The rationale for almost every jury verdict can fit on one side of a 3 x 5 notecard. “The company was not fair,” or “The plaintiff was deceptive.” Yet, lawyers spend dozens, even hundreds of hours addressing irrelevancies. The modern juror, inundated by information, craves simple truths. Here are some that trial lawyers should bear in mind.
There is no one recipe for a great trial team. Sincerity, a passion for the case, organization, consistency and a commonsense story are a good start. These low-tech attributes win cases and should remain the lawyer’s principal tools.
Attorneys should resist the urge to overuse flashy technology and graphics. Unlike the actors who play attorneys on the big screen, counsel doesn’t have the luxury of Hollywood make-up or second takes. Also, they should refuse the temptation to complicate the story.
Litigators must distill the case down to the essential facts. Counsel’s goal is clarity — in voir dire, opening statements, witness preparation and closing arguments. They should anticipate jurors’ questions; the best lawyers answer questions jurors are asking themselves.
Simplicity is key. Jurors hear what they understand; they do not understand all they hear. When polled, jurors seldom complain that lawyers made the trial too simple.
The good witness is consistent. That means his deposition testimony and his trial testimony should cohere. His verbal and nonverbal signals should agree. His emotions should remain steady throughout direct and cross-examinations. Each witness must know the case theme and deliver clear testimony to support it. This will allow counsel to show the jury how to connect the dots.
Although the jury is more likely to remember just the main points of a case — the headlines — and how witnesses reacted on the stand, jurors just as easily may focus on a particular, specific statement by a witness. The effective advocate orients the witnesses to speak clearly, answer definitively, and stay focused on relevant facts and core themes.
Lawyers should encourage jurors to tune in to the proceedings by breaking down the facts into individual building blocks of information that form a logical story. A litigator should give the jury the information they will need to put the puzzle pieces together in the jury room by creating a narrative that clearly describes the client’s position.
Jury research reveals it is not necessarily true that the more likable or attractive advocate will win. Rather, the advocate who presents the case in a manner that resonates with jurors’ personal experiences and perceptions of the world is more likely to be successful.
Pretrial jury research in the form of a mock trial or focus groups will give further valuable insight into how jurors likely will perceive the case. These projects illustrate the way jurors process facts, and they offer insight on the constructs likely to dominate in the deliberation room.
The urge to root for the underdog is perhaps greater now than in recent history. Jurors may fear that they may someday face Goliath as they negotiate health-care bills or near retirement. The tendency to align with the victim because of some relatable, personal experience is common. The challenge for the litigator representing an institution is to humanize it. One way to do so is to show the jury that people with integrity and compassion lead the organization. The colossus is not as menacing when shown as the sum of the individuals who comprise it.
Fair warning: Trial lawyers must keep in mind that jurors (and potential jurors) understand the trial process. They’ve all seen it before — in movies and on television.
Connect With Jurors
The effective litigator connects with the jurors at every stage of the trial process:
1. During voir dire: The smart lawyer will listen carefully to panel members. This is the only time they can reveal their true beliefs. Attorneys should address jurors by name when asking them questions. Let them speak honestly. Open the discussion channels to free up their opinions. Help them feel comfortable talking about the personal experiences that may bias them against either client while maintaining their integrity in saying so.
2. During trial: The lawyer needs to understand that he has a teaching role. He should provide jurors with the tools they need to make a decision in his client’s favor. That means presenting evidence in an organized and a logical manner with clarity and purpose and presenting testimony in an engaging manner. An attorney needs to tailor the story so it’s relevant to each individual juror based on his or her experiences. Frame the legal issues in plain English. Also, lawyers should consider jurors’ backgrounds and convey an understanding of their sacrifices and difficulties.
Lawyers who know their jury and remain clear and relevant as they guide witnesses in confirming the case themes enable jurors to render a favorable decision.