Twenty Tips To Take To Trial
By David W. Hood, Patrick Harper Dixon LLP, Hickory NC
Lawyers talk. It’s what we do. I have been in a lot of trials - seen a lot of lawyers do a lot of cool things, and seen a lot of lawyers do a lot of stupid things (definitely including me.) If we want to communicate well to the judge and jury when we are in trials, we need to keep several things in mind.
In fact, we should keep exactly 20 things in mind, and they helpfully all begin with the letter “T”. Wow, how totally convenient.
Let’s begin with preparation before the trial begins. When you are packing your bag for your big trip into the courtroom, there are things you better not forget:
1)Theme. Whenever you hear someone speak effectively, whether it is a sermon, or a political speech, or a jury argument, you can usually distill down into one phrase what the overall point was. That is how a trial theme needs to work. If your friend asks you what case you are trying next week, you should be able to explain the gist of it briefly, but meaningfully. I tried a case with one of my partners where our theme basically was “This is the case where the woman walked out in front of a truck.” Your theme could be less fact-specific, like “This is a case about taking personal responsibility for your actions.” Or you can throw around unnecessary Latin like lawyers often do, as I did once where the case had surface appeal, but not much substance underneath – so my theme was the NC state motto, Esse Quam Videri, which basically means “to be rather than to seem.”
Lots of different types of themes can work – what does not work is trying a case without an overarching theme. I recommend planning your trial theme by starting with the jury issues/instructions (what is it the jury will be deciding and on what basis), then work backwards through the likely evidence that helps or hurts your ability to prove or disprove the important points on each jury issue. Then you can settle on your theme, to tie together the important facts you think will decide the issues for the jury. The theme should be something you at least set the stage for in jury selection and opening statement, even if you don’t say your theme phrase or sentence in so many words until your closing.
I have seen lawyers try a case without an organizational theme. It generally sucks. Don’t do it.
2) Test. Once you have an idea for your theme, flesh it out a little with what you might say in opening and/or closing to explain the theme a little. Then, try it out with other lawyers and, especially, with real people too. We get so caught up in our cases, we live with them and watch them develop over months and years, and thus we lose perspective. You need to test both your theme and your overall trial strategy on folks, and for goodness sake don’t argue with their reactions even if you feel tempted to. Those reactions are a gold mine of information for you, so that you can better persuade the finders of fact at trial. Test your legal arguments on other lawyers as well, as it is also easy to lose perspective on what a judge may or may not go for after you have lived with a case for a long time.
Don’t fall in love with your arguments. You may think they are awesome – but if your spouse says huh-uh, listen to him or her and come up with something else. Winning is not everything, but I’m here to tell ya that losing ain’t nothing. So don’t let your ego get in the way. In fact, if there is a person that you don’t often agree with, seek them out as a test subject. There may be people like that on your jury, so you need to know how they react to your case.
3) Technology. Plan ahead of time with respect to your technology needs for the particular trial you will be conducting. I am not a big-time proponent of trial technology, by any means. In my experience, the fancy stuff can go wrong so often that you lose any benefit of the whiz-bang because the jury is wondering if you are a screw-up. However, I am a Luddite minority on this point and I know it. The important thing I want you to take from this Tip is that you had better practice the hell out of a powerpoint or an animation, or whatever else you plan to use to soup up your presentation. Tech with a glitch is so, so much worse than no tech at all.
Find out what the particular courthouse has in terms of equipment, for playing deposition transcripts or showing documents on a screen, or whatever. Not every court room can be quite as advanced as the ones in Haywood County (yes, Haywood County – I said that right, it’s pretty impressive.) In fact, in some counties you will need to bring your own DVD player and television, even, so please find out and plan ahead. Then, go early to scope out the courtroom so you can figure everything out ahead of time. I tried a case in Hendersonville one time where the opposing counsel wanted to show hundreds of pictures of a condominium project, but then it turned out that to allow all the jury to see the photos well, the projector had to be situated so far from the electrical outlet that the cord would not reach.
He found this out while the jury was watching him trying to rig this thing up on the fly. Ugh.
