Have you ever lost a trial that you thought you should have won?
Are your jury verdicts lower than what they should be?
If so, do you blame the “tort reform” movement as the cause of your failure?
Or was it the trial judge who made bad rulings on evidentiary issues?
In this article, I reveal the 5 most common trial mistakes that I’ve observed over almost the past 3 decades trying a large number of Superior Court cases and watching other lawyers during their trials.
The interesting thing is that none of these 5 mistakes have anything to do with tort reform or bad judicial decisions.
In my opinion, too many trial lawyers are in denial about why they’re losing cases. These same lawyers spend too much time blaming the dissemination of tort reform propaganda by big corporations as an explanation for their poor trial results.
They put too much emphasis on pointing a finger at others while completely disregarding the 4 fingers curled in their hand pointing back at themselves.
These poor verdicts generally have more to do with how those lawyers try their cases and less to do with the tort reform marketing messages their jurors are exposed to outside the courtroom.
Sure, I understand and appreciate and in fact am appalled, by the influence that corporate America and its misguided tort reform message has on our juries across the country.
At the same time, I’m convinced that a good trial lawyer can get a jury to correctly find in his client’s favor on any given day assuming that he goes about trying the case correctly.
What follows are the five biggest mistakes I’ve observed by opposing counsel and other lawyers trying cases.
I’m guilty of making many of these myself over the past quarter century of trying cases.
Here are the mistakes and here are the solutions.
MISTAKE NUMBER ONE IS NOT BEING PREPARED
It’s amazing to me how many lawyers show up for trial unprepared.
When things don’t go their way, they actually seem puzzled about the outcome. Almost without exception, they blame someone else or something else for their failure.
Remember the 6 Ps?
I’m talking about Prior Preparation Prevents Piss Poor Performance!
When you are assigned a trial date, immediately make a list of all witnesses and evidence you will need at time of trial.
I actually prefer to do this right away and no later than during the first month a new case comes into our office.
Once the trial date is set and, depending on your local rules, immediately subpoena or make arrangements to subpoena your witnesses.
This eliminates being exposed to the “missing witness” syndrome too many lawyers experience on a routine basis during trial.
Are lawyers who wait until the last minute to locate and subpoena witnesses really surprised when they can’t locate a key witness to appear at trial?
When it comes to physical evidence, immediately review the evidence code and make the necessary arrangements to do what needs to be done. I’m talking about things like witnesses, checklist, and stipulations.
Again, too many lawyers stumble through very easy foundational issues and questions while standing in front of a jury.
Sure, they may eventually get the evidence admitted but they lose the jury’s confidence and respect while doing so.
Most experienced lawyers will stipulate to foundation requirements if you seek the stipulation 60 to 90 days before trial.
If you wait until the last minute to seek a stipulation, they’ll interpret this as a sign of not being prepared and will probably, while blaming it on their client, refuse to stipulate.
In summary, do things early. Don’t wait until the last minute.
MISTAKE NUMBER TWO IS NOT BEING NICE OR PROFESSIONAL
I’m embarrassed when I see opposing counsel talk down to other lawyers in the courtroom, the judge, clerk and even the jury.
I cringe when opposing counsel talks in a condescending fashion to the court and during voir dire, opening statement and closing argument.
Although embarrassed and cringing, at the same time I’m smiling on the inside because I know opposing counsel is quickly alienating everyone in the courtroom from his client and case.
Human nature is pretty simple. People like to do things for people they either like or find fascinating.
When you’re in court, be that type of person. Treat everyone with respect and learn how to smile even when you don’t feel like it.
A smile can say a lot and go a long way to helping you bond with others. Of course, there’s a time to be serious but you can do so in a professional manner.
During voir dire and trial, stand when the jury enters and exits the courtroom. I also like to stand and move around the courtroom while asking questions if allowed by the court.
Don’t take yourself too seriously and even laugh when you make a mistake. Be human and be real. Jurors like and appreciate the effort.
In summary, by being kind and professional, you’ll become the most likable person in the courtroom. Also remember that a smile, and I’m talking about a real smile, can go a long way.
MISTAKE NUMBER THREE IS NOT SPEAKING FROM THE HEART
Too many lawyers try to be someone else during trial. They do everything they can to look and sound like the senior partner in their firm or some famous lawyer on TV rather than just being their unique, wonderful, and honest self.
During voir dire, opening, direct, cross, and closing, they rarely make eye contact with the jury and read from their script or outline. By doing so, they spend all their time during trial shooting themselves in the foot and no time whatsoever bonding with the jury.
When I’m in trial, I rarely use notes when giving my opening, closing or cross-examining witnesses. I spend all my time looking jurors or witnesses in the eye and engaging them.
I don’t have a memory anywhere close to being “photographic” but I do trust my knowledge of the case and its facts. I trust the rhythm, dance, and art of trial and by not limiting myself to an artificial script, I can easily get in tune with the moment and magical things happen.
My secret is to prepare a draft of my voir dire, opening and closing early in the case. As the case progresses, I tweak it with new information.
These are not simply paper documents. They are living and moving trial tools that, whether you realize it or not, you internalize. The information becomes part of you well before you walk through the courtroom doors and begin jury selection.
