The Fear Motivator (Part 2)

by John K. Miles, Jr.

I remember little about some cases, and I’ve completely forgotten others. For my clients, however, the day the jury returned its verdict was among the most significant in their lives. A loss for me was disappointing; for the plaintiff it was devastating. I was arguing a position, but the position didn’t belong to me. I was not the one who was damaged. I did not look into the jurors’ eyes and share my story. My clients did.

The client’s story contained many painful and emotional facts significant to her. From my point of view, an adverse trial result was a loss for the client. From the client’s point of view, the jurors heard what she had to say and didn’t agree with her.

Some years ago I tried a case for an elderly woman who broke her shoulder when she tripped and fell in a store. As is true in many premises liability cases, the issue was liability, not damages. The defendant never questioned the extent of my client’s injury or the effect it had on her. I remember how embarrassed she was to testify about the effects of the shoulder injury. As is true of her generation, she did not like discussing personal matters in public. On the stand she recounted to the jury how she could no longer unclasp her bra from the back.

Liability was the issue for the jury as well. In this case a raised floor tile caused the fall. The jury believed everything my client said about the incident. They never doubted her injury or the reasonableness of her damages. They had to determine whether the store had superior knowledge of the condition that caused the fall.

Given the facts that no one else had tripped on the tile and the nature of the defect was minor, the jury decided in favor of the store. Frankly, it was the correct decision. Because the defendant never made a settlement offer, we were forced to try the case. It was a long shot, but we took it. We put up a good case, but we lost.

While the result was discouraging, it was—from my perspective—expected. The same could not be said for my client. After the judge read the verdict, she looked at the jury and said, “How could you?”

I was surprised and somewhat embarrassed by my client’s outburst. I assumed her conduct was due to disappointment over the loss, coupled with the realization that she didn’t receive money for all her time and trouble. Walking her to her car, I came to realize that it was about more than that. She wept as she explained that what hurt the most was that the jury hadn’t believed her. I could not convince her that the verdict was no reflection on her credibility. I failed to realize that my client was expressing sorrow over her sense of rejection. She had revealed something painful and personal, and she lost. She made herself vulnerable, and she had been rejected.

In Everybody’s All-American, Dennis Quaid plays a former LSU football player who longs for his days of gridiron glory. As a star athlete, he had basked in the cheers from the crowd. The cheering ceased when he graduated. He found it difficult to replace what he felt when a stadium full of adoring fans chanted his name.

The day comes when LSU decides to honor his championship team. He is lined up on the field with his former teammates. One by one the announcer calls their names, but the crowd is not cheering. Quaid’s character looks around in alarm at the fans who, rather than cheering, are engrossed in conversation or making their way to the concession stands. The audience can see the disappointment on his face as he waits for his name to be called. When his name is called, the crowd erupts in cheers. He breaks into a huge smile as he acknowledges his fans. As the camera pans away, we see that the cheers are not for Quaid. The current LSU team has taken the field. Upon realizing what has happened, he is devastated.

For some, the thought of rejection is unbearable. Just as for Quaid, plaintiffs can’t imagine having a jury find against them. They refuse to invest so much of themselves in a process that could result in failure.

It goes without saying that I enjoy movies. Occasionally, I even rent a romantic comedy. The story is predictable. Boy meets girl; boy loses girl; boy gets girl. The climactic scene of the movie involves the boy (imagine Hugh Grant) rushing across town to stop his beloved from marrying the wrong man. He always arrives just in the nick of time. The girl has realized she can’t go through with a marriage to a man she doesn’t love. Boy and girl live happily ever after or until the sequel.

While we typically root for true love, many of us are reluctant to risk rejection. If we become vulnerable, we lose control. We risk being hurt. We choose to guard our heart rather than risk pain. What is true for the one in love is also true for plaintiffs. Both have a choice. They can bear their souls and risk rejection, or they can play it safe. Hollywood storylines aside, most of us prefer to play it safe, particularly with things that really matter to us. Mediation offers an easier choice for the plaintiff motivated by fear.

Properly conducted mediations allows the plaintiff an opportunity to be heard, to fully express himself in a safe environment without fear of rejection. The defendant is obviously not required to agree with the plaintiff. However, by listening respectfully to the plaintiff and by participating in the negotiating process, the defendant helps eliminate any fear of rejection that the plaintiff might have.

The mediation process alleviates the fear motivators: public speaking, formidable environment, compromising evidence, rejection. Because it is based on compromise, mediation does not allow the plaintiff to get all she wants. She is nevertheless affirmed. She has a hearing and obtains a result that validates the significance of what happened to her.

Click here to read “The Fear Motivator” (Part 1)

*This excerpt is taken from John Miles’s book, “A New Day in Court.” 


John Miles is the founder of Miles Mediation & Arbitration Services. To schedule a mediation or arbitration with him,  please call 678-320-9118 or visit his online calendar.