This is Part 2 of a four-part series. Click here for Part 1, and click here for Part 3. To get future updates delivered to your inbox, please subscribe to my newsletter at the end of this post. Thank you.

In part one of the Series, we discussed five common trial errors: (1) don’t learn about your jurors in voir dire; (2) tell the jury not to pay attention to your Opening; (3) organize your Opening like a law school exam answer; (4) don’t use visuals; and (5) pretend your opponent’s case has zero support. Here are five more mistakes.


6. Ignore Decision-Making Science.



There is no need to think about how people make decisions. We are trained in logical, legal thinking and through the force of our personality we will get jurors to follow that same approach. Moreover, the law is on our side because jurors across the country are sent off to their deliberation rooms to reach a verdict with this closing instruction ringing in their ears:

“Free your minds of all feelings of sympathy, bias and prejudice and let your verdict speak the truth, whatever the truth may be.”

For decades we believed this instruction was effective and its goals attainable. People could simply “free their minds of all feelings” and reach a verdict based on reason and objective facts—or so we thought.

Recent advances in the science of decision-making, however, undercut our assumptions about how jurors make decisions. Science now teaches that our cerebral cortex (and its deliberate, logical power) does not either solely or separately rule the day. Instead, logic or reason (described below as “System 2” thinking) operates alongside and in conjunction with the evolutionary brain and its quick, instinctual impulses (described below as “System 1” thinking). Thus, instructing someone simply to shut down part of their brains and “free their minds of all feelings . . .” is as effective as telling a child perched on a garage roof to ignore gravity.

Nobel Laureate Daniel Kahneman is among the leaders in the developing understanding of human decision-making. Kahneman and his colleague Amor Tversky relentlessly challenged the received wisdom that human beings are motivated to—and do—routinely make rational, logical decisions. Kahneman summarized his and Tversky’s work in the 2011 best seller, THINKING, FAST AND SLOW. This book brings to the public a lifetime of cognitive and social psychology research about the many non-rational ways that human beings make decisions—including the multiple ways we predictably and without awareness commit errors in logic and reasoning.1

Jonathan’s Haidt’s book, THE RIGHTEOUS MIND: WHY GOOD PEOPLE ARE DIVIDED BY POLITICS AND RELIGION (2012), likewise pulls back the curtain of myth and misunderstanding to show how humans make decisions. Haidt uses the tools of neuroscience and social psychology to explain how humans’ intrinsic moralistic, judgmental nature is moved by forces that operate more through rapid intuitive judgment than through careful “reasoning why.” Like Kahneman and his Systems 1 & 2, Haidt likewise differentiates between two types of thinking, one that is conscious (reasoning) while the other operates intuitively.

Learn more about the science of decision-making as applied to juries in this White Paper from the American College of Trial Lawyers (from which the above material was taken). Additional excellent books published since the White Paper came out include another Daniel Kahneman book, Noise: A Flaw in Human Judgment, Think Again: The Power of Knowing What You Don’t Know, by Adam Grant, and The Scout Mindset: Why Some People See things Clearly and Others Don’t, by Julia Galef.


7. Rely on a Burden of Proof Defense.



Sometimes defense lawyers in a product liability case are stumped – they cannot explain how an accident happened without their client’s product’s involvement, but at the same time the plaintiff is struggling to prove it was in fact the product’s fault. Many such defense lawyers find comfort in the safe harbor of burden of proof. After all, they tell themselves, the judge will instruct the jury they cannot guess and unless the plaintiff can show it is more likely than not the product’s fault, then the defense wins.

The problem with this approach is juries want to solve the causation mystery. Having watched scores of whodunit mysteries, jurors feel fully equipped to combine the facts presented with imagined facts of “what must have happened.” Thus, defense counsel efforts to highlight uncertainty and the burden of proof instruction run counter to the jury’s willingness to fill in facts. So unless defense counsel can persuade them of an accident scenario that exculpates the product, jurors will almost always accept the plaintiff’s plausible version of what is more likely true than not true.


8. Bore the Jury with Unedited (or lightly edited) Video Depositions.



It has become a commonplace to capture depositions on video in cases of sufficient value. When used to impeach courtroom testimony with prior inconsistent statements, video snippets display the witness’s expression, demeanor, and tone of voice, thereby capturing a jury’s attention far better than reading from the paper transcript. Indeed, Jon Stewart’s Daily Show repeatedly demonstrated how video excerpts can tell a compelling story.

But a problem arises when video depositions are used in lieu of an in-courtroom witness. Instead of watching the live give-and-take between the lawyer in the well and the witness in the box, jurors stare at a screen with glazed-over eyes as the testimony drones on. Pauses between questions get magnified, long silences accompany the witness reading documents, and jurors start thinking about the tasks they would be accomplishing were they not stuck in the courtroom. To paraphrase the classic philosophical question, “if video testimony is played but no one is listening, did it make a sound?”