4) Travel. If you only try cases in a large urban county like Mecklenburg or Wake, then a) I guess you can skip this Tip and b) I feel sorry for you. If you do travel out into God’s country though, in another one of our lovely 100 counties, you need to do some homework before jury selection begins. What are the towns and cities in that county and what are their demographics? Are people from that part of the county likely to be biased against your guy or gal because of where they are from? Who are the big employers in that county and what do they make or do (so you can seem knowledgeable during voir dire.) And for Pete’s sake, don’t underline the fact that you are from out of town by making extraneous comments or by mispronouncing things.
Here are a few of my favorite examples of what not to do. I had an out of state lawyer try a case against me in my home county one time – and when a prospective juror was named Isenhower he went off on a tangent with the guy about how cool it was that he shared a last name with President Eisenhower and how he must be asked all the time if he were related…and all us local folks were rolling our eyes since there are literally thousands and thousands of people in Catawba County with that name, spelled about four different ways.
And then there was the land development case I tried over in Statesville where a know-it-all expert from Charlotte came up there to say how he was very, very familiar with the standards and procedures of the “Erdell” County Building Inspections Department. On cross, I politely asked him to say again what county he thought we were in, and he again, helpfully, mispronounced Iredell County as “Erdell” County. But yeah, he was an expert on how that county did things. Yep.
5) Terse. As in, keep things brief and to the point when planning your trial strategy, theme, examinations and arguments. Lawyers often talk too much, about too many different things, in a trial. It is not effective communication. If you are defending a personal injury case, for example, you should probably pick only one target primarily to shoot at – the plaintiff’s credibility, the doctor’s over-treatment, the spouse’s trumped up consortium claim, the lawyer’s overreaching. Pick only one because it is hard to make a scattershot approach work.
If anything this Tip is even more important when making legal arguments during a trial. If you have a legit argument for directed verdict, or to exclude important evidence, or whatever, please do not pollute your good argument with a bunch of crappy ones. Lawyers do this all the time, and it is a terrible blunder. Make your point, do it persuasively, and then stop talking. I know you want to give the judge several ways for you to win, I get that, but judges are loath enough to make any definitive rulings as it is. The practical effect of talking too much is that you lose whatever persuasive force you had going with your best argument. Same is true for case law – ONE case is enough unless you are just trying to show the weight of the law being on your side, but in that event just suggest to the judge that they only need to look at the one best case with which you started your argument.
6) Three. Humans tend to think in groups of three. Rhetoricians call this the Rule of Three, or if they also like to throw around unnecessary Latin like we lawyers do then they say “Omne Trium Perfectum.” Think about it – it is a common rhetorical device, because people remember it if you say something in a group of three: Life, Liberty and the Pursuit of Happiness; Stop, Look and Listen; the Good, the Bad and the Ugly. The list can go on and on. It works in speechwriting, it works in stand-up comedy, and it works very well in court.
I am not saying that you HAVE to create a group of three points. But if you can figure out how to do it, the technique will help the jurors remember your points back in the jury room. I have tried something like 200 jury trials, give or take, and I bet I was able to use the Rule of Three is at least 180 of those. So, by God, you can do this. If you have a bunch of points to make that is perfectly fine, but group them into three categories. Then, after you win your case, you can go back to the office and tell your co-workers: Veni, vidi, vici. (Caesar and Cicero and those blokes already knew about the Rule of Three some 2 bloody thousand years ago, so what’s your excuse?)
7) Tactics. A trial is not a game. But game theory can be used to help you win it. Every decision you make of a strategic or tactical nature is either a net positive for your position or a net negative. Sure, the outcome of the trial might end up as a draw, like in Chess, but that is not what you are aiming for when you plan your strategy. I am not suggesting that you refuse any procedural proposal made by the other side just because if they want it, you should not want it. Often you get more out of an evidentiary or other agreement than the side that proposed it, or perhaps you agree to it because you think the judge will like you to and that will pay off later in good will. I am only suggesting that you think carefully before any decision to make sure that the net positive is for you rather than against you.
