10 Tips for Trial Attorneys Tammy R. Metzger, J.D., M.A.
1. Speak Simply The number one mistake I see repeated by truly gifted attorneys is that they use too much legalese, technical terminology and other "lawyer talk." After a trial, a juror actually asked an attorney why did you keep telling us you wanted your client to “recover?” He’s dead.
Besides not understanding you, jurors do not
like lawyers who use obscure words. Jurors will not be
receptive to you, your client or your themes if they think you
are arrogant. Practice talking to intelligent 14-year olds and
test what they remember.
2. Explain, Explain, Explain
Verdict Form Legalese that Defies Common Sense Jurors do not share an attorney’s definition of
words like significant, subsequent, knowingly, malice, defective,
design and negligence. The common sense definition of a
“substantial” factor is “a lot,” not CACI’s1
“more than a remote or trivial factor.” Even if you explain
the legal definition of “substantial,” jurors will revert to their
common sense understanding of the word. This was clearly demonstrated during Harris Martin’s
December 2007 benzene litigation conference when not a single juror
corrected the group’s misunderstanding of the term “substantial”
during deliberations, despite the fact that the judge just read the
jury instructions. I have also asked ex-jurors if they think
“substantial” means a little or a lot and the answer is always “a
lot.” Overriding the common sense definition of a word
requires more repetition than simply learning a new term. To override a prior definition, you should first ask
the rhetorical question what does the word “substantial” mean to
you?
Once you have activated this memory in the jurors’ brains, you then
link the new legal meaning with those neurons, preferably with a
memorable statement, such as a self-deprecating joke. For
example, unfortunately legal terms, often defy common sense.
Maybe lawyers try to justify their outrageous law school tuition
with all of their $25 words. Maybe it’s a form of job
security, that if we redefine ordinary words to mean something
totally the opposite of what everybody else thinks, then no one else
can do our job. If you are uncomfortable with this, then just
explain that it means of substance, something that’s real and
not imaginary, which is memorable since substance sounds like
substantial, so it will more easily connect with the prior
definition. Use visual aids and repetition. Write legal
terms on a flip chart and tell the jurors that this will be on their
verdict form and they will need to understand the legal definition
for their deliberations. Many of your jurors will write this
down in their notebook, if permitted in your jurisdiction; writing
it down will further cement the new definition into their minds.
You should also emphasize the linguistic distinction throughout the
trial, with each witness and in your closing. Important
testimony should be stated in plain English and repeated in more
technical legal terms. 3. Teach Jurors to Apply the
Facts to the Verdict Form At the June 2008 American Society of Trial
Consultants’ annual meeting, a keynote speaker, Dr. Shari Diamond,
said that the biggest challenge facing juries is that they do not
understand the verdict form and jury instructions. Juries are
actually more confused -- after the judge reads the verdict form --
than before. This almost always hurts the plaintiff more than the
defense, in part, because frustrated jurors, who may have been
deliberating for days, choose easy justice over real justice.
When jurors know that a “no” answer to question 4 saves them from
negotiating questions 5 through 17, some will switch to a “no” vote
to get on with their lives. Also, friendlier jurors, who tend
to favor the plaintiff, cave faster than the tough-minded jurors
when prolonged deliberations cause tension2
within the group. In addition to not understanding legalese and the
law, jurors do not know how to apply the facts to the law.
Attorneys must walk the jurors though, step-by-step, listing
evidence that supports their contentions, and how to answer the
questions on the verdict form if they believe that evidence.
This requires more than just showing jurors which boxes to check to
arrive at a defense or plaintiff’s verdict, but educating and arming
favorable jurors so they can explain how the evidence supports a
given answer on the verdict form. 4. Explain the Law Early in
Your Case During deliberations, jurors will correct each other
when discussing the facts of the case, usually arriving at a correct
answer, but they often come to an incorrect consensus regarding the
law. When jurors are trying to understand legal standards,
they will mistakenly apply their innate sense of justice, not
because they are intentionally ignoring the law, but because they do
not understand it.3
Jurors consider “beyond a reasonable doubt” and
“preponderance of the evidence” to be nearly identical
standards. Researchers asked jurors who had completed
service on a civil trial to rate on a scale from 1 to 10 how much
evidence is required to prove something “beyond a reasonable doubt”
and by a “preponderance of the evidence.” Their ratings were
7.9 and 7.7, respectively.4 Most jurors are uncomfortable finding that a
defendant is at fault unless they are fairly certain of their
verdict. To replace this innate sense of justice with the
legal standard, David Ball suggest that you work the words “more
likely than not” into your direct examination questions.5
For example: Q: Doctor, is it your conclusion that
more likely than not, the benzene in the solvent caused Mr.
