The Five Most Important Rules for Winning Trials

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ABTL REPORT NORTHERN CALIFORNIA MAR.2000

The Five Most Important Rules for Winning Trials

All experienced trial lawyers have rules of thumb – conscious or unconscious – that guide them through the trial process. What I share here are five simple rules or principles of trial practice which have, for me, proven to be the most important ingredients for success. These are principles which I believe all lawyers can incorporate into their trial repertoire and, if adapted to whatever style is most comfortable for them, will help them try a winning case before either a judge or a jury.

ESTABLISH AND MAINTAIN PERSONAL CREDIBILITY WITH THE COURT AND THE JURY

The number one rule for any advocate is that your personal credibility with both the judge and the jury is of paramount importance. In trial work, there simply is nothing more important. Period. When you speak to the judge or jury, you obviously want them to listen to you and to believe you. But if they don’t trust you, they won’t listen and they certainly won’t believe you. It is sad but true that many, if not most, jurors step into the box with the preconceived notion that lawyers, and especially trial lawyers, are smooth talking hucksters who talk out of both sides of their mouths and will say anything to get their way. A trial lawyer’s first order of business is to establish his or her personal credibility with the jury despite this preconceived notion. The three simple steps for accomplishing this are: 1) demonstrate your personal conviction; 2) earn the judge’s and the jury’s respect; and 3) earn the judge’s and the jury’s trust.

Personal Conviction

Advocates are not allowed to vouch personally for witnesses or for the facts. But a trial lawyer who does not convey to the jury his personal conviction of the justness of his cause is not doing his job. You must make the jury believe that you believe. If they think that you are “just doing your job” or “going through the motions,” you should expect to win only if you have a compelling case or are feeling lucky. You can demonstrate your personal conviction by the manner of your presentation as much as by its substance. Show passion; jurors have it in themselves and they recognize it in others. Your passion or enthusiasm does not have to be play acting; there are always pieces of a case about which we feel more strongly than others. You should emphasize those aspects of your case which genuinely stir your own blood.

Respect

You earn the jury’s respect when they see that you are totally prepared on both the facts and the law, that you are a controlling force in the courtroom, that you are self confident but respectful of others, and that you do not “talk down” to the jury. While you should be deferential and respectful to the judge, you want the jury to have the impression that you are in charge – or at the minimum, it is you and the judge who are there to help the jury do the right thing. You want the jury to like you if they can. I work at being a regular guy with a sense of fairness, which my experience teaches me most juries respect.

Whether the trier of fact is the Court or a jury, enjoying the trust and respect of the judge is very important. Even in a jury trial, you are trying the case to the judge as well as the jury. You want the judge to believe in the justice of your client’s cause. Don’t forget that it is the judge who rules on the objections, decides the motions in limine, settles the instructions and rules on the outcome-determinative motions. Moreover, jurors want to look up to the judge and will do so every time unless the judge is totally out of hand. They look to the judge for subtle signals as to which lawyer the judge respects most. You want to be that lawyer.

In every trial, I always look for early opportunities to establish my credibility with the trial judge. Knowing the rules of evidence cold, knowing when and how to object (and when not to object), knowing the law and the facts like the back of your hand, and not overstating the facts or the law will all give confidence to the judge that you are to be trusted to help guide the court to the right result, i.e. one which does justice and which will not be overturned on appeal.

Trust

You must earn the judge’s and jury’s trust and, to do that, you must be straight with them. You earn the judge’s trust when she sees that you are competent and don’t overstate the facts or law. Similarly, you earn the jury’s trust when they see that you are reliable: when you say something is so, it is. The jury sees this when the judge agrees with your legal positions. They see this when you acknowledge “bad facts” in your opening. If you do not over-promise what the evidence will show and the witnesses then take the stand and say what you told the jury they would say, your reliability is validated. Once the judge and the jury see that you are the “truth giver,” that you can be counted on, you are on the way to winning your client’s case.

TRY THE CASE TO THE TRUTH

In every case there are certain core facts – or essential truths – which, whether or not you or your client like it – will almost certainly be established by the evidence and be believed by the jury. Some of those facts will be “bad facts” – ones which don’t help you or even seem to hurt you. Don’t run away from those facts and don’t ignore them. Most importantly, don’t squander your personal credibility trying to distort them or trying to con the jury into believing that black is white. Such “stretches” are rarely successful. They almost always backfire because you end up losing credibility with the finder of fact. Jurors figure the basics out pretty quickly, and they look for evidence, themes, arguments and advocates which are comfortable to them – usually the ones that appeal to their innate sense of fairness. If you get identified in the jury’s eyes as the person who is trying to sell them something they “just know” doesn’t seem right, you are well on your way to losing the jury and the case.

