I was privileged to be invited by Wyoming trial lawyer Gerry Spence to teach at the first Trial Lawyer College held in 1994 at the Thunderhead Ranch in DuBois, Wyoming. I taught there each summer for the next twenty years until my retirement from active law practice. Here are some notes of ideas from the July 2015 program which I believe still are relevant today.
Gerry Spence General Advice
If you are a genuine & real person, more real than your opponent, you are unbeatable. You may lose a case, but you will never be defeated in your determination to win.
Credibility is essential in jury trials. Expose your core feelings to the jury. Your core emotions result in your being real and being vulnerable. Vulnerability communicates credibility and trust. Being genuine means telling the truth and that results in credibility.
If you want someone to trust you, you must be trustworthy.
You cannot ask the jurors to do anything that you, yourself, are not willing to do. If you want their honesty and trust, you must be honest and trustworthy with them.
Tolerate the fear of being unprotected before the jury and move outside your comfort zone.
Knowing the Story
You have to know your story before you can tell someone elses story to a jury. Know yourself first. Then know your client’s story.
Keep in mind that there is the story being told, and the story that is being heard. They are not always the same. What we say is not always what people think you said. Make it clear and understandable.
Keep the trial in the present tense and first person. Working in the present conveys the action in the story. Narrate the story like a movie for the jurors. Describe what you see as a layperson to a layperson. Your description should be like telling the jury: I am going to play a movie for you.” A story has a beginning, a middle, and an end. Describe it from an observer’s point of view without adding your conclusions or analysis. Tell it in the first person from third person viewpoint & perspective. Keep in mind, there are infinite beginnings, for the story, a finite number of middles, and only one end.
The story becomes more credible when we lose the lawyer-ese and the legal conclusions; just let jurors form their own conclusions and become part of the action. Use details that evoke sense of sight, smell, sound, taste, kinesthetics.
Learn how to tell the story from several viewpoints. Mentally reverse roles with the people you are communicating with in the courtroom. That includes from the (1) jurors’ standpoint (2) judges standpoint and (3) defendants standpoint
Voir Dire Concepts
1.Remember the importance of body and voice concepts:
Use eye contact with each juror. Each juror is your partner when you connect with them.
Pace of speaking – slow and clear
Hands – not in pockets, not behind your back, not protecting your crotch
Physical (props, podium, etc.) are a barrier
Be conscious of your breathing and voice
Nonverbal communication is very important: Be aware of posture & body language
2.You want a jury who loves and trusts you. You want it to be your group, your clan, your tribe, so that it belongs to you. The primary goal of voir dire is not applying rules of demographics. It is to find out individual jurors values, their past life experiences and strong bias. These are the primary factors that control the juror’s final verdict.
3.This is the basic outline for voir dire generally:
Identify those issues or matters that trouble you most about the case
Explore your personal feelings about the issues that trouble you
Determine why you are troubled and decide how to discuss them with the jury
Share your feelings about the issues with the jury
Invite the jury to share their feelings about the issues with you
Accept (honor) the gifts the jury gives to you by their answers
Continue to share your feelings and invite the jury to share theirs
4.You cannot ask people to do what you yourself are not willing to do. That means you have to honestly share your concerns about the case issues or client before you can ask the jurors to share their honest feelings with you. When you get honest answers that you don’t like, dont run from them. They are gifts. Be appreciative of the gift. Sincerely thank them for it. Honestly respond without trying to talk them out it.
Spence on Talking About Money in Voir Dire
“How many have heard about greedy lawyers? Maybe we should talk about that for a minute. We dont like them, do we? So, let’s talk about it. You know that the only justice the law permits is money. There is no other remedy for justice in an injury case than money. Since justice is money in this case, I want all the justice I can get, all of it, every penny. If justice were loaves of bread, I would want all of them. I have asked in this case for $20 million as justice. I know $20 million won’t fix what has been done to them, I know some of you are thinking: “ How can you ask for that kind of money?” But what would you have me do? Money is the only justice the law allows for this wrong. How did I come up with that figure? Well, I read a story recently about syndicated racehorse that sold for $20 million. I saw that and thought, this family’s loss is worth at least that much. Since there is no magic formula, can you make room for the possibility that $20 million is justice in this case? Some people worry that a lot of justice, a big verdict, might cost them something. Does justice depend on what it costs us? Should it? What do you think about that? I dont believes that you would put your interests before justice.”
Luvera on Trial Concepts
1.Excerpts of Luvera’s ideas about good trial procedures
Always be brief and make everything simple & understandable. Make your point and stop.
It takes courage to be a great trial lawyer. Be courageous and act outside your comfort zone.
Honesty is not only the best policy; it is the only policy to follow in trial. Always be truthful.
Remember most communication is non-verbal through posture, voice and appearance
A trial is always a battle of impression and never one of logical argument or evidence.
2.People will follow their deeply held personal values in deciding issues even it is inconsistent with their personal self-interests. Therefore, always determine personal values and frame your case issues consent with commonly held beliefs and values. People use past personal experiences to guide them in deciding issues. Learn about significant past experiences in voir dire. Basic bias unconsciously influences decisions. Frame issues with that in mind.
3.Use controlled passion in your demeanor. Be calm. Calmness is a sign that you are right and in control. Use strong words, not weak ones. Remember the Bushido Code,” the way of the warrior” which involves loyalty, courage, veracity, compassion and honor. Be a warrior.
4.When it comes to experts, research shows jurors are more impressed with practical experience than qualifications or degrees. The clearer the expert can make the complex; the more acceptable jurors are of their opinions.
These are a few random notes from a couple of days one summer at the College eight years ago. Hopefully it outlines a few helpful insights that are still relevant today. I hope it encourages you to explore in greater detail some fundamentals of being a great trial lawyer. Always remember the most essential quality of a great trial lawyer is being honest, open and truthful. A genuine and open person is a trustworthy person. Jurors look for someone they can trust and that should be you.