Sometimes I’ll add a short 2-3 word bullet point outline to make sure I don’t miss something but for the most part, I’m standing before the jury or witness and speaking from the heart.
There’s a connection that happens and it’s real. I rarely use legal words or terms unless they are specifically spelled out in my jury instructions. I use everyday words that my jurors will understand.
I talk in a way that helps us communicate with each other and develop rapport. The scary part for many lawyers is trusting this process.
I gained the courage about 20 years after watching one of Gerry Spence’s tapes of advocacy. Up until that point, I literally read everything from a list while trying to quickly look up and make eye contact with my jury or witness.
Even on my best day, this approach was ineffective. After watching Gerry’s video, I made a conscious decision to use his techniques in my next trial. I started off doing voir dire without any notes.
At first, I stumbled and the questions and dialog were strained. As things progressed and I became more comfortable with this new process. I trusted it and I trusted myself. I was able to easily carry it over to the rest of my trial and on to my trial lawyer career.
After our verdict, the positive jury feedback made me a believer for life. I bought into this approach to trial and for the next two decades, it hasn’t failed me once. I strongly urge you to leave your notes on the counsel table and do this too.
In summary- Be yourself. Be real and speak from the heart. Don’t use fancy legal terms to explain your case. Leave your notes on the counsel table.
MISTAKE NUMBER FOUR IS USING TECHNOLOGY THE WRONG WAY
Successfully trying a case before a jury is all about developing trust and rapport with your jury. You want to empower them to do the right thing and to help your client when nobody else will.
Leave your laptop on the counsel table. When interacting with the jury or witnesses, you want the focus to be on you and them. Not on a precariously perched laptop on top of the lectern.
Similar to your jury being distracted by you reading from your notes, the same factors come in to play when reading notes or an outline off the screen of a laptop during trial.
I understand and completely appreciate the psychology behind how powerful a DATELINE OR 20-20 type of presentation can be during trial. So if you’re going to use this type of technology, make sure everything works correctly the first time and without any pause in your presentation.
The jury’s confidence and respect for you will proportionally diminish for every second the jury is looking at your backside while your bending over trying to find a power source for your equipment that unexpectedly stopped working.
Smart trial lawyers always have an effective backup plan should technology fail. Without exception, so should you. If you’re going to use technology such as PowerPoint or videos, do so as an explanatory tool to assist your “human” trial.
And by all means, make sure, months before trial, that your technology fully complies with all evidentiary foundational requirements and court rules. Refer back to “Mistake #1” if you still have questions about when you should be completing this task.
MISTAKE NUMBER FIVE IS NOT ASKING YOUR JURY FOR SPECIFIC HELP
You’re in trial because your client needs help. Briefly touch upon this with your jury during voir dire and your opening. After you’ve developed trust and rapport during the trial process, be clear and emphasize what help you need during your closing.
All of the above should be carefully incorporated into your trial theme. I’ve seen one trial lawyer after another come across during trial as though he or she were bored or wished he or she were someplace else.
Speaking in a monotone voice and mixing up the names of the witnesses and parties is inexcusable. Some lawyers explain the law and facts to the jury during closing and try to tie it all together with a couple of jury instructions.
This style of trying a case never makes it clear to the jury what you want them to do next. Worse, they also fail to empower the jury to be proud of the process and make a statement to the community with their verdict.
You can correct this by letting the jury know why you NEED THEIR HELP!
Here is a hint- use these exact words during voir dire and opening. Tell them you NEED THEIR HELP!
Again, until you’ve developed trust and rapport with your jury, it would be wrong and ineffective to ask them to believe you over your opponent at this point in the trial.
Right now, you’re planting seeds for the crop you’ll cultivate and grow during the trial process. As you try your case and intertwine your theme with your voir dire, opening, direct, cross and closing, you’ll be gaining trust with your jury and they’ll begin to understand why you’re there and what it is you need them to do for you.
Handle your trial like I mentioned above and then harvest your crop during closing argument. By this time you’ve gained their trust and respect.
Tell them, “my client needs your help” and in story format, talk about the intangibles and harm experienced by your client. Don’t waste their time reiterating all the facts that they heard during trial.
Do talk about how the harm has affected your client’s family, business or life. Be specific about the amount of money it will take to correct this harm and make things right.
Give your jury guidance as to what the verdict should be and then trust them with their decision. Starting with voir dire and ending with your closing, remind your jury that this is the only opportunity your client will have to seek justice.
She can’t come back into court later. This is your client’s only chance.
She needs your help and that’s why you’re here.
In conclusion, in my opinion, trying a case is all about being real and transparent. It is about being prepared and developing rapport with your jury and for that matter, everyone else in the courtroom.
I share the above most common mistakes with you because number 1,
I’ve made them all myself and number 2,
if you can overcome these 5 mistakes, I know you can be an effective and successful trial lawyer.
Everything else you do to improve as a trial lawyer is simply icing on the cake!
If you enjoyed this trial tip, please share it and our site with other trial lawyers who you feel may benefit from it too!
Remember to make today your masterpiece.