By Ryan H. Flax
What I’m about to encourage will seem elementary to the best litigators, but I’m writing from experience as a litigation consultant and a litigator when I say that many trial attorneys fail to properly develop the necessary two-track strategy for their case -- and lose because of it.
What begins at the early stages of case preparation as a single track, which includes general case building, wrapping one’s mind around the full scope of the relevant law, and filling in the facts where they are needed, must change to a two-track strategy directed towards both a jury presentation and a solid appeal record. These two tracks clearly do not have the same route or destination, but both are essential to winning.
Most attorneys are more familiar with the second of these two tracks, the solid appeal record. This is because it is the track that is most heavily burdened with law and facts. Most attorneys approach their case by identifying what the court of last resort has to say about the relevant law, i.e., what must be proven for them to win in the eyes of the court (we must, of course, fulfill all the “prongs” of the case law). Likewise, these same attorneys focus heavily on every fact they can soak-up relating to their case to decide where it fits into their legal position, build preemptive defenses relating to any “bad” facts, and search for hidden facts to support alternative theories of their case. This is all very, very important because it really is the foundation of any case. But, it’s not the only or even most important part of building a case for trial.
The first of the two tracks and the one that I’ve found a lot of litigators tend to overlook is building your case to satisfy a jury. What you’re about to do at trial is make an extended elevator pitch for your client and you’d better make sure the jury wants to hear it and more.
Often, too little time is spent on this first track developing a sympathetic story and theme, albeit based in the all-important facts and law from the second track, that will be presented to the jury. Litigation teams tend to wait until what I’d consider the “last minute” before trial (often in the war room outside the courthouse) to really put their story together and in a way that will be persuasive to jurors.
In my experience as both litigator and litigation consultant, I’ve found that during trial juries tend to find relatively few facts very interesting and “important” and then base the entirety of their decision in the jury room on those few facts. Attorneys need to recognize this and develop their trial story around those key facts.
If you don’t win at trial, you’ve got the short end of the stick when you head to post-trial arguments and appeal. You must carefully plan on the first track to plan to be successful on the second. The question now is, how is this done?
The first and most important thing to do is recognize this two-track necessity and begin to develop some themes around key facts early on. Work as a team to identify your story and what facts fit into it. Remember, stories are supposed to be interesting and entertaining. They have a beginning, a climax, and an ending. They have a theme and characters. Help your case by keeping the jurors from being bored by it and by making it understandable for them.
Once you’ve developed a primary theme and story and some alternates, test them. I encourage you to use mock juries, not for helping predict the outcome of your trial, but to see what themes and facts resonate with the jurors. Doing so will help you decide which facts and story lines are worth building your case around. You can test what images and litigation graphics help make your case and which documents really make a difference when you show them to the jurors. Finally, testing with mock juries can help you figure out what type of juror you do and don’t want in your actual trial - you may be surprised.
If using a mock jury is not in your budget, find some folks at your firm that are far removed from your case and test with them. Administrative assistants, receptionists, family members, paralegals, and junior associates are good for this testing in-house. Enlist the services of local high school students to perform as mock jurors (they’ll gain a unique experience and you’ll have about the right educational demographic for your jury, but consider how to deal with confidentiality).
In conjunction with mock jury testing, have demonstrative graphics professionally made to support your opening and closing statements, direct expert testimony, and expert cross-examination. These trial graphics can also be used to support your expert reports, which in turn will support the expert’s testimony at trial (see Fed. R. Civ. P. 26). Using trial graphics at trial makes your case far more persuasive and there are plenty of well-researched statistics to back up this demonstrative evidence theory. Furthermore, using graphics in your briefing and e-briefing will make you far more persuasive at these stages also.
The bottom line is that you first need to win the trial and to do so, you’ll need to convince jurors, who are used to learning by watching TV and surfing the internet, that your position is the better one. To do so, you must communicate on their terms and in their language (to a degree). By using well-crafted trial graphics, you will be able to teach and argue from your comfort-zone – by lecturing, but the graphics will provide the jurors what they need to really understand what you’re saying and will give them a chance to agree with you.
Jurors that understand you are far more likely to agree with you, because they feel that their emotion-based opinions are founded in reason. However, the trial graphics also allow you to impact them on that emotional level, which may be more important.
Now, I’ve strenuously urged you to put a lot of effort into the first track – that of trial presentation and working with your litigation consultant. I’m not suggesting that the other track be abandoned or even diminished. You must dot all your “i”s and cross all your “t”s and cram every important fact into evidence that will be or may become essential to a favorable appellate decision on your case. But, you should split your litigation prep into these two tracks early in the case and rigorously develop both for a winning litigation strategy.
Ryan Flax is the Managing Director of Litigation Consulting at A2L Consulting. He joined A2L after practicing as a patent litigator who contributed to more than $1 billion in successful outcomes.
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