Friday, February 2, 2018

Motive Matters to the Success of Your Case - Always

Whether or not you believe motive is important to your case, motive is everything to jurors. In the absence of your attributing motive, the jurors will do so, and the motive they assign may not be favorable to your client.

This is particularly true in business cases, where the human heart may not seem to play as large a part. For example, a case involving copyright infringement, fraud, or breach of contract, may lead the attorney to focus too narrowly on the legal issues. They forget to bring to light the bigger human picture, yet that is the picture the jurors will focus on: Why was the copyright issued in the first place? Who invented the whatever, what did it mean to them, to their business, their life? How did these other people come to be involved? What’s the story of their connection, their hopes and dreams when they entered the relationship? Why did it fall apart? Why, why, why is a question the jurors will ask over and over.

When you answer these more human questions for the jurors, your case – and your client – become a living, breathing matter of importance to the jurors. It appeals to their hearts and minds in a way that allows them to care. Jurors must care about your client, about your interpretation of the facts, if you are to prevail. Giving them motive goes a long way towards helping jurors care.

Saturday, December 30, 2017

Be Courageous, Not Arrogant

While you undoubtedly assume a positive attitude going into a case (or try to!), it’s hard to remain upbeat when things go wrong. That’s when it’s good to remember that jurors identify with the Davids of the world, not the Goliaths. He or she who maintains a positive outlook and courage in the face of difficulties and long odds, wins favor with jurors. If, after all, you face the unexpected challenges and pitfalls of your case with a positive approach, you demonstrate by your refusal to be disheartened that your case is truly worthwhile. Never stop looking for a way forward, for the pluses, the upside of any situation.

That being said, do not confuse positivity with arrogance. An arrogant attorney assumes that he or she will be victorious just by virtue of being who they are. That attorney fails to support his/her conviction with reality, and neglects to marshal facts, arguments and witnesses appropriately.

Always remain humble about who you are. Courageous on behalf of your client, yes. Thinking you are better than everyone else, no. You are the presenter (and interpreter) of the facts, that’s all. The jurors are the most important people in the courtroom, always.

Sunday, December 3, 2017

Train Your Expert Witness to Educate

If you are blessed with an expert witness who not only is proficient in his/her area of expertise, but also juror-sympathetic, count yourself among the lucky few, and hit “delete.” If, however, you sometimes find yourself working with an expert who, although proficient in the required expertise, but less than juror-sympathetic, read on.

A common problem is the expert who holds an attitude of “This is so because I, THE expert, say it is so.” Jurors are not convinced by such arrogance, even if it is well-deserved. What does convince jurors is the expert who seeks to educate the jurors, rather than impose his/her opinion. Encourage your experts to present information in a way that guides the jurors through a series of logical steps that results in an inescapable conclusion that just happens to coincide with said expert’s opinion. 

You can help your expert get there by challenging him/her in prep sessions with questions such as: “Why do you hold this opinion? Couldn’t it be X instead?” “Explain it to me as you would to a high school student.” “How did you arrive at this opinion? What’s the logic, step by step?” Remind your expert as often as necessary that their job is not to defend/plead the case – that’s your job. Their job is to educate the jurors to why your interpretation is the one that should prevail. Educating is far more compelling than arguing or fighting with opposing counsel - which is, more often than not, a losing battle. And you’re there to win!