My most important reason for including this Tip, though, is for multi-party cases. Just because you are at the defense table with a co-defendant does not mean you are on the same team with them. Depending on the pleadings or factual situation, you might actually be able to make common cause easier with the plaintiff instead. Conversely, if you are a third-party defendant brought in because the defendant says you are the real cause of the problem, for example, that does not mean you need to put up your dukes and fight with the defendant. Unless the plaintiff asserts a direct claim against you, then your interests and the defendant’s are exactly the same on the liability issue – to convince the jury that the defendant is not liable, since if that is true then neither are you. I had a case one time with a significant coverage issue where my defendant may have been outside the scope of employment and thus without insurance coverage – and the plaintiff’s lawyer was so intent on kicking the crap out of my client that he started asking questions in deposition that would help the carrier trying to get out of coverage. Not bright. Think carefully about your interests vis-à-vis the other interests in the case, then plan your strategy accordingly.
8) Thoughtfulness. Alright, now we move away from pretrial considerations to Tips about what style to use once you are in the courtroom. Be thoughtful, considerate, and use good etiquette. If you are normally a horse’s behind, step out of character when you are in trial. Don’t treat opposing counsel with disrespect, don’t whisper with your client too much (jurors think it is rude if you overdo it), don’t make facial expressions when the other party or lawyer is talking, and for Heaven’s sake don’t yell at your son, in front of the jury, because he is there to help you with your trial technology and it is not going well. Yes, I saw this happen with a normally very good Charlotte lawyer one time, and could hardly believe it.
9) Temperance. This one is a corollary to the last one. Maybe the Rules of Professional Conduct are not always sensible. But the one that says you should yield gracefully to the rulings of the court…yeah, that one is pretty helpful. Lawyers don’t like to lose an argument, heck neither do I, but you cannot keep arguing with the judge after you lose a point. That is, you cannot do that if you want any chance of coming back from that to win the case. I cannot tell you how many times I have seen this happen. I remember doing it myself one time, where I got carried away with myself and blurted out “Yes it is indeed relevant!” after a judge excluding my proposed evidence on the grounds that it was, ahem, irrelevant. And this was in front of one of my all-time favorite Superior Court judges.
Of course, one of the reasons I like him is because he has such an even keel, and is himself very well-tempered. He merely put me in my place the next time the jury left the room, and he was completely right to do that. He and I have never spoken of it again. There are some lawyers, though, who cannot let things go even after the judge calls them down. They keep arguing, they hold a grudge, they mutter under their breath, etc. In addition to “lawyers”, we should also call these folks “losers” since that is what they are apparently trying to do.
10) Truth-Telling. Jurors need to be able to trust you. They need to know you are being honest, fair and reasonable with them. One good way to screw that up is to be excessive, to exaggerate, or to embellish. (Hey, I just did a Rule of Three, everyone!) We have all seen this in court before, where a lawyer takes a perfectly good case and uses language that makes it sound like the most important or substantial matter since Brown v. Board of Education. As a defense attorney, sometimes my best strategy is to hope that the other side will not be able to avoid the temptation, and will turn the jury off by being excessive.
Good example of this Tip, or more accurately, the failure to follow this Tip, occurred in a trucking case I tried. The woman was hurt really bad, she had a significant claim that had substantial future damages from a permanent injury. Instead of putting up a reasonable life-care plan, however, the plaintiff’s attorneys put up a pile of smelly manure. $2 million for home health care for 8 hours, every day, 365 days a year, for the next 40 years – for a woman who could certainly take care of herself and had no trouble functioning in court for the 6-day trial. Plus - 40 years of gym memberships (um, if someone is so bad off that they cannot function at home without 8 hours of daily care, are they really likely to go to the local Planet Fitness for, ahem, the next 40 years?) and over $100k to buy and keep up a handicap van when the woman does not use a wheelchair. It was pretty bad, and they did not recover what they wanted. Don’t oversell, don’t overreach, and don’t overdo it.
11) Time. We never seem to have enough of it. At least, I know I don’t. People can’t stand for their time to be wasted. And yet, lawyers forget about this when they are conducting trials. Judges and juries appreciate organization in your presentation not only because it helps them understand the points you are making, but also because they appreciate you not wasting time. If there is a minor point you could fight about or ask questions about, consciously decide whether it is worth the effort, don’t just do it because you can. This is hard advice even for me to follow sometimes, and I am the one giving it.
