Explain “Why” to Make Your Case Matter to the Jurors

 

In a courtroom, it isn’t necessarily the attorney with the best facts who wins, but the attorney who best explains the relevance of those facts both to the case and to the jurors.

Certainly, you need solid evidence, but here we’re talking about what you need to do to get the edge. What, given the usual state of affairs by the time a case gets to court where both sides believe their evidence is strong enough to prevail, can you do to give you the advantage over your opponent?

Explain why. Why does your interpretation of the facts make sense? Why should the jurors care that their verdict favors your client? Why should this matter to the jurors? How does it impact their lives (work, family, children, safety, etc.), preferably in an immediate and direct way?

Explain through your experts, your lay witnesses, and most importantly, your closing argument, and of course your opening to the degree allowed.

We invest in the personal, in that which strikes home. That’s why stories have such an impact. They touch the personal. So too with explanations. Make your case matter, not just to your client, but to the jurors. 

Use Repetition to Drive Juror Acceptance of Your Case

When the jurors troop into the jury room for deliberations, every litigator’s dream is that each of them would, individually, spout your case theme/key points so that group consensus in your favor is inevitable.

But how do you get them to do that? By presenting a targeted, credible and compelling case. That’s a given. In addition, put the power of repetition to work for you.

Research by K. Weaver and colleagues shows that repetition, even by the same person or organization, is highly impactful: “…when an opinion is repeatedly broadcast at us by the same organization--think of a particular media conglomerate or an advertiser--we’re likely to come to believe it represents the general opinion. That’s despite the fact it is analogous to the same person repeating themselves over and over again.”

Not only should you, the trial attorney, repeat your themes and key points throughout your opening, examination of witnesses, and close, but all your witnesses, expert and lay, should be encouraged to include case themes and key points in their testimony.

Repeat, repeat, repeat! When you and your witnesses are consistent in broadcasting the same message over and over again, jurors are far more likely to accept it as the general opinion and adopt it as theirs.

 

How to Expose Witness Lies Effectively

 

As much as jurors resent a witness who lies, you must have inconvertible evidence that someone is out and out lying in order to even suggest it.

Even then, it’s best to let the jurors come to the conclusion that a witness is lying on their own. People are persuaded by their own reasoning far more than by your proffered statements. Use words such as “incorrect” “inaccurate” “not forthcoming” to describe a witness’s testimony as opposed to “lying” or “untruthful.” Let the jurors attach the word “lie” to the testimony – as they will, if your presentation of the witness’s falsehood is effective.

One of the most effective ways to help the jurors get there, is to use the tried-and-true  “Chart of Inconsistencies.” As defense, for example, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your forceful “And he lied!!” ever could.

Understand Jurors’ Desire to Improve Things

Faced with a number of options as jurors are when deliberating a verdict, people will often make decisions by translating each option into how they would feel emotionally about the anticipated outcome. The option that yields the most preferred emotional outcome is more likely to be chosen.

For example, improving safety is both a practical and moral action. Any verdict that encourages companies to improve safety feels good. The thinking goes roughly like this: “If we can’t make them care about safety because it’s the right thing to do, maybe we can make them care about safety because it’s the more profitable thing to do.” Being virtuous, on the side of what is right for the common or greater good, makes it easier for jurors to justify huge verdicts. People can feel good about themselves making such a decision.

Plaintiff’s counsel can use the above to help get the desired outcome. Defense counsel can use an understanding of the above to considerably weaken such an argument by pointing out all through the case the many ways in which the company already attends to safety.

There are, after all, two sides to every coin.
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I recently had the pleasure of being interviewed on "Legal Talk Network," produced by the State Bar of Michigan. The subject was connecting with your clients. Here's the interview link:

https://legaltalknetwork.com/podcasts/state-bar-michigan-on-balance/2019/06/connecting-with-your-clients/