Williams’ non-Hodgkin’s lymphoma? A: Yes, more likely than not. Q: Beyond that, is that your conclusion
to a reasonable degree of medical certainty? A: Yes. Q: And by “reasonable degree of medical
certainty,” you mean certainty based on reason? A: Yes. Q: And beyond that, how sure are you? A: Absolutely certain. When most jurors hear the phrase “reasonable degree
of certainty” they think “maybe.” If you want jurors to
believe your expert’s testimony, he must state his level of
certainty in plain English, without calling it his opinion,
but his
conclusion. 5. Plan Voir Dire,
Themes and Trial Strategy with the Verdict Form in Mind You must start framing issues early in trial, with
the same words that will be on the verdict form.6
Although it is usually improper to specifically reference the jury
instructions during opening statements, two of the most important
functions are to focus the jury on your issues and to frame them
favorably. According to James E. DeFranco, the author of
Opening Statements in the DRI’s Trial Tactics Defense Litigation
Manual the trial attorney can only properly frame those issues
with reference to the jury instructions that the judge will give at
the end of the case.7
The plaintiff, in particular, must tailor her case to the wording
for each element for each of the claims that will be on the verdict
form. The defense will probably pick a few weaknesses in the
jury instructions and develop themes based on those issues. For example, Illinois jury instructions on
pre-existing conditions only discuss part of the “egg-shell”
doctrine, that jurors cannot reduce the plaintiff’s compensation
simply because he was unusually susceptible. The law on
pre-existing conditions which would result in injury -- regardless
of the defendant’s claimed negligence -- is found in the proximate
cause instruction. If you remember struggling with the
definition of proximate cause
in law school, it should be no surprise that jurors do not
understand this word; they think it means approximate.
You will have to educate jurors early, with the language that will
be in your jury instructions. You should also test jurors’ receptivity to
plaintiff and defense themes during voir dire. For
example, the plaintiff in a benzene cancer case should ask each
juror what responsibilities, if any, does a business owe to
society. When a juror says none, that a corporation’s only
responsibility is to make a profit, nod encouragingly, thank the
juror for his candor, then cheerfully ask the rest of the panel who
else agrees with him, by a show of hands (while raising your own
hand). Give jurors at least 5 seconds to think about this to
give them enough time to decide. They might not raise their
hand until they have thought of what they might say if called upon.
Talk with anyone who raises their hand, starts to
raise their hand or even twitches.8
Assess how strongly they actually feel, how long they have held this
belief and how well they have thought it through, all the while
encouraging their honest candor. This is not the time to argue or
get defensive. For attorneys who lack a poker face, mentally
thank God that this juror just exposed his bias and smile to
yourself knowing that you caught him -- he will not be on your jury. 6. Open with the Rule, then
Frame a Compelling Story With tort reform and modern cynicism, jurors do not
trust lawyers, especially plaintiffs’ lawyers. You cannot
start your opening statements with unsupported assertions such as
this is a case about a doctor who read a chart too quickly.
You lose credibility. You must guide jurors to the
conclusions themselves, by providing the rule and the facts.
Trials are rarely won in the opening.9
Jurors will not believe the facts or conclusion of your story but
they will believe that the case is generally about the story you
tell. Jurors think a case is about whatever the time is
spent on. Plaintiffs want jurors to think the case is about
harm and damages while the defense wants jurors to think the case is
about liability. One third of the plaintiff’s opening must be
about harm and damages. Explain that you’re not going after
sympathy but that the jurors need this information to do their job. You should describe your client’s physical damage,
the consequences of this harm (including disabilities), tasks that
your client can no longer do and the safety consequences of these
harms (e.g., disabled people are less able to protect themselves
from dangers or even to investigate such threats to assure
themselves that they are okay) and the nature, extent and duration
of their pain and suffering. Explain that this is the greatest harm, and the only
way to compensate your client for the human loss. Everything
else goes to others or to compensate for lost wages, things that the
client would have kept in a normal, healthy life. The damage
of not being a full person must be balanced with money because that
is the only remedy available under the law. You should also compare the before and after
scenarios of what the client’s life was like before the injury and
how it has changed. Focus on how to fix the harms that can be
fixed (e.g., medical bills, lost wages), how to help what can be
helped (e.g., minimum life care plans) and how to make up for the
harms that cannot be fixed or helped (e.g. pain and suffering, lost
movement). Framing defines what is and is not important in a
juror’s mind. Jurors will disregard facts that do not fit into
their frame because people can only consider a limited amount of
information.10
For example, if a person believes fuel economy is the best basis on
which to buy a car, they will downplay safety ratings, depreciation
and maintenance costs because most people cannot juggle all of this
information. Jurors will likewise filter out most of your
expert testimony and focus only on what they deem important, that
which fits into their personal story of the case.11
We are all constantly making these mental short-cuts in everyday
decisions. People cannot remember a deluge of unrelated facts.
