Category Archives: Trial Tactics


In early September of this year I did a demonstration of a final argument at a plaintiff trial lawyer’s convention in another state. I was able to listen to some of the other speakers and  I made some notes about what they said that made sense to me. Here are some random ideas I wrote down you might find helpful.

A speaker about jury selection made the point that  you should not ask the same question about an issue of each juror because the other jurors listening quickly begin thinking about how they will answer the question and you want get to them. This defeats the goal of getting initial gut reactions from jurors. Instead the issue has to be worded or approached in different ways.

Another speaker talking about cross examination had a number  of excellent ideas. These include the following:

Defense experts

  • He asks what they were paid. He asks what they reviewed. He asks to see the material. He asks if they charged for the time they took in reading the materials which he has taken from the witness. He then goes through each one and asks them if  this document was really relevant to the area the expert was asked to talk about. His experience has been that lawyers send everything they have to the expert so the expert can say they looked at everything, but when the really relevant materials are separated  out it is usually a very small amount compared to the total. He makes the point that the expert really only relied upon a small amount of material even though he and the defense lawyer made a point of  showing much material was  reviewed in arriving at his or her opinion. He also points out that the bill, however, included his time in reviewing the non relevant.
  • He asks if the witness if  it isn’t true that he or she want  the jury to believe their opinion is the right one. He expands on this which implies bias. Then he asks “You understand that if  the jury believes you, the plaintiff gets  nothing, but you still walk out of here with your $______fee?”
  • He asks  if the witness is biased because experts are reluctant to admit any bias  and they look foolish denying. He pursues this point with questions about indications of bias e.g. number of times testified for defense vs plaintiff, fee etc and ends with question like  “not even biased a little  bit?”
  • On cross examination  of cost of care witnesses, he asks if they have hired any help at their home – cleaning etc. He asks what they are or have paid per hour which is usually a lot more than the minimum wage people they claim the injured plaintiff can get by with. he  has even handed them a local paper ads and asks them to find someone willing or qualified to do the work he says is needed for the minimum wage amount he has assigned for that work.
  • He always reviews the jury instructions that will be  given and crafts his questions in that language for direct and cross examination since that is the language the jury will hear. Some witnesses, on cross examination, argue about accepting the language or otherwise testify about  the question in a way that allows motions as well as favorable jury argument.
  • He argues that in trial  as well as examinations, especially cross examination, any “rules” should be overly simple and obvious to not allow confusion or allow argument. He believes lawyers most often make them to complicated and too long. An example of a simple rule would be: “When you drive you should allow enough room to stop.” This is a lot better than “The rule is that drivers should  drive in such a way to anticipate a car in front might stop and must allow sufficient distance, in the exercise of reasonable care, to safely stop.” The rules should all be based upon the jury instruction that will be given.

