While the following points are well known to almost all of us, it is important, from time to time, to review the basics involved in the trial of the case. Here are a few of the well-known and well-established ideas to keep in mind. I appreciate these may be overly simplistic, but we often forget the basics of good trial tactics.
FOCUS ON THE DEFENDANT – NOT THE PLAINTIFF. START THE STORY TALKING ABOUT THE DEFENDANT.
In 1999 Lawyers Weekly published the results of a study done through the American Trial Lawyers Association. It assigned two of the members, experienced in jury psychology, the research project of presenting cases to hundreds of focus groups around the country. Their research was then evaluated and published. It established the fact that when they begin presenting their opening statement by talking about the plaintiff, jurors would blame the plaintiff for what happened. But, if they started with the defendant’s conduct, jurors focused on what the defendant had done wrong and blamed the defendant. They clearly demonstrated we should start our trial story not with the injuries or the plaintiff, but with the defendant’s conduct. The reason was what psychology calls “availability bias.” An over simplistic explanation is our tendency to use mental short cuts to reach conclusions by putting more emphasis on memorable facts we are given than is deserved. In sort of a “hindsight” way we reach conclusions about facts before we have reviewed all of the available information first. We tend to rush to judgment.
As a result, the jurors began to immediately fill in blanks and asking themselves questions by focusing upon the behavior first given them. They construct an understanding of the case in the context of the defendant’s behavior before they review the full context of all the facts.
Added to that, is the psychological factor of “defensive attribution.” This refers to the fact that once we reach conclusions we began to filter facts that are inconsistent with our own ideas and what we have concluded or about what we would expect others to do. We adopt a unrealistic “this couldn’t happen to me” or “I would never have done that” reaction. In the study jurors developed stories in their minds and then looked for evidence to support their version. As a result we should begin by attacking the defendant’s conduct and not start with a discussion of the plaintiff. In addition sympathy is a very poor motivator. Anger drives plaintiff verdicts.
DEAL WITH KNOWN JUROR BIAS
Virtually every juror comes to court with existing and often unconscious bias. One of the more prevalent involves the idea that “stuff happens” or the bias that things are just going to happen as part of life and we need to deal with with them. This extends to the idea that society shouldn’t have to and can’t afford to compensate everyone for everything that happens to them because things just happen to people in life. Deal with this bias by showing that this is not a case where “stuff happened” but rather one caused by the defendant.
People believe generally in “personal responsibility” and “accountability.” When someone does something that harms another, there is a general expectation that the wrongdoer will take responsibility for their action and be held accountable for it. Apply this to the defendant’s conduct and the defendant’s failure to accept responsibility or be made accountable for the harm that they have caused.
Everyone has these and many other biases. It is our role to understand them, deal with them by the way in which we question our jurors or present our case and not ignore them.
ANSWER THE JUROR QUESTIONS THEY DON’T ASK
The jurors come to court with questions about what their role is and what the case is about. Too often in jury selection we launch into a discussion about factors in the case or issues of attitudes, but without dealing with the primary questions in the minds of jurors. Think about when you were a child and you had a new game to play. The first question you have would be: “what are the rules.” In a trial, the jurors want to know what are the rules? What is this case all about? What does the plaintiff say the defendant did and what does the plaintiff want? How about the defendant? What does the defendant say? Other questions that apply incorporate cases involves the question of the chain of command. Who is responsible for what? Organizational charts for corporate responsibility are important in those cases. Answer the unasked questions and you will be seen as a teacher and leader.
OPENING STATEMENT BASICS
I believe David Ball’s books on Damages are the single best summary of the basics for opening statement for plaintiff trial lawyers. Certainly, all of the recommendations and information in the books are valuable and important, but I particularly like the way he has laid out the steps for opening statement. The following is a poor adaption of much of his recommendations in that regard. If you don’t own his latest book, you should.
Start with the Rules
Start the discussion of what actions were wrong and why they were wrong. In other words, what are the rules and why are they important? For example: “A driver is required to watch the road and see what’s there to be seen. If the driver doesn’t, even for an instant, and as a result hurts someone, the driver is responsible for the harm. Now let me tell you the story of what happened in this case.” The brain is more attracted to a present tense narrative than a past one.
Starting with defendant’s conduct tell the story in the presence tense
Start with the defendant’s conduct. Tell the story in the presence tense as if it were happening now. It’s a story and not a chronology. It’s supposed to keep interest as it is being told. Use an active voice: “Jim looks at the light and it is green, so he begins to drive forward.” You are a video camera reporting a documentary.
Make it interesting
Don’t waste time and lose attention with preliminary talk other than “good morning.” Omit details and irrelevant information. Hit the major big points and leave out the rest. Don’t add anything more than is necessary. Avoid legal language. If you quote something, use the exact language of the rule or policy instead of clarifying in simple language. Do not be an advocate about your story. Instead, be a story teller of facts. That includes your demeanor and tone of voice. You are a teacher and not a preacher.
Avoid unnecessary dates, times and details
Don’t use a chronology approach with dates and times. Jurors won’t remember them anyway and they distract from the story. If you do need time, insert it at the start of the sentence as in “six days later the doctor…”
Make it short, simple and understandable
Communication is what the other person hears. Not what you think you said. Use simple, short sentences. Use the same rule as in cross examination: one fact per sentence. Remember, sensory descriptions strengthens the story: color, smell, sound, touch and taste.
Next, give them explanations
After you have told them the story, tell them why you are suing. The sequence is: (1) What are the rules (2) What is the story and (3) now, why you are suing. Explain experts will explain the rules and how rules protects people. Analogy in this regard are important as is explaining how dangerous it is to violate the rule.
Explain what defendant did and what defendant should have done instead by not violating the rules. Note that the easier and simpler it was to avoid violating the rule, the stronger your case. If jurors think they could have easily done the right thing they will feel more strongly about it.
Explain for each rule violated (1) who you are suing (2) what rule was broken (3) how the defendant did it (4) what is dangerous about violating the rule and who says so (5) how the rule protects people (6) how the violation caused the harm (6) what defendant should have done and (7) how that would have made a difference.
Review the defenses
Undermine the defenses. Start with defense contentions. Explain how you reviewed these defenses before you decided to take the case and what you found out about how valid they were. Explain why they aren’t really defenses.
Discuss burden of proof
Review the standard of proof involved and the general evidence that more than satisfies the legal requirement.
Discuss causation & consequences of injury
Explain you will now discuss the consequences of the violation of rules and conduct of defendant. Describe the chain of events that demonstrate the connection between the defendant’s actions and the damages resulting. Review causation. Cover the mechanism of harm. This is a clinical, simple explanation and without medical terms. It is a step by step description like domino’s falling.
Explain step by step how it changed your client’s life. Where there is a consortium claim, show how it intrudes on his wife and children. Detail the necessary fixes and helps and what cannot be helped. Use simple line drawings. Simplicity is always best here. Cover the personal consequences of each injury. Then review the before condition of your client’s situation even if in reverse chronological order because it has dramatic impact.
Review the economic loss and make it clear the evidence will deal with two separate and different types of damages: Economic and Non-economic. Discuss generally the evidence that illustrates those differences.
Conclude with what the jury can do about this
Address the question: “what do you want? in a general way by talking about your presenting evidence regarding the damages. Advise them you will present them with a way in which to appraise the harm and reflect a reasonable and fair verdict in dollars at the end of the case, once they have all the facts.