This is Part 1 of a four-part series. To get future updates delivered to your inbox, please subscribe to my newsletter at the end of this post. You can find Part 2 here. Thank you for reading.
During decades of trying cases, teaching Trial Advocacy, observing mock juries, interviewing jurors, and now serving as a trial advisor, arbitrator, and mediator, I’ve learned some things about what doesn’t work at trial. By highlighting mistakes instead of a more traditional focus on winning strategies, it triggers an especially powerful motivator in the human brain known as “loss aversion.” (For more on this topic, see Daniel Kahneman’s book, Thinking, Fast and Slow.) The following list captures some of the bigger mistakes I’ve seen over the years.
1. Don’t learn anything about your potential jurors in voir dire.
An understandable desire to spin the jury as soon as possible has converted jury deselection into an extended effort to bias panel members through assertions about the case in the form of thinly disguised questions: “Is there anyone on the panel who would return a verdict for the plaintiff even though the defense proves the accident is entirely his fault because he was not paying attention?”
A problem with using voir dire only to argue your case becomes apparent when you stare at the strike list and realize how little you know about the jurors on the panel. While the bailiff is standing next to you waiting for you to draw a line through a name, a voice in your head is asking: “Who is Mr. Johnson and what reasons do I have to strike him? He did promise to be fair (along with everyone else, of course). Should I leave him on?”
Having learned little or nothing about most of the panel, you must exercise your strikes based on the limited demographic, work, and neighborhood information provided by each juror in advance of trial or in response to questions from the judge. You then wait with bated breath to learn (1) whether Mr. Johnson was a leader in the jury room, (2) whether something you could have learned about him in voir dire proved to be the driver of his jury room leadership, and (3) whether Mr. Johnson helped or hurt you in jury deliberations.
Instead of solely arguing your case and extracting responses to broad questions akin to, “is anyone on the jury opposed to mom and apple pie,” think about the questions you can ask and the discussions you can engage in with panel members to reveal meaningful information. If you’re representing a plaintiff, you need to know if a panel member believes jury verdicts are out of control and people wrongly sue at the drop of a hat. If you’re representing a defendant company, you need to know if a panel member believes corporate greed motivates all decision-making such that profits over safety is imprinted on the hearts and minds of all corporate executives. If you’re representing an insurance company, you need to know if a panel member had a bad experience when submitting a claim. Even if the judge allows you to do some persuasion during voir dire, make sure you learn enough about each of your potential jurors so you can thoughtfully exercise your strikes.
2. Tell the jury your Opening Statement is not that important.
When you stand before the jury in Opening Statement, you have an audience hungry to learn. They have just taken a public oath (one of the few times in their lives they will have done so) and most if not all want to be good jurors, even though they may not know what this means. Thus, they are looking for a guide in an unfamiliar place to help lead them to the right result.
But just when the audience is at its most attentive state, many lawyers begin Opening Statement with the following: “What I am about to tell you is not evidence.” While this is accurate, it is unwise. Think about the impact of this statement on the jurors. They know evidence is important — and you just told them what you are about to say is not evidence. So just when you most want jurors’ attention you’ve said they can feel free to think about something else.
Don’t ever tell a jury what you are about to say is unimportant. Instead, work to make every juror feel they should focus on each word in your Opening Statement so they can be shown the path to truth and a just result.
3. Organize your Opening Statement like a law school exam answer.
We all had this sequence drilled into us in Torts class: duty, breach, cause, and damages. Thinking like a lawyer, we were told, meant breaking problems down into discrete parts and then evaluating each component against precedent. At semester’s end, we madly filled blue book pages (or their online equivalent) demonstrating we know each element of the causes of action and can apply the stated facts to those elements.
Some lawyers take this same approach to Opening Statement; if it worked for me in law school, then why not here? The jurors must apply the law, why not treat them like law students?
Why not? Because it doesn’t work. It took months if not years for our professors to reshape our minds into some semblance of legal thinking; you have a few days with these jurors. And we wanted to be lawyers while these jurors merely want to do their duty and return to their lives.
Instead of treating your jurors as people who think like lawyers, organize your Opening in the single best way we all learn — namely, through stories. Our minds hunger for narratives to create order in a random world. Indeed, we are so anxious to find a story line we will fill in facts with our imagination about what must have happened. We quickly assign motives to each actor to explain why they did what they did. Indeed, next time you watch a murder mystery pay attention to how quickly you want to identify and announce the murderer even though the story has just begun.
