TRIAL TECHNIQUES: What lawyers should (and shouldn’t) worry about in the courtroom

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As the owner of a Chicago jury research firm, I’ve seen a number of lawyers make the same mistakes and misjudgments countless times over the years.

In my experience, attorneys spend too much time worrying about things they can’t control, such as opinions expressed during jury selection, and too little time considering how their trial team appears to the court or what a judge might find most helpful.

Jury consultants are in the unique position of working directly with attorneys on what they believe are the strengths of their case and conducting focus groups with mock jurors. The results often confirm that what lawyers think is important and what jurors think is important are much different.

Things to stop worrying about

1. Graphics will make me look “too slick”

Jurors not only appreciate lawyers who use technology and graphics to explain their case; they expect it. Jurors are regular people too, after all, and are familiar with technology and use it in their everyday lives. Why should a courtroom be any different?

Lawyers who resist audio and video components, well-made charts and graphics and other uses of technology look outdated, especially if the other side is using them. Unless there were problems with the technology, such as poor audio or long pauses to pull up a document, the side that embraces advancements in courtroom presentations can come across as more polished and better prepared.

2. Witness preparation

Witness preparation is designed to help the witness tell the truth in the most effective way possible. Yet there is a systemic fear of what the jury will think if they find out the witness was prepared. As someone who has asked hundreds of jurors about this issue while conducting shadow juries or in post-trial interviews, let me assure you, their reactions always are the same: of course the witness was prepared.

Witness preparation inherently makes sense to jurors when the witness owns it, which is why witness reactions when asked whether they were prepared or coached are imperative. If they are evasive or defensive, it sends the message that they participated in something unseemly. However, if the witness is calm, matter-of-fact and simply says their attorney told him to tell the truth, it diffuses the “a-ha” moment opposing counsel angles for. As a general rule, the bigger the reaction a witness has to a question, the more attention the jury will pay.

3. Jury selection

Lawyers shouldn’t be afraid of prospective jurors saying bad things about their client in voir dire. Think about it this way: it’s better to hear it then when you can do something about it. And if it generates discussion, that gives you a glimpse of deliberation. Tainting the jury pool is a common fear among lawyers, but it’s unfounded. It is highly unlikely, if not impossible, that a stranger is going to change their opinion, especially on deep-seeded issues such as tort reform, simply because a strange expresses a different opinion.

Remember, jurors have two opportunities to speak: during jury selection and when returning the verdict. Listen and encourage negative information early on, because it’s best to discover bias during voir dire than in post-trial interviews.

4. Expert witnesses

Lawyers tend to evaluate expert witnesses differently than jurors and believe that “good” expert witnesses only make statements that are “good” for their case. But, when an expert only gives responses that support the side that hired him or her, they lose credibility in the eyes of the jury.

Admitting negative information, rather than being vague or defensive, increases an expert’s overall credibility. Losing a battle ultimately wins the war when it comes to credibility. In all likelihood, the opposing side will have their own expert witness, testifying against what your expert said. But if your witness seems more credible, that can help.

What to watch out for

1. Technology misfires

Technology can make an attorney seem savvy, unless they don’t know how to use it. Dead air time while someone fumbles with technology makes minutes feel like hours. Waiting for documents wastes court time, irritates judges and makes attorneys look like amateurs.

As Laura Dominiak, a professional trial technician from Legal Visual Services, explained, “When lawyers try to do it themselves and it doesn’t work, the attention turns to the person running the system and away from the evidence.”

Presentation should be a seamless part of the testimony, and appear so effortless that there isn’t a break whatsoever. That way, concentration remains on the exhibits, documents and testimony.

And beware of misused technology. Laser pointers, for example, should be banned from courtrooms. The light jumps around too much, it is hard to see and has all the personality of Styrofoam. Jurors should see a connection between the information and the lawyer. Using a laser pointer creates a separation between the graphic and attorney or witness. Laser pointers also can be a dead giveaway if the user is nervous. Jurors see that shaking red light and draw negative conclusions about why the person is nervous: “He must be hiding something. Is he being dishonest?”

Instead of using a laser pointer, walk directly up to the screen and point or use a pointer that can be held to allow greater interaction with the graphic.

2. A disjointed trial team

The trial team reflects the client. People are more likely to believe a company or person performed its due diligence if the attorney representing the corporation is prepared. So, a trial team that frantically is digging through papers or that has a table strewn with documents makes the team and their client look unprepared.

The interaction of a trial team equally is important, both in preparation and perception. Jurors sense when a team is disjointed, noticing how the lead attorney treats his or her co-counsel, associates, clients and paralegals. Bad inner dynamics quickly can become the focus and a dysfunctional team is reflected in the trial strategy. Arguments are pointed, not thematic, and might clash with other parts of the case.

Although it is necessary to divide responsibilities, especially in large cases, a lack of cohesion is a breeding ground for problems. By compartmentalizing responsibilities and sticking only to what is assigned, communication breaks down and case weaknesses can be exposed.

3. Misjudging judges

People respond positively to clear, effective communication and judges are no different. Don’t assume a  judge won’t be interested in the same things a jury might. Judges also find graphics engaging, they use communication cues to evaluate witness credibility and can be just as persuaded by a compelling story as a jury of someone’s peers.

Courtroom experience shows that some judges are more familiar with pertinent legal issues, while others are not. Do not assume that the judge knows important background information simply because he or she has experience trying similar cases. Whether the end goal is to win summary judgment, a favorable outcome in mediation or return a successful jury verdict, invest in the tools that will make the case compelling and witnesses credible.

4. Lack of communication

By the time a case goes to trial, attorneys often have been living with it for months, if not years. They know the case so well that the dexterity of the information can become a hindrance when presenting it to jurors. But in that process, lawyers often forget what they didn’t understand about a case when they first read it, what questions they had and what they thought was important. All of those details will matter to a jury.

An attorney’s job is to clearly communicate information, educate the jury on key points and present it in a compelling way. It is not the jurors’ job to decipher the story based on randomly distributed facts. Repetition, both visual and verbal, helps juror retain, reinforce and recall key information.

Jury instructions rarely are written in a language that jurors can understand, which reduces the likelihood they will have the desired effect. Don’t forget your audience.  A great instruction is useless if it is riddled with legal jargon only lawyers understand.

During your closing argument, go through the instructions of law and verdict questions. Teach the jury how the law applies and where they should use it. If factually explained, not argumentatively, jurors accept the explanation as truth. And the lawyer who helped them understand the instructions is seen as a teacher, which enhances credibility.

Alexandra Rudolph owns Rudolph Trial Consulting, a full-service jury research firm in Chicago.  In the past decade, she has worked on high-profile cases with a focus on employment and labor law, intellectual property, products liability and other complex commercial litigation. She can be reached at [email protected].