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.

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!

Help Witnesses Think Before Responding

Thinking out loud is ordinary, common, and acceptable in regular conversation. However, in a deposition, it can make the difference between solid responses, and responses that give opposing counsel more information than was required – and could damage your case.

For example, to the question: “Are your neck symptoms resolved as we sit here today?” the response was: “Well, my neck was sore from the incision for a while. And I have a pain in my shoulder from that other surgery I had back in ’10, but my neck, yeah, it hurts whenever I try to move my head, like when I drive.”

Thinking out loud gave opposing counsel information regarding residual pain from a prior surgery which could complicate matters for you. Not to say that witnesses should ever hide information, but if the witness had thought through his/her response before verbalizing it, the witness would have limited their answer to the pain experienced as a result of the second surgery – the one at issue.

Help witnesses to do their thinking inside their minds before they verbalize their response. Reassure your witness that the moment or two it takes to organize an answer in their heads will not appear like “fudging” or evading the question. Video-taped role-play as part of witness preparation helps demonstrate to witnesses that “think time” is really very brief, yet critical.