THE FUNDAMENTALS OF PLAINTIFF TRIAL ADVOCACY FOR CLIENTS

THE FUNDAMENTALS OF PLAINTIFF TRIAL ADVOCACY FOR CLIENTS

I’d like to share with you a few thoughts about being a trial lawyer. They are not particularly profound, but I think it important to remember the fundamentals of our profession as plaintiff trial lawyers.

What should be our core message?

 In America, any citizen has the ability to make a responsible company or person accountable for bad service or a defective product.
 Americans have the unique ability to change behavior of corporations and hold them accountable for goods and services they provide our citizens.
 America is improved by holding people accountable for their behavior. We must keep the justice system strong because it keeps people accountable, and it improves
 America by helping make changes for the better.
 The most powerful instrument of change in America is the civil justice system.
 America improves in direct proportion to keeping its civil justice system strong

We can capitalize on what most people already believe and incorporate that into our case as a core message. Research suggests that people identify with these general themes:

When we address jurors, we must emphasize the positive. These ideas should be folded into our case. Secondary core message We also know from research that most jurors already believe generally:

 All people are entitled to be treated justly, fairly and equally under the law ¾ Truth is good and lies are bad
  If a person owes a debt, they should pay it
 Americans root for the underdog

We have learned from jury surveys that most jurors have common expectations and objectives about their jury service and the verdict in the case:

 Jurors are genuinely interested in arriving a t a logical and fair verdict
 Jurors genuinely want to “do the right thing” and make their jury service meaningful\

They want their verdict to mean something – make positive changes We need to be aware of the revised meaning of words in the minds of people. The word “victim” doesn’t mean to everyone what we think it means. “Victims” are the people who are sued by greedy lawyers in the minds of many because as they see it, people don’t sue people – rather lawyers sue lawyers. Therefore, how we use titles and words communicates different kinds of approval in the minds of others.

Mentally put yourself in the judge’s shoes and the jury box

What is communicated is not what you said but what the listener believes they heard. In jury trials, you must constantly ask yourself: “what is the jury thinking or hearing right now?” When you are deciding what to ask, say or show always reflect on what effect it will have on the only audience that matters, the jury. Make it a habit to see everything through the eyes of the jury. Before you offer evidence or words, ask whether it’s important to your case. Don’t waste time or words on things that the jury won’t think are important. Before you ask a question, first ask yourself if it’s something the jury would ask or want to know. Remember, there are several individuals on the jury rather than just one person. Each processes information in a different way. Each views life and the evidence in a different way. Appeal to a variety of different methods of processing information.

Involve the jury to the extent it’s proper. If you can demonstrate something on yourself when questioning a witness or making opening statement or final summation, do so in such a way the jury can duplicate it. Keep an eye on the jurors. Look at them often so you know what they are doing, where they are looking and how they appear to be reacting. Someone has said to not do this is like driving through rush hour traffic with your eyes closed. When trying a case to the bench, look at the situation from the judge’s viewpoint. What does the judge want? Probably he or she wants a presentation that is brief, to the point and not boring. They expect you to be prepared. To focus on the relevant. To get to the point quickly. Persuade with logic, but also emotion. Analyze the judge. Find out if there are rules or policies peculiar to that one judge. Talk to court personnel and approach the presentation in the manner the judge expects rather then what you prefer.

Tell them a story but make it a true one

Legal writers are discussing story telling as if it were just discovered as a method of communication. In fact, good advocates have known for many years the importance of telling stories in persuasion or communication. After all, it was one of the chief ways in which the founder of Christianity taught his disciples. All cases are in fact a story. Any part of the case can be presented through a story. The important thing is to use the technique of storytelling to focus on the main points in an interesting fashion. “Once upon a time” may not be appropriate, but “John Wilson started out the last day of his life a happy man” could be. Both are openings to a story and immediately attract attention to hear the rest.

