Getting Back to Basics in Trial Planning


Imagine you are asked to build something – you don’t know if it’s a car, a house, a playground, or any of the other endless things it might be. To build it, you are given one tool at a time, but you are only given the barest of instructions on how to use that tool, you’re not told which part it actually builds, and the instructions are not given in the logical order that would make most sense. As the days go by, you begin to get a general idea of what you’re building, but because there are two project superintendents, you are receiving contradictory information. About the time you think you know, someone else shows up and tells you just the opposite. You are also warned that you cannot do your own research; you cannot look up terms that are repeatedly used, and even though you can tell they are important words, you must guess at their meaning and application to this mysterious building project. And, on top of it, there are incredible periods of down-time…time just spent sitting around. You live in this state of confusion for weeks until finally someone says that you have all you need, and it’s time to finish building it.

Would you be able to do it? Would you be frustrated? Would you feel ill-equipped?

While we’ve heard attorneys criticize jurors for getting it “wrong” for as long as we have been the profession, there seems to be even more of this lately. During mock trials and in trial postmortems, attorneys seem especially angry about jurors “not understanding the case,” “not applying the law,” and/or “ignoring (forgetting) critical evidence.” Sure, we get frustrated, too, and there’s always the comment or two from jurors that are real head-scratchers, but what we fundamentally see are frustrated jurors doing their best with what are serious and complex issues. We’ve asked them to build something from thousands of pages of exhibits and millions of words spoken by dozens of people, more than they could ever reasonably process, yet we expect them to “get it right.” Running with our building analogy, here are four critical components of preparing and delivering your case. While it’s likely an obvious list, it’s a list that is often ignored or forgotten – a bit like much of the evidence in trial.

1. What’s your blueprint?

We hear all the time how the case is so “complex,” “confusing,” or “detailed” that it can’t be simplified. But if you cannot do it, then how is a juror who is just hearing about the case for the first time going to do it? Put yourself back at the beginning – when you first took in the case – what questions did you have? What did you not understand? How did you figure it out? You must have a clear picture of what it is you want the jurors to build, and they can only know that if the blueprint is clear.

Three steps for doing so: 1) Write a summary sentence of what the case is “really” about; 2) Select the 3-5 most critical pieces of evidence – “facts” that are “sticky” (easy to remember) and are true without needing a lot of explanation; 3) Develop the case narrative by starting at the ending (the “key” verdict question) and then work backwards. Anything in the case that does not speak to that ending question, jettison.

2. What’s your work flowchart?

Let’s say you’re building a house. You have the blueprint, but now it’s time to start building. What happens first? What is being done today? Jurors need simple and constant reminders of what “work” is being done “today” (e.g., by this witness). The opening should give the jurors a vision of the completed building, but also the “work flowchart” for how they will get there. Then, with each witness, remind jurors what “work” is being done through constant sign-posting, which is essentially juror handholding, which is critical. Start with which part of the building their testimony relates to, and then break it down to make sure the witness creates that room.

It can be as simple as opening the examination by saying, “The jury will be asked to determine if the contract was breached, and a key issue related to that is Y. So, let’s talk about Y…”

I once worked with an attorney who had different color folders based on the 5 or so key issues in the case. She used these in opening when introducing the topic, then with each witness. For example, when she moved from topic A to B, she’d put down the green folder and pick up the blue one. She did this throughout the whole trial. It was subtle, but over time it became clear and much easier for the jurors to “chunk” the information in a way that made sense and stuck.

3. Did you match the building to its foundation?

One of the most frustrating aspects of trial for the jury is that they are not given the jury instructions or know the specific verdict form questions until the end of trial. At this point, they’ve built their structure and it might not fit the foundation. It’s very difficult to tear it down and build a new one when they get a question that asks them something they had no idea they would be asked. Therefore, as much as possible, push for a clear statement of the claims and pre-instructions pre-opening statements. Reference the claim or key wording of an instruction in your opening and with witnesses, e.g., “As you know the jury will answer separate questions on negligence and causation. Today, let’s address causation.”

4. Did you measure and re-measure?

Repetition. Repetition. Repetition. If you want them to remember it, you have to repeat it. It’s rare for an attorney watching a mock trial to not yell at the jury “I told you that!” when he or she hears a jury say something like, “I wish they had told us X.” There are a variety of statistics about retention out there, with most indicating that the average person will remember only 10-20% of what they were told three days after they were told it. Imagine how much is forgotten after a three-week trial. If it’s important, then emphasize it and repeat it. Repetition is the most fundamental strategy for persuasion.

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