To avoid this problem, be a ruthless editor when you decide what to play from a video deposition. Digital editing software makes it easy to trim a deposition into an interesting, ten-to-thirty-minute presentation. Plan the deposition of a witness you anticipate will not appear live so the testimony follows a coherent path, as you would do with a live witness on direct. Also, use technology to incorporate call outs from key exhibits to reinforce your points and maintain jury interest. Then, as you are preparing for trial, go through the transcript and identify the several most important points you want the jury to remember when the video is over. Minimize and eliminate everything else. You do not need to play your soliloquy about how a deposition works, especially if you already have gone through that drill with a prior witness. Eliminate overruled or withdrawn objections and long pauses between questions, giving opposing counsel a heads-up about what you’re doing. Finally, get an agreed-schedule to exchange video edits well ahead of trial so any fights over deletions or counter-designations can be resolved by the judge and final edits made.


9. Use Complex, Word-Filled Visuals and Power Points.

Lawyers excel in the use of words; mostly written, sometimes spoken. So even though we’ve read that most people are visual learners, nonetheless when we create demonstrative exhibits and power points we load them up with text. Then we stand in the well and ask the jury to read along as exhibits and slides march across the screen. If it’s on the screen, after all, then I’m trying a case visually, right? No.

Instead, develop visual presentation skills in yourself or, failing that, find someone who already has them. The first important rule of thumb is to focus on one idea per demonstrative exhibit. Demonstrative exhibits get cluttered when you put multiple ideas on one slide (or board). Ask yourself as you are designing and editing the demonstrative, “what is the core point I want the jury to take away from this visual?” Then trim away extra concepts and move them to their own slides or boards.

As for Power Points, do not simply transfer your written outline onto slides so the jury can read along. Again, you will put them to sleep. Instead, think about what image you can use to complement/reinforce the points you are making orally. For example, if you want to tell the history of farm machinery to provide context for your client’s design, don’t just tell, show:

These images show the enormous design advances over time in a way a soliloquy alone never could.




10. Adopt someone else’s personality for the trial.



Although it worked (briefly) for Frank Abagnale to pretend he was a Pan Am pilot (much less so than portrayed in Catch Me if You Can), jurors will detect if you try to impersonate some great trial lawyer you wish you were but are not.  Staying with movie portrayals, the lawyers played by Jimmy Stewart and George C. Scott in Anatomy of a Murder, Al Pacino in And Justice for All, Paul Newman in The Verdict, and Matthew McConaughey in A Time to Kill each delivered their lines in compelling ways –albeit with much different styles.  In each instance their ability as actors to inhabit another persona enabled us to suspend disbelief and see them as trial lawyers.  But acting is harder than it looks. For a thought experiment, imagine Tom Cruise in any of those movies. Even though his well-crafted set up for Jack Nicholson’s “You can’t handle the truth” speech helped make movie history, neither he nor Demi Moore made us believe they were trial lawyers.

And so it is for you.  The jury is looking for a trustworthy guide to the right verdict.  Trying to be someone other than who you are will be detected sooner rather than later and will inject doubt into jurors’ minds: “If she’s pretending to be someone she’s not in order to persuade us, maybe I can’t trust her.” This is not to say you should not learn from great trial lawyers.  But instead of trying to be them, watch closely what works for them in dealing with clients, opposing counsel, witnesses, the judge and juries and decide which of those skills fit well with who you are.  I can surely trace some of the best things I do back to great trial lawyers with whom I worked.  But I knew I had to fit those practices into my personality, not vice versa. You should do the same. Experienced 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 . . . .’”

This was Part 2 of a four-part series. Click here for Part 1. To get future posts delivered to your inbox, please subscribe to my newsletter below. Thank you for reading.

Great! I look forward to sharing more insights with you soon. Take care.

Photo of Ralph Weber Ralph Weber

During a distinguished career as a trial lawyer, I tried dozens of complex, multi-week trials, earning peer recognition from The American College of Trial Lawyers, Chambers Guide, Best Lawyers, and more.  I taught Trial Advocacy for 25 years to Marquette University Law School

During a distinguished career as a trial lawyer, I tried dozens of complex, multi-week trials, earning peer recognition from The American College of Trial Lawyers, Chambers Guide, Best Lawyers, and more.  I taught Trial Advocacy for 25 years to Marquette University Law School students.  I created the Trial Science Institute, a facility for studying how jurors and judges respond to disputed cases. And I helped found a nationally renowned trial law boutique, Gass Weber Mullins llc.

At the same time, I have been a trusted advisor to senior corporate and nonprofit leaders through work on multiple boards. I currently chair the HR and Governance Committee for a Fortune 100 company, serve on the national and local boards of a network of public charter schools, and serve on the board of a large privately held company. A trial lawyer’s ability to ask the right questions — and to pursue follow up questions as needed– brings to the boardroom an element that helps improve group decision-making.  Indeed, work I have done to improve jury decision-making is also applicable to decision-making by boards of directors.

I now am launching a new venture that emphasizes these skills of advocacy and advising. 

For Trial Lawyers, I will provide collaborative, strategic consulting to help assess their cases and create effective trial narratives. In addition, I will serve as a mediator and arbitrator for cases that can be resolved without going through the courts.

For Company Counsel, I will take on special projects when an experienced, independent perspective will help.  I will likewise assist when a second opinion on major litigation can assist both company and outside counsel.

At the same time, I will continue my research and writing about improving group decision-making.