20 Great Ways to Lose a Trial - Part 4

Feb 2

This is Part 4 of a four-part series. Click here for Part 1, here for Part 2, or here for Part 3. To get future updates delivered to your inbox, please subscribe to my newsletter at the end of this post. Thank you.

16. Don’t Anchor in Your Closing Argument.

A common belief among defense counsel is you undercut the strength of your no-liability argument if you suggest any dollar amount as a fair measure of damages. Offering your thoughts on damages, the thinking goes, constitutes a concession on liability. However, staying silent on a damage amount leaves the plaintiff’s lawyer’s damage number unrebutted in the jury room. Many defense counsel assume their perceived consistency in maintaining a no-liability position outweighs this negligible risk. But, what is the actual risk here?

Once again, the science of decision-making upsets the received wisdom – in this case by the concept known as anchoring. When we make quantitative judgments about uncertain matters (as juries do when deciding damages) even irrelevant numbers can skew our answers and behavior in surprising ways. Kahneman and others provide some stunning examples:

Persons are given a bottle of wine, asked to write down the last two digits of their Social Security number, and then asked the maximum they would pay for the wine. Those whose Social Security numbers ended in digits above eighty were willing to pay approximately three times more than those whose numbers ended in digits below twenty.
Subjects are asked to estimate the percentage of UN member countries from Africa. Before answering, people spin a roulette wheel rigged to land on either 10 or 65. Those whose wheel stopped on 10 gave an average estimate of UN membership at twenty-five percent, while those whose wheel landed on 65 gave an average estimate of forty-five percent.
In a more practical experiment, persons going into a store were asked either (a) how much money they had in their wallet, or (b) how much money they had in their bank account. Those who answered with the smaller, wallet-number spent less in the store than those prompted to focus on the larger, bank account-number.

The takeaway from these studies is the number you start with can dramatically affect where you end up. Car salespeople make use of this every day with artificially high sticker prices on car windows. The final, “manager-approved” offer seems like a great deal because it is materially lower than the initial – albeit illusory -- anchor.

Applying these insights to trial means if the defense provides no countervailing anchor for the jury to consider (and ideally to consider first) then jurors will have only the upper end as a reference point. This is shown to result in larger damage awards. In addition, in another study it even impacted liability. Mock jurors were presented with a case alleging a women’s birth control pill caused her ovarian cancer. The defendant was an HMO sued for prescribing the pill. When plaintiffs asked for $5 million in damages, jurors were 43.9% confident in causation. When only $20,000 was requested, only 26.4% were confident in causation. It works the other way too, however. An outrageously high damage request can negatively impact the credibility of the liability claim.

Anchoring is real. Stay silent at your clients’ risk and be aware a foolish number can backfire.

17. Don’t Try to Prove Your Case on Cross-Exam of Your Opponent’s Expert.

The other side’s liability expert comes with lengthy credentials and extensive trial experience. The safe course is to cross-examine her even-handedness, her preparation, and her understanding of the facts. But in no event should you challenge her on the merits; instead, leave that for your expert. Otherwise you risk looking foolish as you try to take on the opposing expert on her turf.

Fortunately for me, in my first years of practice I witnessed a trial lawyer who went against this advice with dramatic effect. The case involved allegations of permanent nerve damage caused by chronic chemical exposure from liquid grain fumigants. Four grain elevator workers targeted three major chemical companies with a product liability lawsuit and $24 million demand.

Plaintiffs’ case found support from a respected UW-Madison physician whose journal article asserted a link between the chemical in the grain fumigant and patients’ neurological conditions. The question was whether this chemical, at these exposure levels, could impact the nervous system as plaintiffs claimed? The case proceeded on a rocket docket with multiple potential plaintiffs across the country waiting in the wings for the trial outcome. Given the precedent-setting stakes for both sides no pretrial settlement discussions occurred.

In the months leading up to trial, I studied my colleague’s approach to deposing the plaintiffs’ experts. He fully understood the toxicology, neurology, and neuro-testing issues at play so that he could challenge the experts on their turf. At trial, he continued in this vein, demonstrating his ease with these medical and scientific concepts while making them understandable to the jurors. In so doing, he became an additional expert for the defense who could “testify” via cross-examination. This meant the jury did not have to wait for the defense experts to hear counterarguments to plaintiffs’ case – an all-important factor in mitigating the plaintiffs’ advantage from going first.

Since then, I have kept this example front of mind. When I am a defendant, I work to develop defense points with each of the plaintiffs’ witnesses – and especially their experts. When I am a plaintiff, I inwardly smile and thank my good fortune when defense counsel adheres to the “better to wait for my case and my witnesses” maxim.

18. On Cross-Examination, Have No Restraint

Like a hungry diner moving through an all-you-can-eat buffet line, the lawyer on cross-examination should sample every conceivable line of attack. After all, you followed the recommendation from Part 3, number 14, and kept the focus on your witness during direct. But now -- finally -- you get to be the star. Why make only three points when pursuing ten points will keep you in the spotlight longer?

The answer is not all arguments have equal strength and including weaker points among strong ones can damage your persuasiveness. Adam Grant describes the effect as follows in his excellent book, Think Again:

‘A weak argument generally dilutes a strong one.’ The more reasons we put on the table, the easier it is for people to discard the shakiest one. Once they reject one of our justifications, they can easily dismiss our entire case. . . . [We lose] ground not because of the strength of [our] most compelling point, but because of the weakness of [our] least compelling one.