A better way – really the only way – is to tell your clients’ story in Opening. Chronological order usually works best, so begin at the beginning and walk the jury through who did what, when. Jurors look for actors’ motives so be sure to provide the facts about why people did what they did. Your goal is to fashion a coherent, compelling story with sufficient concrete support so that at the end of your Opening the jurors can say to themselves, “ah, now I see what happened and this lawyer’s story makes the most sense.” If you can get a juror to this point in Opening, you’re well ahead of the game.
4. Don’t use any visuals.
Many litigators spend nearly all their careers using only words. We draft pleadings, we answer written discovery, we write briefs, and sometimes we get to argue orally to the judge. All in all, we tell but we don’t show. So on those occasions when we get to try a case it is hard to pivot into a different way of thinking.
Every day we are bombarded by sophisticated, effective graphics. Televised sports are one example, with first-down lines superimposed on football fields, strike zones highlighted in front of the batter, shot selection displayed on the basketball court, and (somehow) the flight of a golf ball tracked as it rockets down the fairway. Each technique rivets our attention. Smartphone apps likewise feature attention-grabbing visuals, carefully designed to keep us scrolling endlessly. Even simple visual displays capture our attention and can move us to smiles and tears, such as the photo arrays set up at wakes to show the arc of a loved one’s life.
Take the time (and it does take time) to plan and execute effective visuals as you tell your story to the jury. Here are two of many, many ideas. First, at the outset, a simple “who’s who” board helps keep track of all the relevant actors. While you have spent years learning about the fact witnesses, to the jury they are complete strangers. In the days before names were on the back of athlete’s uniforms, vendors would shout out: “you can’t tell the players without a program.” The same holds true for a jury, so create a display board with key witnesses’ images and their connection to the case.
You should leave the board somewhere in the courtroom where the jurors can see it throughout the trial. In so doing you will help become the guide the jurors are seeking to find.
Further, consider how you can use concise graphics to tell and reinforce your story. If the events at issue took place decades ago, in 1971 for example, instead of the usual horizontal timeline starting in 1971 you can create a visual showing a 1971 Chevy Vega, Motor Trend’s car of the year, Richard Nixon as President, an image from the Vietnam War, and a photo of the Milwaukee Bucks winning their first NBA Championship. This will help remind jurors (many of whom were not yet born) how long ago these events took place and reinforce your state-of-the-art defense.
One opponent mocked in his closing argument my extensive use of visual evidence (including video clips) saying, “I felt like I was at a rock concert.” (He quickly lost).
5. Pretend the other side’s case has no strengths.
You work hard to get the jury to focus on your arguments and evidence, why waste your time talking about the other side’s case? Moreover, if you discuss your opponent’s points you are just giving them more credibility. Isn’t it better to hope the jury will just overlook your case’s flaws?
Do not bet on it. It didn’t work for the Wizard of Oz to insist, “pay no attention to that man behind the curtain,” and it will not work for you. While each juror may not notice everything, taken as a whole the jury usually does. Indeed, in post-trial interviews and mock jury sessions I have seen many juries pick up on facts and issues the trial lawyers did not appreciate as they put their cases in.
Instead of burying your head in the sand, recognize there are no perfect cases. Julia Galef’s important book, The Scout Mindset, describes this wisdom gained over time:
[E]xperienced lawyers often cite objectivity and self-skepticism as among the most important skills they had to learn over their career. As one leading lawyer says, “When you’re young, you want to help your client so badly you tell yourself, ‘There’s really not an elephant in the room, there’s really not a great big gray elephant over there with a pink ribbon on it . . . .’”
Julia Galef, The Scout Mindset 13 (2021), quoting from Randall Kiser, How Leading Lawyers Think 100 (2011).
Of course there are facts your opponent will be able to use against you. Your choices are to ignore those facts, to respond to them only when they arise, or – the right answer – to anticipate them and mitigate their impact by raising them first if you can.
In fact, research shows an audience finds a speaker more credible when they present themselves with a “confident humility.” Because jurors look for a guide to lead them to the just result, you want them to see you as a person to trust. Wise listeners shy away from those who convey the sense they are never in doubt. So embrace the reality that the other side has some points you need to deal with.
The typical time to accomplish this strategy is in your Opening Statement. Identify the worst facts for you and imagine how they will come up in the other side’s Opening and/or trial presentation. Then find a way to dampen their effect by putting them in the best light you can, whether by highlighting other evidence that undercuts these facts, by adding context to the worst facts to diminishes their importance, or otherwise challenging the idea that these facts are as important as your opponent contends.
In sum, the test of the trial lawyer is to take the other side’s best facts and find a way to make them work in your favor. Ignoring them is a mistake.
This was Part 1 of a four-part series. You can find Part 2 here. To get future posts delivered to your inbox, please subscribe to my newsletter. Thank you for reading.
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Great! I look forward to sharing more insights with you soon. Take care.