Top 10 Fundamental Jury Trial Practice Tips
By Daniel K. Bryson
The following trial tips are for attorneys who try cases. Over the past 25 years, and particularly in the last few years, I have spent many, many weeks in a variety of complex commercial litigation jury trials, which have resulted in millions of dollars in verdicts. As the years have gone by, I have noticed, or developed, trial techniques that consistently work well. I have also seen techniques that go over with the jury like the proverbial lead balloon, and observed some astonishingly bad things that lawyers do during trial. So the following advice includes not only the practices that work well during trial, but also the practices that don’t work well during trial. Close adherence to these items will help make you a better trial lawyer and result in better verdicts for your clients.
1. Watch the jury to see how you are doing
Some of you may say "duh" - of course you do that. However, I’ve noticed that once trial begins and the bullets start to fly, most attorneys don't observe their jury closely enough. Pay attention to them: watch how they are reacting to your witnesses and to the witnesses of your opponent. This should be common sense, but we can get so caught up in a particular witness that we forget to judge the impact on the jury. I often ask an associate, co-counsel, or a paralegal to observe the jurors while I am putting on the witness or cross-examining a witness. Jurors are people, and most people do not have good poker faces. Their facial expressions tell you whether they like you or your witness. Do they smile at you when you make eye contact, or do they avoid eye contact? Does the juror nod his head approvingly when your witnesses are testifying? If the judge allows note taking, is the juror taking notes when your witness is making important points? And, finally, do the jurors make eye contact with you when they file back into the courtroom to announce their verdict? If not, it’s usually a bad sign.
2. Structure your evidence to support the three main points made during your opening
Your entire trial should have a plan that revolves around three main trial points or themes. Most law school trial classes teach this tried and true tip, but it is so essential it bears repeating. Your trial must have a carefully thought-out plan or strategy. You simply don't realize the information dump that hits jurors. If you don't continually hammer home your three main points, jurors will seize upon or focus on irrelevant information. I have spoken to numerous jurors after a trial, and I'm always amazed at what they think was important versus what I thought was important. I've read that people forget an astonishing amount of what you tell them in a very short time period. Therefore, it is important to keep making the same points and driving them home with everything you do in the trial.
Recently, I was a judge in a mock trial competition. I had read the materials beforehand. There were two witnesses for each side, four or five exhibits, and a few short deposition excerpts. The trial lasted about two hours. Of course I didn't know the material as well as the competing law school teams, but I was amazed at how difficult it was to process the information. It was so much easier to understand when a team reiterated their three main themes. This practice is critical in a simple mock trial, and even more so in a real trial.
3. Use effective illustrative exhibits
This sounds obvious, but jurors really need simple illustrations of the most complex points of your case to help them understand your evidence. Also, jurors love good illustrative exhibits. A good illustrative exhibit is good trial strategy in several respects. First, it forces opposing counsel to attack the point being made by the illustrative exhibit (which they were going to do anyway), BUT on your terms with your exhibit. Also, I have found judges to be very liberal about not requiring notice to opposing counsel, which means their cross examination will be less effective. Don't get me wrong, I'm not saying to not provide proper disclosures; I'm saying that you can call your expert down from the stand and ask him to "illustrate" important points in his testimony without having to give prior notice.
In a recent case we had to deal with a complex issue of which type of "filter fabric" drained the best. The fabric was used in a sea wall that had failed. Sounds really dull (and it was). In order to liven up this critical point we filled mason jars with water, attached samples of various fabrics to the tops, then turned the jars upside down to see which fabrics drained the best. The fabric used by the defendant contractor to construct the sea wall didn't drain at all, and the retained water added too much weight to the sea wall, causing it to fail. The jury was crystal clear on this point when we argued that the improper fabric contributed to the failure of the sea wall. In summary, think of your most complex point and figure out a simple way to present it.
4. Anticipate evidentiary conflicts and have a short memo prepared
During every trial of any length there will be a number of evidentiary disputes. Most will turn on a particular rule of evidence. I'm amazed at how many lawyers do not seem to be prepared when evidentiary disputes arise. If you really know your case, and the case of your opponent, you should be able to anticipate the vast majority of these issues. For example, most disputes that I have been involved with in recent years seem to arise from documents, letters, charts, reports, and articles. Which of these items are admissible and which are not? Expert reports are hearsay! Letters are hearsay unless introduced through the author. Articles, at best, are learned treatises which can be discussed with a witness, but can not be admitted as substantive. Governmental reports are self-authenticating, but opinions contained in them may not be. My point is to be well prepared for these types of issues, because they are certain to come up in your trial. Also, if you anticipate that your objection will take more than a few minutes, ask the judge to dismiss the jury to avoid frustrating them.
