TRIAL TACTICS: Of Demons and Other Acronyms

Vol. 37 No. 4


The author is with Jackson Walker LLP, Houston.

As trial lawyers, we are always striving to tell our client’s story in ways that will be persuasive and resonate with the jury. The use of acronyms can be helpful, especially in long trials. Here is an example.

There was a jury trial in a defamation case that wound up lasting six weeks. The plaintiff was able to show that the market for his product had gone down after the defendant’s publication. It was up to the defendant to explain that it was not the television broadcast that resulted in the damage, but something else. The defense damages expert opined that there were numerous factors affecting the market at that time and these elements caused the decline.

The defendant's expert would, however, only meet the jury late in the case, and the fear is always that opinions
will have been formed by the jurors and positions hardened by that time. So, in this case, defense counsel created an acronym for his position. It was not the broadcast that caused this market to
decline, the defense lawyer said in opening statement; it was the DEMONS. The DEMONS? Yes: Drought, E. Coli, Milo and grain prices, Other media, NAFTA, and Speculation in the market. The DEMONS.

It was, you see, the drought in Texas that had greatly affected cattle prices as ranchers struggled to feed and water their stock. There was an outbreak of E. coli, which had caused the Japanese to suspend imports of U.S. cattle. Milo and grain prices were at an all-time high and thus negatively affecting the market. Other media had reported on the same mad cow disease that was the subject of the defendant's broadcast.

Then there was NAFTA, causing Mexican and Canadian cattle to compete on an equal footing with U.S. beef. And, of course, there was speculation in the market including one of the plaintiffs, who made $40,000 in the market by shorting his herd. Yes, it was the DEMONS, not the defendants.

The jury heard about the DEMONS early and often, and the acronym created a bond between the jurors and defense counsel. In his testimony, the plaintiff’s expert laid out his economic theories in boring academic detail. When it came time for cross, the first question was: “Doctor, what about the DEMONS?” The expert was puzzled. The DEMONS?

The jury knew what counsel was asking about. It was a secret they shared, but the expert was clueless about it. Not a very knowledgeable expert. Then defense counsel took the expert through each of the individual DEMONS, and he, of course, had to concede that these elements were all present in the market at the time.

Then the plaintiffs called a trader from the Chicago Mercantile Exchange who testified that he was on the floor of the exchange when the broadcast came on the air, that traders were watching the show, and that within minutes they sold the market down and trading in cattle futures was suspended.

But the witness had forgotten about the DEMONS. He had given an interview to a local television station on the day after the broadcast (from the floor of the exchange) and said that it wasn’t the broadcast but “the drought and these high grain prices that caused the market to go down.” He had, the day after the broadcast, identified two of the DEMONS.This case was tried more than 10 years ago. Defense counsel ran into a juror from that trial recently, and one of the things he asked, with a big smile, was “How are those DEMONS doing?”


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