly depends on good case themes and arguments, antitrust attorneys can reap great benefits from testing their arguments in the jury pool with community surveys, mock trials and focus groups. This enables the attorneys to understand the preconceptions jurors bring to hearing the case so they can speak into jurors’ existing worldviews. Community surveys and mock trials can also help identify jurors who are beyond persuasion and should be strikes during jury selection.
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