20 Great Ways to Lose a Trial - Part 3
This is Part 3 of a four-part series. Click here for Part 1, or here for Part 2. To get future updates delivered to your inbox, please subscribe to my newsletter at the end of this post. Thank you.
11. Assume the jury is not watching you.
During trial it is easy to think you’re not being watched. So you quickly check your phone for texts and emails, you laugh and joke with opposing counsel during breaks, and you treat court personnel as if they are invisible. But courtroom architects place the jury box where the jurors can see everything. If you don’t think so, sit in a juror’s chair next time you’re in a courtroom and you will be surprised.
For the jury, the courtroom is a foreign environment they are struggling to understand. Like tourists on their first trip to Times Square, they are alert to everything. When you check your phone when court is in session, they are reminded how their phones were taken from them and wonder why you are not paying attention. When you are professionally distant with opposing counsel when you are plainly on stage but backslapping when you think no one is watching, they will wonder if you are an actor trying to fool them. And because jurors see the court personnel as neutrals like themselves, your rudeness to staff puts a damper on your likeability score.
Therefore, be aware whenever you are in viewing distance of jurors – in and outside the courtroom. Multiple sets of eyes are watching from an elevated perch, and they will see you. Always be respectful, professional, and careful never to act in a way that can be misunderstood to your client’s detriment.
12. Ignore Your Anxiety
As you stand up to address the jury for the first time in voir dire, you may feel like the Naked Cowboy in Times Square – on stage and fully exposed. You hope you don’t drop your notepad, bump into the lectern, forget your client’s name, or otherwise look like an incompetent fool. While you’re desperately trying to channel Chad Boseman in Marshall and James Stewart in Anatomy of a Murder, visions of Cousin Vinny play in your head. You tell yourself your anxiety doesn’t show and, if it does, it doesn’t matter. I’m sorry, but you’re wrong on both counts.
First, jurors are looking for an honest guide to help them reach the right result. And it comes as no surprise that we rely heavily on demeanor and other physical cues to assess honesty. Now as detailed in Malcolm Gladwell’s new book, Talking to Strangers, it turns out demeanor and physical cues can be wholly misleading. Mistaken reliance on these signals enables confident charlatans like Bernie Madoff to take in billions of dollars, and costs innocent but awkward people like Amanda Knox to be falsely accused and convicted. (For more on the likelihood of misreading signals of honesty or deception, see J. Levine, Duped: Truth-Default Theory and the Social Science of Lying and Deception (Tuscaloosa, AL, University of Alabama Press, 2019 (on which Gladwell relies). Nonetheless, showing your anxiety will make it harder for the jury to see you as their guide to a just verdict.
Second, in addition to the impact on the jury, your anxiety makes it harder for you to do your job. Intense stress brings on cognitive narrowing. For example, we all remember the phenomenon of having an answer on the tip of your tongue during an exam, which answer suddenly pops into your mind as soon as you hand in your test. Under intense emotional states our thinking narrows. As applied to a jury trial, narrowed thinking can prevent you from seeing how to take advantage of unexpected moments like a witness’s surprisingly helpful answer on cross-examination. Effective trial lawyers respond to trial opportunities; anxious lawyers don’t see the opening and/or in the heat of the moment can’t think of how to react.
Thus, you need to find ways to control your anxiety, project calm confidence to the jury, and be ready to adjust to trial surprises. One technique is to watch a YouTube clip of your favorite comic or a hilarious movie scene. If you search, “Mayo Clinic stress relief from laughter,” you will learn the physical and emotional benefits that follow a good laugh. Cortisol is the primary stress hormone and increasing oxygen intake through laughter decreases cortisol and increases endorphins. So the next time you’re over-stressed by the prospect of facing the jury, take out your phone and watch whatever makes you chuckle (if not guffaw). For me, it’s the eleven-minute opening sequence in the Coen Brothers’ Raising Arizona - -give it a try.
13. Ignore Feelings of Sympathy
We discussed in Part 2 of the Series, Item 6, the common instruction to juries, “free your minds of all feelings of sympathy, bias, and prejudice, and let your verdict speak the truth whatever the truth may be.” One might think juries listen to this instruction, which is given after all the evidence has come before them, and then retroactively wipe away their emotive responses to what they saw and heard. But as set forth in Part 2’s discussion of decision-making science, this isn’t how our minds work.
I write separately about sympathy because it plays such a significant role in catastrophic injury cases. For example, we all cringe when we learn of a child’s death and parents immediately say a silent prayer to be spared this horror. Can a parent (or anyone) sitting on a jury in a case about a child’s needless death simply set aside their feelings for the parents?
Or consider the recent Ahmaud Arbery case. The prosecutor closed her rebuttal argument by juxtaposing photos of Mr. Arbery alive and dead, stating the defendants “turned this young man into that young man.” Courtroom observers described the power of these images and words, just as one would expect. Again, it would take a cold heart to see death photos of a formerly vibrant young man and not be moved – which would be why this excellent trial lawyer finished her presentation in this way.