Don’t just ask questions of a witness because you think people expect you to. I usually ask no questions whatsoever of a witness unless there is really something useful I can get from them. Don’t put on duplicative witnesses just because you can, and because it was your plan going in to put on certain witnesses. If things go really well with your first witness, consider just not calling the next one at all unless there is something unique and good you can get from that witness. Always focus your brain on what you are trying to prove or disprove, and how close you are to achieving that goal. If you can achieve it using less time, do that. Juries like that.
12) Tempo. Don’t be one-dimensional in trials. Communication experts will tell you that variety is not only the spice of life, but also helps people to learn. Repetition can be useful, sure, in terms of making sure the jury hears your theme and supporting facts enough times to really take, but I am not talking about what you say or do here as much as how you say or do it. For example, change your speaking style at different points in the trial. You could be a little more deadpan with some witnesses and more animated with others. By all means change the dynamic level of your voice for dramatic effect. When saying something really important in closing, for example, consider saying it much softer than you have been talking. That will actually emphasize it better than saying it more loudly.
Let me give away another couple of tricks here. Sometimes it can be effective, when beginning your closing, to start talking before you even stand up from your chair. It’s interesting, and makes the jury think you have something so important to say that you cannot wait to stand up and walk over to them. This is particularly true if you are responding to something completely unreasonable or unfair said in the preceding argument. Once you do stand up, vary the location from which you are speaking. It is more interesting, and thus will help the jury pay attention to what you are saying. If you have three major points to make (and you probably WILL, right?) then consider choosing three specific places in the floor to go to and each time you talk about one of those points, go to that same place in the floor.
One more idea – I had a case one time where the issue was that my landlord client tried to contact the tenant a number of times about a certain issue but the tenant did not respond. So when discussing that issue in closing I said “And here’s the response my client got from the defendant…” and then just looked at the jury in complete silence for about 15-20 seconds. It drove home just how uncomfortable it is when someone tries to make contact and all they get is silence in return. Plus, hopefully it was interesting – and thus more memorable.
13) Totality. A final stylistic point before we start talking a little more substantively about trial communication. By “totality”, I mean to underscore that while I have been focusing on specific points of style, I also think it critical for you to remember that you are communicating to the jury from the very moment you drive into the parking lot of the courthouse the first day of the trial. They may see you get out of your car, interact with other lawyers in the parking lot, stand in line with them at the metal detector or skip through (I suggest waiting in line unless the deputy won’t let you.) Basically, everything you do, verbal or non-verbal, tells the jury what kind of person you are. Be very careful. Even if you really are hot stuff, or think you are, be very sure that is the persona you want to portray at any time the jury might be watching. I would vote no, by the way. Be the person that you would want to present a case to you if you were a judge or juror – confident, but not a know-it-all; friendly, but not overtly back-slappy with others in the courthouse (that looks juvenile); focused, but not with blinders on to everyone around you.
14) Think. This brings me to a related point, but one more about your specific case than general style. Please remember to guard your mouth when walking around the courthouse during the trial. World War I gave us a very useful saying – “Loose Lips Sink Ships.” I once saw a defense attorney discuss his case in the hallway with another attorney prior to jury selection, mentioning things like the carrier he was there for and the settlement offers, WHILE POTENTIAL JURORS WERE AROUND. It was a classic case of loose lips. Be very careful about seeing people you know around the courthouse, and if you do need to talk to them try to steer the conversation away from the case you are trying. unless you are absolutely sure there are no eavesdroppers.
15) Talk. While we are on the subject of jury selection, let’s talk about the primary purpose of jury selection in most civil trials. Spoiler alert – it is not really about discovering which jurors to strike. Sure, that can be important, but frankly beyond a few obvious disqualifying answers to your voir dire questions, it can be maddeningly difficult to really figure out which jurors you should keep. Instead of focusing completely on that issue, consider instead the potential you have to connect with the jurors during the process by carrying on conversations with them. It is your only chance to have bilateral, give-and-take contact with them. Use it. Here I think you really should talk even if you have little to say. You may not really care, for selection purposes, about exactly what they do at their jobs, or whether anyone in their family has a law enforcement background. But follow up on such things anyway, to give you the chance to establish rapport with that juror. I know, I know – the jury instruction about voir dire specifically says that is not what the process is for. I am here to tell you, though, that if you don’t pay attention to establishing rapport with those jurors while at the same time conducting the jury selection process, you may be establishing negative rapport instead.