Give them a reason to find in your client’s favor

Jurors don’t vote money verdicts as a reward or out of sympathy. They vote in favor of a damage verdict because they want to do the right thing. They want their jury duty to be meaningful. They want to do justice. They need a reason and a purpose for voting the way you ask them to vote. They want to feel that somehow their jury service will make a difference and will mean something. You must communicate how doing what you ask will result in doing justice, in doing the right thing, and in making the community a better place for having done it. They want to feel proud of what they do. Help them feel that way by showing them why a vote in your client’s favor will accomplish it.

Swim like a duck at all times

People do not want their leaders to be worried, uncertain or defeated. Appearance is everything and impressions critical. No matter what happens remain calm and confident. Think of a duck. It is very calm on the surface of the water, but underneath it is paddling like crazy! Remember that a trial is a series of battles, and one battle doesn’t mean the war is over. Relax. Courage is grace under fire. No matter what you think, it is not the end of the world unless you let it be such. Without conceding, remember that honesty is the best policy. The unexpected answer may sting but to pretend it didn’t happen without dealing with it is probably a bad tactic. Be up front and meet the issue head on. Attitude and belief in your cause is a very essential component of persuasion. You cannot try a lawsuit from your knees. Stand up to the issue with confidence. Studies have shown that acknowledging the point and then showing why it isn’t valid is far more persuasive then denying the existence of the point at issue. In the end, it’s all a matter of attitude and how you deal with crisis. You are as important as the facts of your case

Good results for clients start with you as much as they do the facts of your case.

You have to be someone the jury will listen to and who projects honest, sincere belief in your client’s case. That requires an attorney with the right motive in representing injured people. To be believable, your motive should not be greed or ego gratification but a genuine desire to help people who need assistance from you. Real honesty is required. Honesty about you as well as your case with all of its faults. You can only hope to win by being totally honest about what problems there are with your case. Those things which you fear, and wish were not part of the case. It is only by exposing them yourself and presenting them from the standpoint of your client’s case that you can hope to overcome them.

Try to conceal or mislead and they will always be discovered with a reaction that is deadly to your case. People can spot a phony instantly. All people have an inbred ability to feel the insincerity of one who is trying to sell or persuade. You may fool some of the jurors for a while, but your lack of sincerity will soon be sensed by the majority of the jurors. To start with, one must put themselves in the shoes of their client. They must understand and fully appreciate everything that is involved in who the client is, what they are going through and how it affects them. As part of your trial preparation and trial techniques learn to put yourself in the position of the jurors, the witness, the judge and the defense lawyer. Try to see things from their perspective so you can better deal with the issues and problems that occur in the case.

I’ve had the privilege of being invited by Gerry Spence to teach at his Trial Lawyer’s College in Wyoming each year until my retirement from the practice of law. During that time it was conducted at his ranch outside of Jackson Hole. Wyoming. The training didn’t emphasize trial technique as most trial training courses do. Rather, the emphasis was on the character and attitude of the attorney. Role reversal with professionals in psychodrama was an essential part of the program. Lectures by professional story tellers and other non-lawyers were provided. A considerable part of the program focused upon stripping the lawyer of a false front and teaching them to be totally open as well as honest in representing people. This approach is not only ethically correct but based upon proven principles of persuasion. We all need to learn this lesson if we want to become better representatives of our clients.

Remember: A trial is a battle of impression, not logic

Law school folklore says logic convinces and the weight of the evidence prevails. This folklore would have us believe you can tell a juror to “disregard” and not consider something they heard in the courtroom, and they will be able to do so. We know that is not true and is contrary to human nature. Decisions are in fact made at gut level first and then rationalized intellectually. We know that telling someone to ignore the elephant in the room does not work no matter who tells us to do so, including the judge. We know that human nature prevails over lawyer folklore We must learn from the advertising studies and many jury studies by social scientists. We must keep learning because, as the song says: “…the times, they are a-changing…” It’s our job to continue to study and learn ever-evolving principles of communication. We, as lawyers assume everyone thinks the way we do, but they don’t. Focus studies are needed. Follow those issues – not your ideas.