So what to do if you are a defense lawyer? One answer is to help jurors anticipate the sympathy they naturally will experience during the case. I talk about it in voir dire, quoting from the standard instruction they will get at the end of trial about setting sympathy aside. I explain why this instruction will be particularly important in this case by talking about the painful, sometimes gruesome facts and showing some of the especially difficult photos. I compare the jurors’ work to that of a surgeon who must operate without letting sympathy interfere with her judgment, which is why doctors do not operate on family members. I then ask now that they know some of the painful facts of the case whether they can follow the instruction. I ask whether they will object if a fellow juror says during deliberations they want to vote for the plaintiff without regard to the defendant’s fault because they feel bad for the plaintiff. I ask if in all honesty they will not be able to recognize and control their sympathy such that they cannot be jurors for this case; many have said they cannot and were excused. I then return to the issue in closing, reminding the jurors of what we discussed in voir dire and the importance of being aware of sympathy’s power during deliberations.
Now it would be foolish to believe this can fully offset powerful human feelings, but it helps. And it can mitigate some of the effects when plaintiff’s counsel goes into detail about their client’s injuries, with jurors silently telling themselves, “my reaction to this evidence is what defense counsel talked about in voir dire.” For more on this topic, see this interview with the lawyer who did so much to advance thinking on this issue.
14. On Direct Examination, Use Lots of Leading Questions so the Focus is on You.
You have waited years for your moment in the sun. Endless hours of drafting discovery, reviewing documents, and writing briefs are behind you and now you get to stand up in court to present a witness on direct. All eyes will be on you as you dazzle the jury with your brilliance, using your witness as a means to showcase your skills. Not so fast.
While a different approach obtains on cross-examination, the focus during a direct examination should be on your witness -- not on you. Your witness on direct is an actor through whom you are telling your client’s story so make sure the jury pays attention to your witness rather than you.
Lawyers’ principal mistake on direct exam is asking too many leading questions. When your witness is simply responding, “yes” and “no” to your statements pretending to be questions, jurors need to look to you to understand the narrative. The witness’s role is reduced to affirming this narrative, while the main attention is on you.
Instead, plan your direct using topic headings to orient the witness and jury (e.g., now let’s talk about your due diligence efforts before the deal closed). Then ask open-ended questions that invite the witness to elaborate, to provide context, to explain motives, and so on (e.g., tell me about what, if anything, you found difficult about conducting your due diligence). When you approach direct examination in this way, your witness will come to life for the jury and their credibility (hopefully) will become apparent. This does not happen when the witness is just saying “yes” and “no.”
15. Don’t Worry About Your Credibility With the Judge
Judges sit above the fray, call balls and strikes without regard to the teams before them, treat each lawyer with equal respect, and are wholly neutral arbiters. While that is the ideal, most judges are more human than these standards allow.
Just as effective trial lawyers need to see their case through their jurors’ eyes, so too must they engage their empathy toward the judge. Judges’ workloads can be crushing, the mix of subject matters enormous, and their patience worn thin by years of lawyers bickering over each other’s conduct and other often inconsequential matters. And while Article III federal appointments offer prestige, multiple law clerks, and job security, most other judicial positions have fewer support staff and other perks.
If you were a judge, how would you like lawyers before you to advocate? Would you like them to argue every possible point, or would you want them to concede when they must that their opponent’s position is correct? I will always remember the surprised look on a judge’s face when I said, “if I had a good counter to that argument, judge, I would tell you – but I do not.” That judge treated me with great respect going forward and, I believe, gave me the benefit of the doubt on close calls. Judges after all, like jurors, are looking for an honest guide to the right result.
Further, if you were a judge, would you want each side to give you briefs that ignore the other side’s best arguments as if they didn’t exist, or would you want the lawyers to address them head-on and rebut them as best they could? To ask the question is to answer it, but too many Response and Reply briefs are neither.
Similarly, if you were a judge, would you appreciate the lawyer who volunteers to do tedious chores like drafting Proposed Orders, gets her briefs in on schedule and within the page limit, and generally helps keep the case moving? Of course you would. Now, imagine how you would feel about a lawyer how does the opposite?
Finally, as alluded to above, if you were a judge would you want trial counsel continuously to be making snarky comments about each other? Our clients want and need us to be their advocates, and when we feel our client’s interests are being maligned we want to stick up for them. But when you get caught up in personal back-and-forth with opposing counsel, with each side accusing the other of dastardly deeds, you miss how unprofessional it seems to the third-party neutral. Don’t fall into this downward spiral; it’s not only dispiriting, it undercuts your credibility.
This was Part 3 of a four-part series. Click here for Part 1, or here for Part 2. To get future posts delivered to your inbox, please subscribe to my newsletter below. Thank you for reading.