Ten rules for being a good trial lawyer

  1. HONESTY IS ALWAYS THE BEST POLICY. You must be always be honest with others and especially with yourself. You must be willing to face the truth even when it hurts. This commandment is especially true in presenting a client’s case to a jury. All people are equipped with internal detectors about lies and when youput a group together their collective ability is even more sensitive to falsehood. Scripture teaches us this fact. “The man of integrity walks securely, but he who takes crooked paths will be found out. ” (Proverbs 10:9)and “You shall know the truth and the truth shall make you free” (John 8:32)
  2. ETHICAL ISSUES ARE SIMPLE: ALWAYS DO THE RIGHT THING When you stop to honestly examine issues that arise in your law practice you will find that you inherently know what the right thing is you should do. But, we are tempted by the human frailties of greed, pride, power and the like to rationalize and justify. The problem is that when we don’t do the right thing it has a way of punishing us later. Somehow, truth always comes out in the end and our short term benefit is never worth the consequences.
  3. ALWAYS PUT THE CLIENTS BEST INTERESTS FIRST The other rule that is connected to ethical issues is that in every situation if we put the client’s interests before all others and especially our own we will make the right decision in ever case. You have a question of conflict of interests? What’s the right thing for the client. You have an question about settlement? What’s the right thing for the client. In every situation this is the litmus test of making the right decision.
  4. IF YOU WANT TO AVOID DISPUTES & MISUNDERSTANDINGS, CONFIRM IT IN WRITING We have a lot of dealings in our law practice and disputes as well as misunderstandings are part of our communication problems. Make it a standard practice after a conversation or phone call to send a confirming note. It can be E-mail or a letter and it doesn’t have to be in “legalize” or should it be insulting. Just confirm the understanding you have and avoid disputes.
  5. NO FEE IS WORTH THE PAIN OF A PROBLEM CLIENT No matter how attractive the case or how large the potential free, learn this iron clad rule. The pain, anguish and frustration of a problem client is simply never and I mean never worth whatever fee you might earn. One of the reasons you became a lawyer was to have independence so exercise good judgment and send the problem clients somewhere else.
  6. PICK YOUR BATTLES Life is not fair and justice is a goal but not always a reality. There are situations where the cards are stacked before the are dealt. In those cases you need to evaluate what is possible and what is not possible. Changing an existing condition may be possible and you should have the courage to act even where the odds are against you. There are also situations where no matter what you do you are not going to succeed. Unless you enjoy being a martyr recognize the facts.
  7. THERE IS NO CRYING IN BASEBALL OR IN TRIAL WORK You learn quickly as a trial lawyer there are lots of things about the trial system that are unfair and not right. If you are a woman trial lawyer you will probably recognize rather quickly about gender discrimination. The young trial lawyer may experience the discrimination of the older members of the profession. If you are representing clients charged with a crime you will learn how difficult it is to get justice. There are so many reasons to complain about the system that are not going to change anytime soon that if you dwell on them, you will not grow into the kind of lawyer you should become. You should conduct yourself as a professional and be firm about who you are and your role,. However, don’t spend your time whining to your friends about it. It’s a waste of time, Toughen up. Trial work requires courage and determination.
  8. BE YOU AND NOT SOMEONE ELSE Don’t waste your time trying to be someone else you admire. Learn from those who have something worthwhile to teach but always make it yours. You are unique. Over and over I see lawyers I would never expect to be successful based upon appearances who are, in fact, great trial lawyers because they are totally authentic – warts, bumps and all. People respond to authentic human beings so be the unique person God created when he created you.
  9. WHATEVER YOU TAKE ON GIVE IT YOUR BEST EFFORT Everyone should evaluate legal work you have accepted and be prepared to re-evaluate it at every stage, but in all things give it your best effort. Nothing is worse then a half hearted trial lawyers. If you accept the work, then give it your best effort at all times and I all things.
  10. FOR A SHORT COURSE IN HUMAN NATURE STUDY DALE CARNEGIE Dale Carnegie taught courses in success and was a best selling author on the subject in the 1920’s & 1930’s. He wrote what is probably the most accurate encyclopedia of human nature in 1936 with his book How to Win Friends and Influence People which remains today a best seller and has been translated into thirty one languages. Trial lawyers have a justified reputation for being loud, combative and often obnoxious people. Too many of us haven’t a clue about the makeup of people who serve on a jurors, our clients or the judges we deal with. This simple, interesting and very accurate book, with an unfortunate title, is all one needs to rectify this failure on our part if its teachings are put into practice

Observations about recent jury trials

I had two friends lose their jury cases last week and another one win his. It caused me to think about why that might happen and how we approach our cases is so important to the outcome. Here are some rambling personal views about the subject.

In one of the cases the trial tookfive weeks, but it only took thejurytwohours to bring in a defense verdict. That very likely means they never changed their minds from the start of the trial through the whole five weeks. Before the trial, the lawyer had presented the case to agroup of us. Afterwards,there was no one in the room who wasn’t mystified as to how he could win the case. He is a very good trial lawyer, so why was he convinced he could win a case which everyone else thought was slim at best? I suspect it was because it was a short time before the trial was to start and he was at a point where he had invested thousands of dollars, countless hours and was in a situation he could not extricate himself from. The rest ofus saw his case as dead on arrival, at least on the theory he was advancing, but not the lawyer who was going to try it.

Another friend who lost her case said that she realizedat a point in the trialshe was in real trouble and afterwards saidshe thought her case was not one that could be won on the basic issue involved.

