Win Your Case by Winning Client Cooperation!

It’s often said that the practice of law would be great if it weren’t for clients . . . Clients, of course, are what drive your business, so like it or not, part of a successful practice is learning how to deal with difficult clients.

Most clients don’t set out to be difficult, but in their frustration, anxiety or fear, they are difficult. Given that understanding, one way to assure easier interactions with your clients, is to tell them up front what to expect. This will allay their fears to some extent, which in turn will usually make them less difficult to deal with.

Let your client know, at the beginning of the relationship, that the unexpected will crop up as you handle their case. This isn’t a maybe, it’s a guarantee. Every case has its unanticipated events. Sometimes that unexpected situation will be to your client’s advantage, sometimes not. Let your client know that you will promptly inform him or her of the bumps and hurdles as they come along, as well as inform them of how you expect to deal with said bumps and hurdles.

Ask your client how they prefer to be informed: by email, phone, never on a Friday, only in the afternoon, whatever. Your client may not like whatever you need to inform them of, but they will feel kept in the loop, and in the manner they have said they prefer. This, in and of itself, will often soothe your fitful client, for you have acknowledged and respected their preference, which in turn is likely to make things a little easier for you through the life of the case.

Valuable Lessons From the Vicky Pryce Trial

The Vicky Pryce and Chris Huhne trials, featuring, per the New York Times “a leading politician, his extramarital affair, a speeding ticket, his now-divorced wife and her decision to wreak her revenge” finally ended mid-March with both Pryce and Huhne being sentenced to prison.

What’s relevant to lawyers on this side of the pond, are the types of questions asked by the jurors of the Judge in the first Pryce trial. They were so basic as to astound His Honor, questions such as: “Can you define what is reasonable doubt?” and “Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it either from the prosecution or defense?”

To assume that the jurors are stupid or incompetent is to miss the lesson inherent in this trial: for whatever reason, the lawyers did not present the case in such a way that the jurors had answers to these basic questions.

You’d think that “reasonable doubt” was pretty easy to understand. I suspect that what the jurors failed to grasp was what were the “reasonable doubt” elements in the case. In other words, when you don’t, in closing, tie your jury instructions to the facts as you’ve presented them, you’re likely to have jurors who miss the connection. It’s up to you to connect the dots for the jurors, not assume that they will automatically do so, just because “reasonable doubt” isn’t exactly a rocket-science phrase.

As to the “Can a juror come to a verdict based on a reason that was not presented in court…” question, this is where focus groups come in very handy. Focus groups, when properly recruited and conducted as opinion gathering sessions, will tell you what are the reasons most likely to convince jurors of your case, which many times lawyers, caught up as you are in the legal aspects and minutiae of the testimony, may not be aware of.

Want to Win? Start Off On The Right Foot With Prospective Jurors

When prospective jurors walk into the courtroom, they only know one thing for sure: The courtroom is His/Her Honor’s private reserve, and the Judge’s word is law. Everything about the physical layout of the courtroom says “In this room, the Judge is Top Dog, and whatever he/she says is set in stone.” The Judge sits higher than everyone else. All must rise upon the Judge’s entrance, and may only be seated when told to do so. And whatever the Judge says, however erudite or nonsensical it may seem, becomes “what is” in that Courtroom.

So imagine my surprise, when I observe lawyers go directly against a Judge’s “what I expect in my courtroom.”  I know, from years of experience, that jurors ding any lawyer who fails to respect a Judge’s stated orders. The most common failure is the failure to respect time. The Judge says “Your mini-opening will be two minutes, no longer.” The lawyer launches into their mini-opening, the two minute mark is hit, the Judge cuts the lawyer off – sometimes, mid-word. The lawyer, hurt and surprised, sits down. The jurors look coldly at the lawyer. They heard the rule, why couldn’t the lawyer obey it?

You see, prospective jurors MUST appear when summoned, MUST be on time, MUST turn off their mobile devices, MUST sit where told to sit, and the list goes on. When the Judge tells you what you MUST do, you’re well advised to do it. Failure to do so makes you disrespectful, in the prospective jurors’ eyes, and less worthy of their consideration. Much harder to convince.

And since your jurors are within that pool of prospective jurors, abiding by the Judge’s edicts right from the git-go is the easiest, quickest way to get their approval.

Start off on the right foot with your jurors, and you’ve much better chances of ending on the right foot.

Get Those Undecideds On Your Side: With Jury Instructions

Despite the best efforts of all involved, jury instructions remain obscure and confusing to all but the most legalese-savvy jurors. Cases should be won or lost on their merits, but too often, cases are lost (or unsatisfactory verdicts obtained) because the jurors either did not understand the jury instructions, or how those jury instructions should be specifically applied to the verdict form.

Clarifying jury instructions so jurors can make their way through the verdict form fully understanding what their vote means, is important. That’s step one. But then it’s critical to move on to step two: letting the jurors know during closing argument not only how they should vote (according to you), but why.

It’s the “why” that is often left out. You need to arm the jurors already decided by your arguments with sufficient ammunition to convince the undecideds – reiterating the evidence/testimony simply isn’t enough.

“Why” consists of firmly tying specific evidence supporting your case to specific verdict questions, preferably in bullet form, which is easier for your decided-jurors to remember and use in their “Here’s why” during deliberations.

Undecided jurors are your “make it or break it” jurors, and they only make up their minds during deliberations. If you don’t give those jurors already on your side the information they need to swing the undecideds over, you leave the verdict up to chance. Or worse, up to ill-formed, confused, half-hearted attempts, for in the absence of solid rationale, what else can your decided-jurors argue?

How Touchy-Feely Can Help Win Your Case!

The question of whether to trust our logic or trust our emotions is rarely brought up in the context of legal matters, at least not from the lawyer point of view. Certainly, we discuss endlessly how this or that prospective juror’s mind-set (highly emotional versus highly rational) might impact our case, but not usually how the lawyer’s emotion would.

However, recent research by M. Pham, L. Lee and A. Stephen provides interesting insights into the positive impact lawyer emotions might have in winning cases.

In brief, their study showed that people who were more likely to trust their feelings were also more likely to accurately predict the outcome of a particular event. The researchers call this phenomenon the “emotional oracle effect.”

How does this apply to winning your case? Tune in to your emotions. If, when preparing a witness, you sense that something is “off,” don’t dismiss that because your logic tells you all is well. Trust your emotions enough to say something like “I notice that . . .” or “I’m wondering if. . .” which is a non-threatening way to probe further and take a look at whether or not what you sense with this witness has some basis in reality.

Similarly, you can review the demographics of your prospective jurors all you want and weed out the obvious “bad apples,” but when it comes down to “keep Juror A versus Juror B” – tune in to your emotions. Listen inside yourself for that intuitive  hit and go with it.

Your mind is bigger than your analytic prowess. Use all of it, rational and emotive, in the service of your success.