It’s that time of year again when we all make resolutions, stick to them for about two weeks, then go back to our typical pattern and practice. Let’s make this year different! In the spirit of correcting past problems and forging new habits, here’s a list of litigation resolutions – from case intake to closing argument – to put your trial strategy either back on track or to keep it on track.
Initial Case Strategy
“I resolve to start thinking about my jury story BEFORE discovery even starts.” Too often we see trial teams begin thinking about their jury story near or at the close of discovery. At this point, it’s a “What did we find out?” as opposed to a “What do we want or need to find out?” What you need or want to find out should be based on strategic brainstorming session where members of the trial team, clients, and possibly a consultant meet to formulate the optimal case framework. Yes, that will change as a result of discovery, but if you don’t have an idea of what you need to put your best foot forward, you might end up not asking for certain documents or depositions or hiring specific experts. “A good plan today is better than a perfect plan tomorrow.” George S. Patton
“I resolve to make time to test my case through a focus group or mock trial.” True, not every case needs research, and sometimes the cost can be prohibitive (although there are options that could eliminate that concern), but the “I don’t have time” reason is easy to refute. Jury research is one of the best ways to find out if your strategy is on the right track. It can show you holes you didn’t think of, and reinforce that what you thought of as a strength truly is one. It can show you how jurors dissect, make sense of, and ultimately reason to a conclusion. From a time standpoint, it can also be used to jumpstart a number of activities that you need to tackle anyway: your jury selection strategy, writing opening, creation of graphics, and writing of witness outlines. This year, kill multiple birds with one jury research stone.
Witness Preparation for Deposition
“I resolve to prepare my witnesses for depositions using role playing and video feedback.” Deposition practice is one of the most over-looked aspects of litigation preparation. The days of meeting the witness the day or morning before the deposition to “talk about” the deposition should be something you once and for all leave behind. Instead, resolve to put your witness through a mock deposition practice session. The goal is not to get your witness to memorize and repeat answers to specific questions, but to learn the “how to” and the “why” of a deposition so they are armed to answer any question that comes their way.
“I resolve to use more visuals and less bullet points on PowerPoint slides.” Bullet points on a slide are not visuals – they are an outline of your opening and/or closing projected onto a screen. Effective, dynamic, persuasive speakers do not show their outline to the audience; they grab their audience’s attention, and aid their audience’s retention by utilizing clear, compelling visual arguments.
“I resolve to stick to the plan and forget about the squirrels.” We see it nearly every time, as trial nears, people become distracted or fixated on issues that do not matter. We believe it’s a byproduct of feeling a bit out of control and/or overwhelmed by all there is to do. It’s a coping mechanism – you feel like you cannot control the judge or your jury, but you can control what your expert wears, how many people sit at counsel table, which company representatives should attend trial and on what days, etc. Yes, there are “squirrels” that are not as trivial (e.g., motions in limine), but even some of those should be thought of as squirrels since they distract you from your carefully constructed litigation plan. Bottom-line, don’t waste valuable time getting caught up in meaningless pursuits.
5 Jury Selection Resolutions
“I resolve to…
- … truly use jury selection for the purpose it is intended – to root out those who have experiences and attitudes that are counter to my case framework and desired goal.
- … stop worrying about spoiling the well. Instead, I will ask the tough questions that illicit the uncomfortable, but necessary responses for me to effectively use my strikes.
- …stop doing all the talking. Stop. Talking.
- …stop giving the panel a civics lesson and thanking them for their doing their duty.
- …formulate a voir dire plan and stop winging it.”
“I resolve to eliminate these three mistakes from my next opening…
- Lead with a long introduction that doesn’t grab attention or begin making my case. Examples: “Ladies and Gentlemen of the jury. We are so grateful you’re here today. Serving as a juror is one of the most patriotic things you can do in our society. Without you….” Or, “Good Morning. It is my pleasure to represent Mr. Smith in this lawsuit. You’ve met Mr. Smith sitting right there. The rest of my team is….”
- [For defendants] Begin by trying to refute or respond to what I just heard. Instead, stick to your game plan and present an affirmative, re-framing of the case.
- Waiting until the last minute to write it. Opening is the most important rhetorical opportunity you have in trial. There are so many other things that should take a back seat to writing, practicing, re-writing, and practicing again, your opening.
“I resolve to reframe how I view, prepare, and present my closing argument.” Closing is your opportunity to arm, motivate, and educate jurors so they can win the real debate – the debate that will happen in the deliberation room between jurors. However, arming, motivating, and educating does not happen by summarizing everything that happened during trial. Instead, write your closing based on the answers to these three questions: 1) What evidence or testimony is most true on its face? In other words, what is something that a juror can point to that presents a stumbling block for opposing jurors? Find a handful of these and then repeat, repeat, repeat. Doing so arms jurors with critical evidence which they can use to fight for your side. 2) Why should jurors care about the case and their verdict? For defendants, a “technical” or “legal” reason will get you nowhere. For plaintiffs, a “plaintiff needs the money” is nearly as problematic. Instead, jurors need a reason to not back down when “attacked” by opposing jurors. It can be a fight for a value (fairness, accountability, personal responsibility) or punitive in nature (sending a message, a referendum on a particular behavior – e.g., greed). And 3) How do you want jurors to apply the jury instructions to the verdict form questions? Jurors don’t know how to deliberate and leaving them to their own devices invites trouble. Instead, educate them about the process by walking them through the process you want them to take. The steps include: highlighting specific jury instruction language; linking that language to the particular verdict question; tying the answer to specific evidence and testimony.