Long jury trials helped spur tort reform, but the reduction in jury trials has hurt lawyers’ skills, including management of jury time that tort reformers intended to protect. Worse, jurors’ (read: humans’) attention spans are shorter than ever. Lawyers, penned up in their offices, are poor candidates for entertaining 12 strangers when those strangers have become accustomed to the instant gratification every juror has available on a mobile device.
Thus we read reports from complex cases about jurors who “look like they’re melting with boredom,” with “[e]ye rubbing, looking around, dozing, [and] twitching,” as Bloomberg News courtroom reporter Christie Smythe noted in a complex securities-fraud trial in December 2017. This negative feedback loop threatens a chaotic death spiral of bad trial lawyering, like a serpent eating its tail.
One antidote: Make time management a key part of the trial preparation. Too many lawyers treat the judge’s and jury’s time as if they’re playing baseball and not football. As comedian George Carlin explains, “Baseball has no time limit: we don’t know when it’s going to end; we might have extra innings.” On the other hand, “football is rigidly timed, and it will end—even if we’ve got to go to sudden death.” Which time system do you think jurors would prefer?
Edit your opening statement like “Star Wars.” Rather than debate the importance of the opening statement relative to other parts of the trial, put yourself in the jurors’ shoes. The jurors need a powerful outline that they can follow, not detail. You should narrow, simplify, and focus. Limit the number of people, places, and events you mention because the jurors will lose interest, even if you think you have to include these details.
Consider an example of outside of the courtroom: “Star Wars.” A short video essay, “How Star Wars Was Saved in the Edit,” available on YouTube, recounts how director George Lucas invited fellow directors Brian DePalma and Steven Spielberg to watch an early cut of Lucas’s new movie. They saw a disconnected mess. DePalma “went off the deep end,” ranting that the film “made no sense.” For example, in the opening battle scene, Lucas had inserted seemingly random depictions of Luke Skywalker bumbling around on Tatooine, alone and with unidentified friends, only to flash back to space, then back to Luke, and so on. Like so many lawyers who jump straight into minutiae, Lucas had “too many storylines to keep straight,” as the essay puts it. Lucas cut the detail that we all love. Nearly every lawyer can learn from his example.
Structure for time. Use structure to give the jury the feeling of the beginning, the middle, and the end. An ancient form (described in On Rhetoric by Cicero, among many other ancient writers) still works wonders: the six-part structure. That begins with a short, 90-second “power statement”; a statement of the facts (itself broken into parts); an outline of the points that you will make in the opening (signposting); the arguments confirming your side; rebutting the arguments against your side; and the final exhortation. Not only will you have limited your characters and story lines, you will have presented your speech in a form that tells the jury at any given time where you are.
Signposting. Signposting, as one part of Cicero’s six-part structure, works well for many witness examinations. Tell the judge and jury that you want to cover a certain number of parts, and as you cover each one, tell the jury that you finished that part. In closing argument, the jury charge provides the signposting for you. It is the roadmap to victory. In too many cases, lawyers neglect making the jury charge the heart of the closing. Don’t be that guy.
Use timers. Every TV show, YouTube video, or other streaming media has a clock. We all watch the clock whether we think about it or not. It is torture to sit and listen to endless talking with no known endpoint. So use a timer. Don’t use your cellphone; use a kitchen timer or an ordinary digital watch. Tell the jury you will take 30 minutes or 60 minutes, tell them you are setting the timer, and tell them you will stop when it goes off. The last thing you want is to ask the judge “how much time do I have left?” Set up any video you use with timers. Just like a YouTube video, deposition excerpts may take five minutes or as much as two hours or more. Requiring a juror to sit through such events without any idea of when they will end is like a bad wedding speech. Famed trial lawyer Lloyd Stryker describes the lawyer’s goal of achieving “mutual thought transference” in his book “Art of Advocacy.” Technology can help.
Remember the jurors’ time. The football mindset begins even before you arrive in the courtroom. Football coach Vince Lombardi had the concept of “Lombardi time” of arriving at a meeting ten minutes early, as recounted in David Maraniss’s biography, “When Pride Still Mattered.” You will need more than that in trial. For lunch, order it in for the jurors, who are strangers to each other and almost always strangers to the lunch options around the courthouse. Compared to the costs of the lawyers’ time, a bill for a decent deli lunch is trivial. Split the cost with the other side.
Nothing you do will earn the jurors’ respect more than respecting their time. Again, to quote Lombardi, “[t]he Packers never lost a game . . . we just ran out of time.” Manage the clock so you win before the clock runs out.
David K. Bissinger is a trial lawyer and partner in Bissinger, Oshman & Williams in Houston.