This post is for lawyers just starting a plaintiff’s practice. I want to outline the fundamentals of winning so they don’t get lost in all the complex discussions about psychology of trial. So, let’s look at some of the basics observed by trial lawyers who win cases. Here are a collection of 12 rules which will improve your chances of winning a trial.
- SIMPLIFY YOUR CASE The most common mistake lawyers make is to over try and overcomplicate their case. How do you simplify a case? Number one: be able to state what your case is about in a single sentence. Think of the salesman’s “elevator pitch.” That is the ability of the salesman to pitch the product while in the elevator to the customer before it reaches the next floor. If you can’t describe your case in a simple manner you do not understand your case well enough to try it. Number two: make sure the evidence you decide to produce at trial supports the single central idea of your case. Number three: explain the defendant’s conduct through a unifying motive and intent. Number four: present your evidence in a chronological order using a timeline for jury assistance. Number five: simplification comes from preparation and organization. You will not be able to simplify the case unless you have it organized and prepared.
- APPEAL TO SELF INTEREST. Keep in mind what motivates the jury. It is not concern for your client. It is the question in the jurors mind either consciously or self-consciously: “how does this case affect me, my family or my community?” Self-interest is what is the most important thing in the jurors mind. The number one way to make people listen is to show them what’s in it for them. That’s why the concept of appealing to the primitive brain is valid because the chief concern is survival and reproduction of the species. That’s why rules appeal to jurors because it involves self-interest when rules are not followed.
- JURY SELECTION IS A CONVERSATION NOT AN INTERROGATION. Your goal in jury selection is to encourage discussion through questions about feelings and opinions. Its goal is not to disqualify jurors but to create a small group motivated to listen to you because they trust you. Keep in mind personal zones of privacy when you stand in front of the jury. Stay back far enough to honor this factor.
- ANSWER THE JURORS UNEXPRESSED QUESTIONS: The jurors all have questions and you should answer them. These questions include what is this case about? Why has this lawsuit been brought and what does the plaintiff want? What does the defendant say? You should be the lawyer that answers the questions for them because they also look at who is telling them. They look for a leader, a teacher, a guide and someone they can trust. That should be you.
- OPENING STATEMENT SHOULD PAINT THE PICTURE OF YOUR CASE SIMPLY. Opening statement is a time when you tell the jury why the lawsuit has been brought, what you are asking for and why and supports your case with the major evidence you will present. You may or may not decide to give them a figure you will ask for depending upon the circumstances of your case but you must discuss damages and at least promise that you will show them how to appraise the damages at the end of the case. You need to discuss defenses and the evidence you will present in that regard. Your case should have a single theme and should be framed in the best possible way. The combination of jury selection and opening statement is the heart and soul of the case because people make up their minds very early in a trial and once having done so are slow to change their viewpoint.
- ALWAYS TELL A STORY we know that everyone is mentally geared to listen to a story. Children say “tell me a story.” Someone on the phone says “have I got a story to tell you.” And they have our attention. Your case should be a story. One that is told from the beginning of the case through the entire case including cross-examination. Be a good storyteller and learn how to tell a story right.
- REMEMBER THE IMPORTANCE OF NONVERBAL COMMUNICATION: We know that nonverbal communication is probably more important than verbal communication. How we stand how we talk how we act all communicate more than the words we use. Where do we keep our hands? Are our gestures congruent with what we are saying? Is our stance open with our hands open to the jury? Nothing is more critical than eye contact. As long as the juror witness or judges talking we need to maintain eye contact. The greatest fault of most lawyers is talking too fast and too much. Remember timing and pauses. They are important.
- MAKE DIRECT EXAMINATION PERSONAL: we need to learn to make our direct examination personal and not a stilted chronology. After we have the required identification information we should explain why this witness has been called by a simple question to the witness such as: “you are the doctor who treated Joe Brown and are here to tell us about your medical conclusions and treatment correct?” With non-expert witnesses one should consider a personal approach like “how do you feel right now?” Or “what is it you would like this jury to know. Try to make the witness human with some personal background and by your demeanor. Do not make it sound and look like a police interrogation of an accused. Always make a story.
- IN CROSS-EXAMINATION STICK WITH THE BIG POINTS. Jurors are not interested in nitpicking attacks on witnesses. If you have a major impeachment point use it but don’t bother with the minor details which will make you look like you are wasting time and picking on a witness. Remember, cross examination doesn’t have to be cross. Your demeanor should be professional and generally courteous. Finger shaking is only for the movies.
- FINAL ARGUMENT NEED NOT BE LENGTHY TO BE PERSUASIVE the key to winning cases is to make the case as simple and as persuasive as possible. Even lengthy trials do not necessarily require lengthy summation. If one has correctly told the story and consistently maintained the theme throughout the case then summation is the retelling of that story supported by key evidence. Damages should be explained in terms of past and future time periods. Economic damages should be carefully distinguished from non-economic damages. Jurors should understand that economic damages pays bills due others and it is only non-economic damages that represent justice for harm done. Therefore the damages appraised for non-economic harm represent pure justice. It is a sum of money which the jurors have found equals the harm done. That assessment is made without regard to the needs of the plaintiff, the wealth or poverty of the plaintiff or any other factor than the question: “is this sum of money equal to the total harm done to this person?”
These are the basic rules for winning cases. They are not complicated, but they are valid. Good luck in applying them. They are important.