Conduct Direct and Cross to Your Advantage: Explore Jurors’ Potential Questions

Among the many objectives you have during direct and cross examinations is that of asking the questions the jurors would like to have answered. It’s easy to lose sight of the fact that you and opposing counsel are the jurors’ only way to find out any and all information.

Areas you or opposing counsel do not explore remain forever unknown to the jurors. The more you explore areas to the jurors’ satisfaction, the less opposing counsel’s impact.

“Inquiring minds want to know” is a good catch-phrase to borrow from the tabloids and keep in mind as you plan your direct and cross of various witnesses. At some point in your preparatory process, divorce yourself as much as you can from your primary role of advocate, and sit mentally in the jury box.

Review your questions and how you think the witnesses will answer. Ask yourself: “If I were I juror, what else might I want to know about this issue? What’s left unanswered?” Enlist the help of others, preferably non-lawyers, in this exercise, to help you figure out how to make sure the jurors get as many as possible of their potential questions answered.

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A Winning Tip Dr. Nelson recently consulted on:

Congratulations to Dan Hoven and Carlo Canty of Browning, Kaleczyc, Berry & Hoven, P.C. (Helena, Montana) for their successful 12-0 Defense Verdict in a medical malpractice case against a general surgeon alleging negligent injury of a vagal nerve in a unnecessary Nissen fundoplication surgery causing disabling gastrointestinal symptoms of bloating, pain, diarrhea and constipation, in addition to negligent removal of a perfectly normal gall bladder. Plaintiff sought approximately $2,225,000 in damages for loss of earning capacity, loss of established course of life and pain and suffering. 

Through The Jurors' Eyes: Persuasion 101

Regardless of how many times jurors are admonished not to do their own investigating, they do it all the time. When discovered, most often the case ends up in a mistrial, lengthy appeals or retrials. But these juror actions also tell us that lawyers are not doing their job. It’s time to stop dinging the jurors for attempting to ferret out the truth on their own, complaining that jurors are too uneducated or uninterested to understand a case as presented, and instead, give jurors the clarification they seek.

It doesn’t take much, especially when you bear in mind that visuals are the most convincing, quickest way to get your point across. For example, In People vs. Victoria Samantha Cook, CA Dist. 4 Ct. App., Div. 2, (Mar. 19, 2013), a juror bought toy cars during a deliberation lunch break, which the juror then used to reenact the accident central to the case. How complicated would it have been for the lawyers to demonstrate their interpretation of the accident with the simple expedient of toy cars? Or some other equally inexpensive and yet persuasive visual.

Do your best to see the case through the jurors’ eyes, understanding that jurors want to see for themselves whatever it is you claim is your best evidence. A little effort in that direction will take you a long way toward a winning case.

Take A Page From Oscar Winning Actors: Read Your Openings/Closings Out Loud Before The Trial!

Your opening may read brilliantly on paper, but here’s the thing: the jurors won’t be reading your opening, they’ll be listening to it. Listening involves different pathways in our brains. What may make a great deal of sense when read, can come across as just so much nonsense when heard.

The best example I know of is the classic “Eats, shoots and leaves.” A comma is all that distinguishes a murderer from a friendly Koala bear (“Eats shoots and leaves”)! Yet when spoken, the listener has little way of knowing which is which, unless of course, they are attending to the context.

If you want to make sure your opening will be heard as you want to be, read it out loud.

Step one is to read your opening out loud to yourself, because I guarantee you will pick up all sorts of issues with your written version that need to be addressed. You may even wish to record yourself speaking your opening, since it can be difficult to spot problems at the same time as you are speaking. Things to watch out for, for example; run-on sentences. Or the use of “they” “he” “she” or “it” without a referencing noun close enough to the pronoun. Or sentences that have so many conditional clauses, the meaning is lost long before the end of the sentence.

Step two is to read it out loud to a friend or family member who is NOT intimately acquainted with the material, and from whom you are willing to hear constructive criticism. In addition to whatever comments your friend makes, ask: “Is there enough emotion in this to grab your attention? Is my language clear enough so you never went “huh?” as you listened? Are my sentences short enough? Am I using repetition in a way that helps or hurts? Does the way my opening unfolded appeal to your common sense, or is it too complex?” and so on.

Do the same with your closing argument. Any actor worth his/her salt always rehearses out loud. A courtroom is, in many ways, a theatre.

The small amount of extra effort required to speak your words out loud may make all the difference between convincing the jurors of your case, or watching their eyes glaze over as your case peters out.