5. Cross-examination should consist of your testifying
In my opinion, this is one of my most important tips, and every trial guide makes this point, too. Ninety percent of cross-examination (if not more) should consist of you making out your case and the witness responding “yes” or “no” to your carefully crafted questions. I never ask a witness an open-ended question during cross-examination unless I know the precise answer. This requires a very good summary of the witness’s deposition, so that if the witness varies in any respect from their testimony you can promptly impeach them with the transcript. I probably spend more time working on carefully crafted cross-examinations than anything else. A good cross-examination needs to be focused, hard hitting, and effective.
6. Don't elicit irrelevant testimony in a complex case
Jurors want to do a good job, and most of them attempt to try to understand everything that is being said. Accordingly, you should only elicit relevant and critical testimony in support of your case. Not only is it good practice, but Rule of Evidence 401 requires it. If you elicit irrelevant or noncritical testimony you will either confuse the jury, or the jury may give undue weight to this irrelevant testimony. Remember, jurors are hearing your case cold. They have a difficult time processing relevant and critical evidence, so don't make it harder by eliciting irrelevant or not critical evidence. I will often interrupt a witness if they veer into irrelevant areas.
7. Have your expert "teach" the jury as much as possible
I have some very firm opinions about presenting expert testimony. If done poorly, jurors’ eyes glaze over when experts are testifying. If done properly, jurors find the expert’s testimony fascinating, and their natural curiosity is engaged. First and foremost, an expert should "teach" the jury. This involves the expert stepping down from the stand, using effective illustrative exhibits, and drawing simple illustrations of his opinions, if appropriate.
An expert's testimony should be divided into three main categories. First, his credentials. Firmly establish that your expert is very knowledgeable. You should spend at least 15-30 minutes with the expert to describe his background. Introduce his CV as an exhibit and display it on-screen for the jury. It is very important that jurors view your expert as someone with real expertise and not just a hired gun. Next, have your expert "teach" the jurors about the complex ideas or principles he is going to testify about as applied to your case. This part of the testimony should not discuss the specific facts of the case; rather, the expert should explain principles that are difficult to understand. For example, we had a case involving defective roads in a development. The expert spent significant time testifying, with simple diagrams, about how roads are constructed, but didn’t mention our specific roads. Finally, the expert should show how the principles he just “taught” the jury apply to the facts of the case. At this juncture, jurors should be able to understand how there was either adherence to or deviation from the industry standards they have just learned about.
8. Call adverse witnesses during your case
This has worked for me many times through the years. Call your most adverse witness during your case, often as an early witness. If you have taken a good deposition, you can craft a very succinct examination of your most adverse witness. This examination will both highlight their unreasonable behavior as well as support your theory of the case. Since the witness is adverse, you will be allowed to lead them during the examination. This always seems to annoy defense counsel immensely, because they are then faced with the tough decision of whether to do their direct testimony of that witness immediately following your questioning (which they are often not prepared to do), or save it for their case. It puts them on the defensive immediately, which is obviously what you want. If you do this effectively, it will completely eviscerate the defense case. By the time you rest the jury has already heard the defense case, but in a manner most advantageous to the plaintiff. It takes guts to do this, but trust me: it works.
9. Address the weakest points for each witness during their direct examination
This is critically important. Why let opposing counsel dramatically flay your witness over a bad point if you can bring it up, address it squarely, and put it in the light most favorable for you? Then when the opposing counsel brings up the issue the jury will already believe the main points your witness made during direct. For example, in a recent trial we had a contractor witness who had estimated the multimillion-dollar repair costs for the damaged property at issue. Unfortunately, the contractor did not have the appropriate contractor’s license to bid on or do work of this value. This was a problem. However, when we brought this issue up on direct the contractor explained how he "obviously was not appropriately licensed at the present time," but he “certainly would obtain the appropriate license before contracting for the work," and he “would never attempt to contract for work for which he was not appropriately licensed,” etc. You get the point. When defense counsel attacked him on this valid weakness, the jury had already decided it was no big deal. Bottom line: address your weaknesses. Don't fool yourself that defense counsel may not bring them up.
10. Never let the judge or jury see you sweat
It is critical that you always project absolute confidence in your case in front of the jury and judge. I always like to roll my eyes slightly when leaving a bench conference in order to create the impression that opposing counsel is once again making a stupid argument and trying to keep the truth from the jury. Body language is very important. Displaying confidence at all times in the courtroom is a must for any trial attorney. People pay attention, at least on a subliminal basis, to how you walk and talk during a trial. Since the jury cannot talk about the case, they will talk about the attorneys: what they are wearing, if they fidget, and so on. I've had jurors tell me after a trial, "I liked you, but to be honest, it was annoying when you rattled your change in your pocket while standing." I didn't know I had done this, and I stopped carrying any change during trial. In summary, jurors pick up on whether you truly believe in your case, and they pick up on your level of preparedness.
Daniel K. Bryson is a founding partner of Whitfield, Bryson & Mason, LLP, and specializes in construction defect litigation involving mass torts, class actions or individual litigation. He practices out of the Raleigh, N.C. office of Whitfield, Bryson & Mason, LLP.