A SIMPLE SUMMARY OF TRIAL CONCEPTS

A SIMPLE SUMMARY OF TRIAL CONCEPTS

I was asked my ideas about trial advocacy. How did I view and approach trials was the question. Here was my very simple response to what is admittedly a complex question.

Trial Approach. I have for many years stressed to trial lawyers the most important thing they must understand to be great advocates is: “A trial is a battle of impression and not logic.” Decisions are not simply made on the basis of intellectual analysis of the testimony and evidence. Emotion plays a huge role. Neuroscience has proven what research has found, that is, the great majority of our decisions are made at a subconscious level and then ratified by our intellect with reasons for our decision. Furthermore, this is done without our realizing it.


Demeanor The trial demeanor I strive to adopt in trials is that of being calm and professional. I want to avoid any appearance of anger or bickering with defense counsel. I don’t need to be friendly, but I do mean to be calm and in control. I want to treat everyone, including the defendant, the judge, the court personnel and witnesses with appropriate respect. In my experience jurors have consistently objected to attorney anger, unprofessional or disrespectful conduct.

Understanding how we decide. Research has shown our decisions are greatly influenced primarily by three things: (1) our deeply held value beliefs (2) our significant past life experiences and (3) by our overall general impression of situations. The primary factors prevail over facts, evidence and logical reasoning. Consequently, we should prove not just a violation of a rule or standard or negligent act. We must show facts which involve a violation of accepted values involving a betrayal of a duty which implicates our own survival.

The importance of focus studies. We should survey facts, case evidence and case issues through representative groups of people. Repeated focus studies involving case issues and underlying motivators are an important part of case preparation. Mock trials, on the other hand, have a significant risk for inaccurate feedback due to the inability to accurately recreate trial evidence.

Case framing. An important step in trial preparation is deciding how to describe case issues. Once we have decided on the basic theme of the case including rules violated and motive or reason for the violation one has to decide how to frame these issues. This framing is usually helped by what we learn in the focus studies, but it may be necessary to conduct a focus study just for the framing. For example, “if this case was a book or movie, what title would you give it?”


The rule of three. In making lists or itemizing issues or claims of negligence, remember the research regarding “the rule of three.” No more than three items per issue because research has shown people remember things best if they do not exceed three items. Cases are decided on a focused case which becomes far more powerful than a case involving numerous claims.

The power of simplicity. Simplicity and brevity are an essential part of trying any case, but especially complex cases. I believe in applying Occam’s razor, which means I do not allow myself to be distracted by the numerous issues the defense will raise. I stay on theme and on track. It also means I am unlikely to get into technical disputes or expert literature arguments.

Jury Selection. As to technique, I favor jury selection looking for values, life experiences and attitudes through open discussion. The 80/20 rule applies here. Eighty percent of the talking should be by the jury. Of course, I’m interested in who are leaders and authoritarians but not as interested in demographics.

Opening Statement. It is best to start by focusing on the defendant – not the plaintiff. Start the story by talking about the defendant. That is because of the concept of “availability bias.” As you tell the story of your case, jurors will begin filling in the blanks, asking themselves questions about what you are representing and otherwise making the story complete in their minds even before you can finish. Human nature is such that they need to make sense of the facts. To do so, they will construct their understanding of the case as the story unfolds. If you begin with the defendant’s conduct they will begin by examining the context of the defendant’s behavior and not focus on what the plaintiff did or should have done. As you sequence the facts by starting with the defendant’s conduct you allow the jurors to concentrate on that story, making up their own reasons and forming their own ideas about this person before talking about the plaintiff. Jurors develop stories about what happened and look for evidence to support their version of the story. Consequently, the plaintiffs should always start by attacking the defendant. There are many ways to approach the story you are going to tell in the opening statement. You can assume the viewpoint of the defendant or the plaintiff or a treating doctor or even the object that caused the injury. As the evidence in the story unfolds it can be viewed through the eyes of many possible selections. Decide from whose view point you will tell the story because it makes a big difference whose viewpoint is used. It is always better to use visual aids during the opening statement which will help shorten, simplify and help understanding by the jury. This would include photographs of the scene, diagrams, the key documents in dispute and the like. You need permission to use exhibits, models, diagrams and the like in the opening statement. While most courts will permit the lawyer to write during opening, it is necessary to request permission to use other devices. This should be done before the trial begins and not on the morning of the trial. You should confer with your opponent to see if agreement can be reached before approaching the judge.

Direct examination. My direct and cross will be the client’s story and our theme. Argument will follow a basic format in which the judge’s instructions play an important role.

Cross examination. My cross examination of medical experts will focus on issues of bias or insufficient information or inconsistent with common sense rather than technical issues. I once cross examined an expert without ever asking a question about his opinion but focused solely on a website where he had advice on how to testify as an expert and help the defense. I will limit the exhibits to key ones that are consistent with the theme of the case. Irrelevant detail is the plaintiff’s enemy.

Final Summation. I’m going to appeal to what research shows motivates most jurors: to be part of something important, to have made a difference and to do the right thing. I present my cases as important cases in which the jury has the opportunity to make a difference for the better. to damages I will be careful to distinguish between economic and non-economic damages as well as the fact there are two time periods to consider, past & future. I will emphasize that the damage must equal the harm done irrespective of need i.e. economic loss. I will spend time on each element of damage in the jury instruction. Start where people want to start when faced with a task: What are the rules? Tell the story in the present tense as it is happening. Simple short sentences. Use an active voice i.e. ADr. Jones looks at it@ vs Athe arm is examined by Dr. Jones.@ Use one fact per sentence. Sensory description strengthens the story color, smell, sound, touch taste etc. Tell the broad story first and not the details until later. Do not pollute the story with too much information. Cut to the chase. After you have told the story tell them why you are suing so the stage is (1) What is the rule (2) the story (3) why you are suing. Explain experts will explain the rule and how the rule protects people. The analogy here is good. Show how dangerous it is to violate the rule. Undermine defenses. Start with defense contentions. Rule (1) do not do this until now (2) do say why your experts are right. Tell us why the defenses are wrong. Cover both causation and damages. Cover the mechanism of harm. It is clinical, simple and without medical terms. It is a step-by-step description like dominos falling. Use simple line drawings. Simplicity is always best here. Explain why you are talking about harm and damage. Explain step by step how it changed your client=s life. Show how it intrudes on his wife and children. Detail the necessary fixes and help and what cannot be helped.

2 thoughts on “A SIMPLE SUMMARY OF TRIAL CONCEPTS

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.