Stories provide the framework with which people organize facts and
they will disregard that which does not fit into their own, unique
personal story. The defendant must be the main character of
the story, viewed as having control over the outcome. Once the
rule has been explained, begin your story with the defendant’s
action that led to the harm. Jurors will anticipate the bad
outcome and blame the defendant for causing the foreseeable harm. Use storytelling techniques so that jurors
experience the events, instead of just hearing a set of facts.
Use short sentences, with sensory details that step the jurors
through time. Speak in the present tense, using action verbs
so that jurors can see, hear and feel what happened. Pause.
You may have to exclude some information, but you will more than
make up for some lost facts in creating a lasting memory of
facts that support your compelling story. Plaintiffs should
refer to their client with pronouns and passive verbs, thereby
minimizing their perceived role in causing the harm. 7. Answer Jurors’ Questions Explain who you are suing and why. If you do
not discuss the employer, jurors will assume you went after the deep
pockets. Give them another explanation of why they should hold
the defendant liable. Jurors fill in missing blanks,
fabricating facts when their story demands it. So you must
discuss “irrelevant” facts, like the client’s medical history, past
smoking history, past drug use (if they look like a drug user) and
whatever else your focus group research tells you is important. 8. My Humble Expert Beats
Your Credentialed Expert Your first witness who is essential to the story
must be credible. Jurors will start making decisions about who
to believe when the defense does its first cross-examination.
If your witness holds up, you look credible. If not, they will
listen with suspicion to the rest of your case. Your expert must not be arrogant, but humble,
likeable, credible and professional. Unfortunately, the
most important thing in selecting an expert today is the expert’s
demeanor – and not his credentials.12
Test experts for persuasiveness, likeability, credibility and
clarity in focus groups. More credentialed is not necessarily
more persuasive, especially when jurors hear about their fees and if
they work full-time as a hired gun. Instruct your expert to not aggressively confront
the opposing attorney unless the attorney has been so obviously
heavy-handed that you can presume the jury has given the expert
permission to hit back. Otherwise, some jurors will construe
aggressive behavior as defensiveness and a lack of confidence. 9. Minimum Life Care Plans13 Life Care Plans are often seen as a ceiling, a gift
to the plaintiff. Spend a lot of time going over each item,
explaining why it is necessary to make the plaintiff whole, to
equalize the scales of justice. Don’t let the defense get a
discount -- justice on sale. Explain that the law says it is
their responsibility, and that trial delays further hurt the
plaintiff, who suffered more and that this should also be
compensated. Remove anything that looks like padding.
Choose the cheapest options and call it a minimum life care plan,
which makes it a floor, then argue for a better plan. You gain
credibility and defense jurors are less able to cut it in half with
a fast negotiation, which is common.14
This also arms your jurors to fight for the minimum life care plan. 10. Closings: Arm Favorable
Jurors By closing, jurors have made up their minds.
They may change them during deliberations, but not from your
closing. Your goal in closing is to arm your favorable jurors
so they will argue for you. Do not rehash the evidence.
Walk your jurors through the verdict form, using visual aids for
every important phrase of every instruction. It is worth
repeating that it almost always hurts the plaintiffs if jurors do
not understand the verdict form. Once again, use concrete
examples to memorably explain legal terms with different meanings
than common usage. Spend half of your closing explaining exactly how to
calculate economic and noneconomic damages. If thrown in as an
afterthought, jurors will consider it as such and return a much
lower verdict, or a defense verdict. Explain that the judge
will reduce the verdict by the percent fault. Otherwise,
jurors may reduce the amount themselves, so it is reduced twice. Visually demonstrate the more likely than not
standard of proof with your outstretched arms. And define
compensation in the same way, while explaining that pend
means to “hang” and
com means “with,” that compensation means balancing the harms
on one side with money on the other. Compare it to
compensation from work. You get money, not thanks, not
excuses like you really don’t need the money or you seem
to be getting along fine with less. The law requires that
you get money. This takes time to explain. Take the
time. Do not use the word award, which sounds
undeserved.15 If your law permits rebuttal closing to cover new
topics, save this for last. List all the arguments defense
jurors made in your mock trials and focus groups.16
Tell your jurors that if a juror says x, tell them y.
Give your jurors short answers, talking points with just 5 or 6
words, to rebut the expected arguments. Say it slowly, so they
write it down. (If no one is writing, try to settle the case.)
There is always more to learn in an attorney’s constant quest to perfect her craft, but these 10 tips should give you plenty to work on for a while. For more information, please visit Tammy’s website at www.jurisense.com, where you can subscribe to her blog and RSS feeds, download additional papers and learn more about JuriSense’s services. JuriSense, LLC Seal Beach, CA (800) 891-6592 info@jurisense.com Home | Research | Expert Testimony | Jury Selection | Graphics | CLE | Tammy Metzger | Contact | Papers | Blog |