Remember, most aspects of a normal trial are zero-sum. Either that jury selection helped you create a relationship with the jury that will help them believe you in your closing, or it didn’t.
16) Theory. If you were listening earlier, then you know that before trial you should have come up with a theme, and a supporting plan of action that puts that theme into practice to win the jury issues. Now you are in the trial, though, and things have not worked out exactly as you expected. A witness surprised you. The judge excluded something important, or let something screwy in. Now that you have analyzed that document in light of how that other witness came cross, is the document now helpful or harmful to your position? Sure, you need a theory but make it a flexible one.
17) Training. When you get into the heat of battle, don’t forget your training. There are basics you don’t want to forget just because your heart is racing faster than Usain Bolt. For example, don’t ask a cross exam question to which you don’t know the answer. Excellent advice we learned in law school, but the temptation at trial can really be spectacular. I have deviated from the rule myself on occasion, sometimes with great success, but by God the odds are against you. Tread very carefully when leaving that straight and narrow path. Don’t ask leading questions on direct – you will be tempted to when the chips are down because you know exactly what you need the witness to say. Remember though that the jury is more persuaded by the witness than by you, because you are the lawyer and thus paid to spin things a certain way. The jury wants to hear from the witness without the lawyer putting words into his or her mouth with leading questions.
18) Trees. As in, don’t miss the forest because of the bloody trees. This is important. Many of the battles we wage in trial are not likely to influence the outcome of the war. Try to remember what is important, and devote your time and your attention to those points. The British won most of the set-piece battles in the American Revolution but lost the war, because they didn't realize that destroying the American army was way more important than taking territory by winning particular battles. Sometimes your client will want to focus on something else, some issue that really gets the juices flowing but that you know very well is not important. Pull rank, tell that client that while the tree may be very important to him, you need to focus instead on the whole forest.
The big picture is whether you are winning or losing, not whether the other side got the better of some evidentiary fight that is probably of secondary importance. In a similar vein to what I have said before, guard your time and do not get side-tracked.
19) Teach. There is a difference between teaching and preaching. As much as I like to mix things up a bit and get a little theatrical when I think it will help the jury remember something, I do think it is important that you not overdo the rhetoric. I have seen lawyers argue in a way that was preachy or over-the-top, like they were about to pass a collection plate around afterwards. You need to be emotional where appropriate, of course, but stay grounded to the issues the jury will be answering and the facts necessary for the jury to formulate those answers. The jury is not there to do rough justice based on who the parties are rather than what the evidence shows. Instead, they are there to “listen to the evidence and render their verdict accordingly”, in the words used to impanel the jury before opening statements. Raw emotional power can be, well, powerful, but in my experience jurors appreciate being treated more like partners in a process rather than sheep to be herded. Good teachers establish ties with their students, respect their intelligence, and partner with them in the learning process. Do that.
20) Listen, and Adapt. Hey, wait a minute, Hood! I thought all Twenty Tips were going to start with the letter T! What’s your problem!
My problem is that people don’t listen. They just keep barreling along with their preconceived notions and they don’t realize it when the ground shifts beneath them, because they are not paying attention. Trials are organic creatures, they grow and change and go off in directions you cannot expect. Unless you really, truly listen to what is happening during the trial you may not realize that your grand plan has become impossible to pull off. So, even if your plan is to list Twenty Tips that all start with T, don’t be afraid to adapt if that train leaves the tracks. Even if some client does not show up (yep, been there), or a witness says for the first time that she kinda wasn’t paying attention to the road because she was putting on lipstick (yep, had that), or you suddenly realize that the plaintiff is not going to put on the evidence you were going to use to focus the jury’s attention on a different negligent party than your client (yep, happened to me last week actually as I write this), your trial is not lost necessarily. Trial practice is about preparation, absolutely, but it is even more about thinking on your feet.
Y’all can think and sit at the counsel table at the same time, I bet. Appreciate what has happened, analyze how to deal with it, and adapt accordingly.
Hey, look: Appreciate/Analyze/Adapt – just happens to be another group of three…