- Screen all new cases objectively and not emotionally. There are cases where the inherent issues are so negatively compelling and your odds of prevailing so slight it is a disservice to the client and the system to accept the case. Your decision of whether to carry the case forward should be objective and not emotional based upon evaluation of the liability, the extent of damages and the ability to collect damages.
- Identify the controlling issues. You must objectively identify all of the strong issues in the case, good and bad. Your role is to initially analyze the affirmative and negative issues objectively, not subjectively. The benefit of an issue focus study is this identification. The most accurate identification of significant case issues is done by focus studies, but only when done correctly. They must be issue conducted focus studies and rather than a form of mock trial studies. On major damage cases more than one study may be necessary.
- Determine the priority of importance of the issues. You arrange the issues by priority of significance. Once the issues are arranged by importance, the next step is to decide the best way of framing the issues for trial. Framing these issues is critical to determine if the negative issues can be overcome and how difficult they will be in trial with a jury. This is a critical step – to identify all issues that have significance with people and what framing is best. Focus studies are helpful in this regard.
- Objectively analyze your client impression. In many cases client impression with the jury will determine the outcome of the case. Your gut reaction to client impression at the initial meeting is probably accurate. Over time you are more accepting of bad traits and finally you lose sight of the accurate impression your client makes with others. Most client impressions can be improved by spending quality time with them over issues in the case but this requires dedicated work. Accept that there are some people whose impression is so unfavorable you should decline the case no matter how compelling the case.
- Control the complexity & length of trial. Cases with difficult issues call for shorter trials with a short simple one theme approach. The longer you take to try a case with negative issues, the more obvious the problems in the case become. Cases with difficult issues are not helped by adding layers of evidence and lengthening the trial. The longer you take, the more you add, the more complex you make it, the worse your case. Simplify the case into a strong affirmative issue and make the trial short. Your goal should be to shorten the trial. There are good reasons why we should be making every effort to shorten our jury trials. First, people today want sound bites and headlines rather than the story. That’s how they get the news and use their digital devices. They get bored easily and a bored jury is not a generous jury. Second, the more days your trial will take the less the quality of available jurors. Jurors are not willing to serve in trials last two or more weeks because they have their own lives and most lose salary. The ones who are willing are not jurors you want. Unhappy jurors are angry people who are not likely to help others. If you have jurors who do not want to be there because of the length of the trial you can be sure they are defense jurors. The longer your trial the more unwilling and unqualified juror you end up with. Third, the longer the trial the greater the chance something bad will happen to your case: a witness becomes unavailable, damaging unexpected evidence etc. Since impressions are formed early, you should strive for shorter trials. Eliminate the unnecessary expert and the unnecessary evidence, shorten your direct and be relentless in making your cross on really big issues only.
- Be the first lawyer to talk to the jury about difficult issues. There are two fundamental reasons for this. The first is that it inoculates the jury for the issue so when the defense brings it up, the impact is greatly reduced. The more they hear about negative issues, the less significant they become. This also gives you the opportunity to frame the issue in the best possible light. The second reason is that it gives you credibility for being honest about negative issues. Our credibility is increased by acknowledging problems in our case. It is not enough to bring it up once in voir dire and never mention it again. I am talking about facing the negative issues in jury selection and carrying it forward throughout the trial.
- Jury selection should be an open discussion and not an interrogation you don’t have time for both demographic questions and open discussion. You are after significant values and past life experiences that relate to the key issues you have identified. Jury selection must be an open discussion and not a closed question inquiry. Talk about the issues openly and really listen to the answers. Let other jurors respond to the negative juror responses, not you.
- Recognize the trial is about jury impression of the case and not primarily about you. Jury impressions are made early and are lasting. Once made all evidence is filtered through the existing impression unless something very dramatic occurs to change impression. Trials are not about the skill of the lawyer. They are about the overall impressions the jurors form. They do not weigh evidence logically. They decide largely on an emotional, unconscious level and use rational reasons they make up to justify decisions. Therefore, at all times during trial, the lawyer’s focus must not be on himself or herself – “how am I doing?” – But rather on the jury, “what is the jury thinking right now?” Focus on the jury not on yourself. Continually look at the trial as if you were an observer. You aren’t there to perform for the jury. They are forming broad impressions of who should win based upon the big picture and the issues. They aren’t there to admire the lawyers. That’s why “bad” trial lawyers win cases against “good” trial lawyers.
- Be an authentic person. While the trial is not about jurors evaluating the trial skills of lawyers, they form impressions about lawyer’s honesty, credibility and trustworthiness. Being real and being truthful results in the jury being willing to rely upon your representations and recommendations. Jurors trust you not to mislead them if their impression is you are truthful and trustworthy. This impression has very little to do with lawyer skills and techniques but everything to do with deciding the lawyer is not pretending to be someone they aren’t. Good looks, trial skills and oratory aren’t nearly as significant as someone who is seen as truthful and trustworthy. Don’t pretend to be someone you aren’t or act like someone else.
- Involve the jury. From voir dire on, the lawyer must involve the jury continuously. Too many lawyers, from opening statement to argument, ignore the jury. Great ones continually throughout the trial involve the jury. They maintain eye contact from time to time with all of the jurors but not in an uncomfortable way. During questioning of witnesses they take the time to take a look at the jury. They use “we” and not “I.” They find reasons to talk about the jurors “I think the jury would like to know…” and they let the jury know they are trying the case to them and not as spectators at the lawyer’s big performance.