10 rules to improve your chance of winning at trial

Paul Luvera, The Daily Record Newswire

It can be easy for lawyers both old and new (but particularly new) to get so wrapped up in all the complex discussions about the psychology of trial that they overlook the fundamentals of winning.

So for plaintiffs’ lawyers just starting a practice, or veterans who may have drifted off track, let’s look at some of the basics observed by trial lawyers who win. Here is a collection of 10 rules that will improve your chances of victory in the courtroom.

1) Simplify your case. The most common mistake lawyers make is to overcomplicate. How do you simplify a case?

• Make sure you’re able to state what your case is about in a single sentence. Think of the salesman’s “elevator pitch.” If you can’t describe your case in a simple manner, you don’t understand it well enough to try it.

• Be sure the evidence you decide to produce at trial supports the single central idea of your case.

• Explain the defendant’s conduct through a unifying motive and intent.

• Present your evidence in a chronological order, using a timeline for jury assistance.

• Prepare and organize. You will not be able to simplify the case unless you have it ready.

2) Appeal to self-interest. Keep in mind what motivates the jury: It’s not concern for your client; it’s the question in the jurors’ minds, either consciously or self-consciously: “How does this case affect me, my family or my community?” The No. 1 way to make people listen is to show them what’s in it for them.

3) Remember: Jury selection is a conversation, not an interrogation. Your goal in jury selection is to encourage discussion through questions about feelings and opinions. Your aim is not to disqualify jurors, but to create a small group motivated to listen to you because they trust you. Keep in mind personal zones of privacy when you stand in front of the jury. Stay back far enough to respect jurors’ space.

4) Answer the jurors’ unexpressed questions. The jurors all have questions, and you should answer them. What is this case about? Why has this lawsuit been brought and what does the plaintiff want? What does the defendant say? You should be the attorney who answers the questions, because they look at who is telling them. They look for a leader, a teacher, a guide and someone they can trust. That should be you.

5) Paint the picture of your case — simply. Your case should have a single theme and should be framed in your opening statement in the tightest possible way. People make up their minds very early in a trial, and once they do, they are slow to change their views. You may or may not decide to give them a figure, but you must discuss damages and at least promise that you will show them how to appraise the damages at the end of the case. You need to discuss defenses and the evidence you will present in that regard.

6) Always tell a story. We know that everyone is mentally geared to listen to a good tale. Be a good storyteller and learn how to tell a story right: a long-ranging narrative that stretches from the beginning of the case to the end, including cross-examination.

7) Remember the importance of non-verbal communication. We know that non-verbal is probably more important than verbal communication. How we stand, how we talk, how we act all communicate more than the words we use. Where do we keep our hands? Are our gestures congruent with what we are saying? Is our stance open with our hands open to the jury? And nothing is more critical than eye contact. Maintain it at all possible times. The greatest fault of most lawyers is talking too fast and too much, so remember timing and pauses. They matter.

8) Make direct examination personal. We need to learn to make our direct examination personal, not a stilted chronology. After we have the required identification information, we should explain why this witness has been called with a simple question, such as: “You are the doctor who treated Joe Brown and are here to tell us about your medical conclusions and treatment, correct?”

With non-expert witnesses, consider a personal approach: “How do you feel right now?” or “What is it you would like this jury to know?” Try to make the witness human through your demeanor and by extracting some personal background. Don’t make it sound and look like the police questioning the accused. It’s a story, not an interrogation.

9) In cross-examination, stick with the big points. Jurors are not interested in nitpicking attacks on witnesses. If you have a major impeachment point, use it — but don’t bother with the minor details, which will make you look like you’re wasting time and picking on a witness. Remember, cross-examination doesn’t have to be cross (though it can be, if necessary). Your demeanor should be professional and generally courteous. Leave the finger-shaking for the movies.

10) Remember: Final arguments need not be lengthy to be persuasive. Lengthy trials do not necessarily require lengthy summations. If one has correctly told the story and consistently maintained the theme throughout the case, summation is the retelling of that story supported by key evidence. Damages should be explained in terms of past and future time periods. Economic damages should be carefully distinguished from non-economic damages.

Jurors should understand that economic damages pay bills due others, and non-economic damages represent justice for harm done (and therefore, damages appraised for non-economic harm represent pure justice). It’s a sum of money that the jurors have found equals the suffering. That assessment is made without regard to the needs of the plaintiff, the wealth or poverty of the plaintiff, or any factor other than the question: “Is this sum of money equal to the total harm done to this person?”

These basic rules for winning cases are not complicated, but all too often they are overlooked. The courtroom can be a complex maze to navigate, but don’t make the mistake of forsaking the basics.

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Paul N. Luvera is the founder of Luvera Law Firm in Seattle. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.

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