I would suspect that in the first case the lawyer ran focus studies, but I would speculate they weren’tdone correctly. I also am willing to wager he did not try to find with his focus studies different themes or ways to present the same facts that might get him some jury votes. I’ll bet he used the traditional mock trial approach instead. I think he tried his case on a theory that simply went against jurors views and values. II don’t think he triedto reframe the facts in a different way. For example, changingthe theme from a negligence suit to a breach of public trust in the city never needlessly endangering the people using it’s roads.

Ialso think that lawyers who try to apply some of the techniques they have learned from the Spence trial training sometimes believe that if they apply the techniques they can overcome the negative fact pattern involved like some magic elixir. Often these same lawyers will take the information from the Spence training apply it in strict literal manner. However, I think it is a mistake to simply parrot the words Gerry uses or apply the specific teaching in a rigid manner. It is essential we understand the concept behind the approach and be flexible in it’s application. It is also essential to use focus groups in a case like these to explore different frames of the same case to see if you can find one that does resonate with them.

When we approach our cases thinking like lawyers that means we are very likely not thinking like the jurors who decide our cases. We are too proud of our intellectual ability to regard what think are significant legal matters, as irrelevant to the outcome. We cannot abandon our legal elitism to view the case through the eyes of ordinary jurors. Yet, to the extent we are able to ascertain the underlying compelling issue in cases we are successful or unsuccessful. Anyway that’s my view.

In addition, when we suffer a loss, it’s important to remember Nietzsche’s famous statement "what does not kill us makes us stronger" and I don’t mean that in a flippant way. I mean that painful experiences like this, when we have the courage to analyze them, are huge gifts to us in learning and even in growing into better trial lawyers. It’s important that we need to learn new ways of looking at our cases and by abandoning our legal evaluation process to one in common with jurors viewpoint. The big picture always overrides all the details no matter how significant legal scholars think they are. Part of the answer to the question is whether we can re-frame the case into a different issue but with the same facts.

In another’s friends recent case he used a jury questionnaire and complained it resulted in the loss of good plaintiff jurors. I am in the minority, I think, in believing written questionnaires benefit the defendant far more then they do the plaintiff. In our last trial I drafted a two page questionnaire and the defense responded with a sixteen page one. I was successful in arguing none should be given under those circumstances. Comprehensive questionnaires are fraught with danger that most of the people you eliminate are the ones who help the plaintiff. Not everyone agrees but I don’t like them in general.

In the same case the judge made multiple rulings that were against the plaintiff. In spite of that he won. I told him that hiscase is a classic illustration of what I firmly believe, namely that overriding issues determine the outcome and the rest of what we do during trial merely helps or hinders the appreciation of the issue by the jurors. Read a book like Gladwell’s Blink and you will see the research which supports this. Read any research on the reptilian brain and you will see why the outcome is determined not by all the rulings we anguish over, but the overall impression of the issue as viewed by people’s life experiences and reptilian drives.

This same lawyer said that while he won the case, two jurors told him they resented his filling in the answerson the jury form. He said that was a mistakeand didn’t intend to do that again. I told him I thought he should show the jury how to answer the questions on the jury form and that it was probably how he did it they resented.David Ball agrees as do the great majority of consultants and trial lawyers that explaining the jury form and indicating why they should answer the questions as suggested is a good idea. However, it is very important how you go about it. Ibelieve you should emphasize to the jury that they have total power to do what they believe is right. No one can tell them what to do. The filing in of the verdict form should not be done in a way that undermines that fact, but instead is an explanation of the significance of the question, the reason you feel it should be filled out and how, if they agree, it would be filled out.

The same lawyer said that while his case was against an insurance company for bad faith he left on the jury an insurance company a claims person who was on his side. I think that the days of selecting jurors by demographics or stereotyping is long over. Fat people are not always generous and not all insurance people are anti plaintiff in the right kind of case. It is our life experiences that are important and our deeply held value systems. Why else would good, hard working blue collar Democrats vote for an elitist rich millionaire like Bush? Because he promoted values they agreed with and they were willing to vote against their own self interest – to shoot themselves in the foot because the values were more important. That’s why our jury selection process should be less about jury profile information and more about how people feel and what their significant life experiences have been.