So when you review the points you could make on cross-examination, think about how the witness will counter them – either immediately during your cross or afterwards on re-direct. I saw this in a product liability trial when the defense thought we had scored points by going through an expert’s lengthy list of prior matters, one of which involved a “chicken-feather plucker.” The jury chuckled at what they imagined that product to be, and we defense lawyers thought it made the expert look like he would testify about any and all products so long as he got paid. Our smiles evaporated on re-direct, however, when the plaintiff’s lawyer had his expert elaborate. We learned why the funny sounding machine served a valuable function. We also learned that because its on-off switch was in a different room, no one realized a worker was cleaning the inside of the machine and turned it on. It no longer seemed funny.

Be aware when you include a point on cross, you raise the issue’s profile. If the witness can effectively show the jury you are wrong on this point it makes the rest of your argument suspect as well (a/k/a “reverse halo”). The moral of the story is it’s much better to try to make three strong points and succeed on them all than it is to try to make ten points and only win on eight.

19. Tell the Jurors They “Must” Believe Your Case.

I urged you elsewhere to appreciate how jurors look for a dependable guide to a just verdict and thus your credibility is all important. Assuming you are successful in creating a connection with the jurors, you will want to tell them what they “must” decide. After all, what good is having all that credibility if you can’t direct the outcome?

The problem is many of us react differently when we see through the lens of what we “must believe” versus what we “can believe.” Julia Galef explained motivated reasoning in her recent book, The Scout Mindset, quoting psychologist Tom Gilovich: “When we want something to be true, we ask ourselves, ‘Can I believe this?” searching for an excuse to accept it. When we don’t want something to be true, we instead ask ourselves, “Must I believe this?,” searching for an excuse to reject it.” The “must” framing triggers a search for contradictory evidence to enable us to escape a mandated result. Jonathan Haidt describes the process as follows: “If we find a single reason to doubt the claim, we can dismiss it . . . you only need one key to unlock the handcuffs of must.”

I noticed the application of this concept in arguing motions to judges. I learned the more strongly I insisted a particular outcome must be the case, the less willing judges were to embrace my argument. As I noted to a younger colleague when I listened to him vociferously arguing a motion, “when you’re yelling you’re losing.” By contrast, a confident but softer sell worked better. Research on persuasion corroborated my impression, finding a less assertive appeal usually is more effective. Shouting (literally or figuratively) is not likely to get you where you want to go. (For more on the values of a confident humility, read The Scout Mindset).

As applied to jurors, you want to frame your case as one the jurors “can” believe, while you want your opponent to say they “must” believe in his case. For example, if you want to list in your closing all the evidence in support of your story, instead of concluding the summary with, “and therefore you must answer this verdict question “yes,” to make use of the resistance inherent in being told what we must do you might say, “and therefore opposing counsel is wrong when he says you must answer this verdict question “no.”

20. Ignore What You Learn During Trial.

You spent years getting ready for court, taking exhaustive discovery into every possible fact and theory, followed thereafter by filing multiple briefs. Your mock trial honed your strategy, your direct and cross-examinations are polished and ready to go. Once Opening Statements begin, you’re on autopilot delivering your well-rehearsed presentations. Right?

Not quite. The courtroom should be a crucible where the extraneous melts away and the truth emerges. Many times I have been surprised how events and issues not previously understood came into focus during trial. In one case, the timing of a 9-1-1 call and the officer’s arrival on the scene made it apparent the plaintiff’s fumbled arson plan caused his burns. We realized he called to report the fire before he set it. In another, the pieces of an inexplicable accident fell into place as we saw how time, travel distance, and machine capabilities tied together. It became clear the machine operator was going up a hill in the wrong gear and lost control when trying to downshift. Should we have had these insights before trial? Perhaps, but the trial’s intense focus revealed the truth.

Thus, you need to stay alert as the evidence comes in and be ready to adjust your understanding of events. But don’t discount the challenge of changing your mind. Certainty feels good and takes us to a place where we are not always right but never in doubt. Elmer Davis said it well in his book, But We Were Born Free: “It hurts more to have a belief pulled than to have a tooth pulled, and no intellectual Novocain is available.”

Julia Galef’s book, The Scout Mindset, lays out the path for trial lawyer to follow. Namely, aiming for a mental state described as “confident humility.” While trial lawyers of course need to be advocates for their clients and in L.B.J.’s words, “nothing convinces like conviction,” we risk foolish error when we lack an accurate picture of our case’s strengths and weaknesses. This problem is as old as recorded history. Galef quotes the Greek historian Thucydides writing about the reasoning of cities who thought they could overthrow their Athenian rulers: “Their judgment was based more upon blind wishing than any sound prediction; for it is a habit of mankind . . . to use sovereign reason to thrust aside what they do not desire.” Accordingly, we trial lawyers need to take off our blinders and embrace objectivity and self-skepticism – up to and through the trial. Intellectual curiosity and openness to competing ideas make for the best trial lawyers.

This is Part 4 of a four-part series. Click here for Part 1, here for Part 2, or here for Part 3. To get future posts delivered to your inbox, please subscribe to my newsletter below. Thank you for reading.