A friend of mine who is an outstanding plaintiff’s lawyer was giving a talk on the subject of the experience of having your case began to deteriorate. He asked me for some thoughts and what follows are suggestions. When this subject comes up, I always think of the great New York plaintiff’s lawyer Moe Levine. He has written that he was once trying a case before an abusive judge who did everything he could to undermine his case. Several days into the trial, while the judge and jury were present, Moe began packing his brief case and indicating he was leaving, causing the judge to ask what he was doing. He says he told him it was clear there was no chance of a fair trial in this courtroom so he was leaving. He indicated he was taking a non-prejudicial dismissal and left.
Maybe Moe was being apocryphal, but haven’t you ever wanted to just pack up and leave at some point in the trial when disaster happens? Since, that’s unlikely to happen, here are ten things to consider when your case seems to be losing momentum to the point of concern.
- The first thing is to remember that a trial is a battle of impression and not law or logic. Therefore, the question is what is the general impression you, your client and witnesses are making. What about your demeanor, your reactions and your body language?These are the most important factors which influence how the jury perceives your case. You need to maintain a consistent good demeanor with a constant theme and project the righteousness of your case at all times. However, you also need to have a sense of humor at appropriate moments as well as being willing to acknowledge, without attempted cover up when it is apparent to everyone things went bad. Otherwise you lose the impression of sincerity and trustworthiness you must have with the jury. In the same way a professional poker player must maintain a consistent demeanor, your demeanor needs to be unchanged because, like a runner in a race, if you project you have given up giving up, you are a loser and the case is over.
- When you sense that the case has taken a wrong turn, you need to take the time to analyze why. When we continue to do the same thing in the face of a lack of success we will continue to get the same bad result. You must have a willingness positive and objectively analyze what you can change in an effort to try to put the case back on track again. You may have to do this more than once but you must be willing to objectively analyze and face the truth.
- Since we often have trouble being objective about ourselves it may be important to have an objective third party analysis the problem. You need to be totally open to the criticism that it is your attitude, your mannerisms or your communication that represents a contributing cause of the problem. Is arrogance, smart aleck attitude or general anger part of the problem? Should you change your attitude, your demeanor and the way in which you are conducting yourself? Your case is often judged by the impression you create. Be willing to change mid-trial if necessary.
- You need to evaluate whether there is a change of legal position you can make to improve your chances. Are you making a claim that can be dropped which is the weak part of your case causing the problem? Are there witnesses you can call or not call that would improve your position with the jury? Is there any alteration you can make in approach, while being consistent with the main theme that would help?
- You should evaluate whether you can focus evidence or witness testimony to concentrate on some weakness in the case. Would a change emphasis be of benefit? In general what we talk about the most becomes the most important thing that jurors see in our case. Where is the emphasis in our case and is that part of the problem? Should we refocus in that regard? We need to be willing to modify our approach and not be so rigid with our planned trial when it is necessary.
- Sometimes the problem is that you have ignored the jury. You’ve tried the case as if there were no jury, just you and a witness. Too many lawyers do not maintain appropriate eye contact with the jurors, involve them in the process and make clear that they are fully aware of the juror’s involvement in the case. Consider whether you need to involve the jurors through eye contact and general acknowledgement of their role. If there are particular jurors who seem to represent the problem, is there anything you can do to appeal to them through your eye contact and approach?
- It is important to make a special effort to arm the jurors who are on your side with arguments in the jury room against those who are not on your side. While jurors make up their mind early in the case, be sure to specifically give the jurors on your side arguments to use in the jury room for your position. For example “Someone might say in the jury room, ‘that doctor smith was caught in too many inconsistencies’ but remind them of all the supporting evidence and testimony …..Etc.
- Remember that truth is the most powerful persuader in a jury trial. I had a friend in Spokane who was a great trial lawyer. He was presenting a case when his key expert completely come apart on the stand to the point of embarrassment. In argument he took full responsibility and apologized in summation. He told them that he was totally mortified, ashamed and embarrassed by the witness because Bill took full responsibility for presenting only valid truthful testimony and he had failed to do so. He told them he had spent his life presenting honest and truthful evidence in court and this was something he had to live with. What really bothered him was his innocent client would likely suffer the consequences of his failure to screen the witness properly and so on. He recovered a very good verdict because of his sincere acknowledgement of the disaster and taking responsibility for it.
- It may well be that the situation is serious enough to consider whether you should try to settle the case. Mike Koskoff, a great plaintiff’s lawyer, says that his father Ted who was an outstanding plaintiff’s lawyer had a rule: Never settle on the day you have had a trial problem. If settlement is a compelling alternative avoid doing it on the day of the major disaster but rather to try to time it for when you had a good day.
- As a last resort, if your trial has become a true disaster you may have to consider whether you can and should take a voluntary dismissal with a plan to refile and try it again. Clearly this is a last resort alternative but it may be appropriate in the right circumstances. Michael Sterbick was an outstanding plaintiff’s lawyer in Tacoma some years ago he was involved in a trial where things simply were going wrong. After more than several days of trial he elected to take a voluntary nonsuit. He later refiled the case and tried it to a very good verdict. When I talked with him about it he said that the expense and additional effort had been worth it because it allowed him a chance to reframe his entire case and how he approach that a trial. This may be the only alternative in rare circumstances.
Well, those are some ideas short of running out the courtroom door when you case begins to become sour. Be strong and courageous. Keep going.