Always keep your presentation short and simple

Focus your case. Evidence is like an iceberg. The bottom may be huge, but only the tip is significant. Find the essential evidence and keep it focused. Only a small amount of evidence is truly important to the jurors. Identify the issues that count. Stick with those – over and over. Ignore the rest. Be a storyteller. Contrary to the saying, talk is not cheap when we are talking about a jury trial. Time is money and too much talk is deadly. Milo Frank wrote a book: Get Your Point Across in 30 Seconds and the title says it all. His book is an excellent summary of the basics of communication. We know that 77% of people get 90% of news from TV (not the paper). Television news items are 1.5 minutes max: introduction, photo & story. Note the success of news which is focused and brief such as USA Today and People magazine.

The human brain only needs 15% of its ability to follow talk, leaving 85% left to drift. You should be able to describe your case as if it had to be sent in a ten-word telegram. Years ago, a lot of advertising was done on things the size of match books. A lot can be communicated in a small amount of time or space. To assist in shortening the essence of your case, use a theme. The jury will use short cut reasoning to arrive at their decision. They will use short concepts consistent with their value system. This means they will use their own theme if you do not have one acceptable to their reasoning process to offer. Proverbs are useful in this regard. Use simple and easily understood words.

Most important, tell a story – an interesting story. Your approach should be to tell the story first and only then offer reasons why they should find in your clients’ favor. Introduction Luvera’s Trial Outline xvii Use timelines to help the jury see the entire picture and to make it simple to understand as part of your story telling about your case. Honesty is the best policy throughout the trial It is essential that you practice the proverb “honesty is the best policy” during jury selection with regard to your concerns about matters involving your client’s case. Social science has clearly established that you are not going to taint the jury pool because of the expressed outrageous views of some jurors. People don’t suddenly drop their values or change their beliefs because some stranger in the jury pool offers an opinion. It is true that case specific issues may taint a jury. Matters which have been excluded on pretrial motions if brought up can affect the juror’s view of your case. That is a different proposition then commonly held beliefs that must be explored and discussed openly.

On the other hand, case specific issues that will be or are likely to be admitted during trial must be discussed openly. You are ignoring reality if you think that commonly held ideas will go away if no one mentions them. You must talk about tort reform issues because everyone holds a viewpoint on the issue. You need to have credibility. You obtain credibility by being honest about your concern over such issues. You should be the first person to bring them out and face them honestly with the jury panel. Use open ended questions & allow jurors to talk even if you don’t like what they are saying. Ask questions that count. Don’t waste your time on information gathering that tells you little or nothing about the person’s beliefs and value system. The question of whether a prospective juror is compassionate or not is far more important that demographics information.

Make direct examination interesting

One technique I like to use in direct examination is to tell the jury who the witness is and why they are being called as my first witness, even before qualifications. The jury wants to know who the person is and why is he or she is called as a witness in the case. Once you satisfy their curiosity, they will pay closer attention to what is being said. Whenever possible, I try to get the opinions of an expert out as soon as is possible and even before fully qualifying. I want the jurors to know what opinions the expert holds so that they are more interested in listening to the qualifications and reasons why the opinions are held. A closed controlled direct examination sounds rehearsed and lacks spontaneity. An open approach – “tell us what happened” and “what happened next?” is more interesting and more natural to listen to. It also makes the witness more credible.

I tell my witnesses that I may well challenge what they say by asking those questions I think the jury would like to ask if they were allowed to ask. I warn them that they should not be surprised by this style of examination and should respond with the knowledge that I think the jury would like in their answer. I use hypothetical questions to the extent it is appropriate and allowed. Hypothetical questions are a wonderful device for collecting various points and summarizing them in the form of a question. They are a tool of communication that should be used whenever possible. But the questions must be clear and easily understood. They must conform to the rules of evidence as well.

Always keep in mind our calling as trial lawyers

I believe our calling as trial lawyers includes some of the following: (1) to sacrifice for the good of others(2)  to be courageous in the pursuit of justice. (3) to put our clients before our vanity, ego and greed. and (4) to serve others with courage, skill and honesty

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