The key is to face reality early: identify those core facts which are harmful to you and which you believe the evidence will almost certainly establish in the jury’s mind. Once you identify them, then you deal with them in a way which defuses them. Sometimes you explicitly concede them. Sometimes you give them the back of your hand. And sometimes you just nibble at the edges of credibility and invite the jurors to make their own judgments. But you never ignore those “bad” facts or pretend that they don’t exist . In the best of circumstances, you work them into a winning argument. The most effective use of “bad facts” comes when you can bring them out before your adversary does and incorporate them into your theme and your proof. Take this simple example: you represent a plaintiff in a personal injury case where you seek substantial damages for pain and suffering. You know that within one week of the accident, your client was back at work. Rather than being defensive, you bring this “bad fact” out in your opening statement and weave it into your theme. “Ladies and Gentlemen, the evidence will show that within one week of the accident my client was back at work. The easy thing was to stay home like his doctors recommended. But Mr. Jones is not that kind of man. He had a family to support and a job to do. So he went back to work, despite the pain. Mr. Jones’ co-workers will tell you how he suffered, how he grinned and bore it, and how he didn’t complain....” A jury can identify with this theme and respect your client for not being a “whiner.” If the plaintiff’s lawyer ignored this “bad fact” in his opening statement, the defense could pound on it during her opening and create a very bad first impression that your client could not have been hurt very badly if he went back to work so soon.

COMMON SENSE EQUITIES FAVOR YOUR CLIENT

The most effective themes are those which jurors relate to on a fundamental “common sense” level, i.e., common sense things derived from every day life by ordinary people. A theme which humanizes your client and encourages the jury to empathize with her on a human level is essential to a winning trial strategy. Every defense case that I have tried and won had a simple, central theme: my client was an honorable person sincerely trying to do the right thing in a difficult situation. I am convinced that a jury that believes that theme will find a way to make the evidence and the law fit the right result, one which does not make your client suffer unfairly. In my experience, this is often the principle of trial practice which requires the most thought and creativity, but it is the one that is most often given short shrift.

In developing your own theme, you must remember to anticipate and counter the other side’s themes. If the defense theme is that the defendant is a nice guy who tried to do the right thing and you believe that the jury will probably buy that theme, the plaintiff’s theme cannot be that the defendant was an evil man who needs to be punished. Instead, a winning plaintiff’s theme would be one that was consistent with the jury’s likely belief that the defendant was not evil – one which demonstrates that, even if the defendant is an honorable person, the equities still favor the plaintiff and denying a recovery to the plaintiff would punish the more innocent of the parties.

My central point here is that, while jurors generally try to be conscientious in following the law, they always start with their own common sense notions of what “seems fair and right to them.” They then work the facts and/or the court’s instructions to get to the “right result.” Your job is to make it easy for them to do the right thing for your client.

You must emphasize and reemphasize your themes throughout the trial – in your opening, direct, cross, & closing – with testimony, exhibits and visuals. You must also do the hard legal work necessary to get the jury instructions that support your themes. This is not something that can wait until the end of the case or even the commencement of trial. You must do everything that you can before the trial commences to make sure that you have the ammunition to convince the trial judge to give the jury the instructions you need to provide legal support for your theme. Then the last thing the jury hears is the judge giving them the instructions on the law that validate your theory of the case.

PUSH ON YOUR OPPONENT’S SOFT SPOTS

You must find the soft spots in the other side’s case and push on them continually and repeatedly. The “soft spot” in the other side’s case – and all cases which go to trial have some soft spots – may be the inability of the plaintiff to prove a necessary element of a claim. It may be plaintiff’s susceptibility to an affirmative defense. Or it may simply be the facts which show the jury that the equities favor your client. Whatever they are, you must identify them early and press on them continually. If you can do it in such a way that the jury “discovers” the significance of these “soft spots” on their own, rather than having it force fed to them, all the better.

KEEP IT SIMPLE

KISS – “Keep it simple, stupid” – is the watchword of every good trial lawyer. Anyone with a law degree can show a jury how educated or smart or skillful they are. But that does not win lawsuits. What wins trials is the ability to present even a complex business dispute in such a way that the average man on the street not only understands what happened, but understands that the only “fair result” is for your client to prevail. If the jury cannot understand the transaction, it will be very difficult for them to understand that your client should win. A few, simple, common sense themes that appeal to the jury’s basic sense of right and wrong are far more effective than elaborately spun and elegantly crafted syllogisms. If the jury thinks you are the smartest or the smoothest lawyer in the courtroom, but they don’t identify personally with your client’s plight and “feel in their gut” that fairness compels a verdict in your client’s favor, you might get the “best lawyer” award, but the other side will get the verdict. An effective trial lawyer’s goal is to win trials for his clients, not praise for his skills.

There will be some cases where even the best lawyer on earth cannot effectively follow these basic trial principles. My advice is to settle those kinds of cases.

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