A few weeks ago, I watched some very seasoned attorneys try a negligence case. I was only able to watch one day of testimony but spoke with many other attorneys and lay people who were able to catch the opening and other witnesses that I missed. I wanted to track this trial simply because the attorneys are known to be phenomenal. The jury returned a defense verdict. Although there are many factors that contributed to that verdict, including a tough fact pattern, I want to dissect the few issues that I noticed which I believe contributed in some fashion to the loss. I do not want to mention any attorney names or case facts as I don’t want to embarrass anyone (these really are wonderful attorneys). I hope this post will focus you on a few basics so that you don’t make the same mistakes in your next trial.
1. Speak in layperson’s language. Although this is basic for many trial attorneys, it bears mentioning as even the most seasoned attorneys seemed to have forgotten this rule. The attorneys in this particular case spoke about the incident and the equipment involved in technical terms. All through opening and the first few witnesses, equipment was referred to by technical names and every person in the audience that I spoke with was as confused as I was. The terms were only defined when the defense attorney cross-examined the second witness and asked the witness to define what the term means. By that point, the jurors were likely confused all through opening and the first two witnesses. This poses two problems: (1) opening is critical in your ability to convey a clear, concise story as jurors will view the rest of trial through the lens you provide them and if that lens is foggy, you lose a lot of ground, and (2) as written and spoken about by David Ball and Don Keenan through their work on the Reptile, jurors see anything confusing as being dangerous and untrustworthy. That is certainly not how you want to be viewed at the start of trial.
2. Order of Witnesses. I just wrote about the ordering of witnesses in my last post, but will mention again the importance of knowing what your witness will say and how they come across on the stand. The first witness should be infallible. In this trial, the first witness almost caused a mistrial by mentioning previous accidents. He was uncontrollable and even the attorney mentioned that he and the witness had not spoken other than on the phone. Do not chance your first witness on someone you’ve never met or prepped. Make sure they are strong and that cross will not harm you.
3. Be Polite. This one I have to praise these attorneys for. When the judge admonished them to do something or to stop asking the witness the same question, they said “Thank you, Your Honor, you’re absolutely right” and then they moved on. Staying so calm does two things: (1) It draws less attention to the objection than if you make a big deal of it, and (2) It portrays you as a like-able person.
Again, I’m sure there were many other factors that contributed to the defense verdict, but the above issues most likely had some part in it. Make sure you don’t fall into these same traps.
3 responses to “Lessons from a Defense Verdict”
Thanks for the reminders, especially point #1. We recently focus grouped a wrongful death case involving the failure to diagnose a DVT. Throughout the presentation the speaker kept referring to a “sonogram” that should have been performed. When I reviewed the deliberations I realized that the group was never told what a sonogram is. I was particularly surprised when the foreperson (a paralegal in a PI firm) described it as something completely other than what it is.
That’s exactly right. Sometimes you may think terms are so simple and that most people know what it means but you really have to think like a 4th grader (or run the case by some 4th graders). It gets even harder to determine what constitutes a technical term when you’ve worked on the case for so long. Focus groups are very helpful for those types of things.
My favorite example of jurors not understanding a term: In a professional liability case, jurors thought they were hearing that “the defendant lawyer blew the statue.” My second favorite — though this was for the public, not jurors — is the wrongful death lawyer who advertised, “We help you recover.” And my third favorite is too gross to relay. When Jessica tells you to speak plainly she is absolutely right, and doing so is far more important than you may think. Don’t blow it.