As a seasoned jury consultant, I’ve become familiar with client tendencies in working up a trial. No matter what type of case I handle, I see the same patterns emerge, time and time again.
Here’s a countdown of the 10 most common. Which numbers apply to you?
10) Attorneys grossly overestimate their witnesses’ abilities or impact on the case, and/or throw them under the bus when a case goes south. Witnesses are easy scapegoats.
9) Too little thought and preparation go into the actual trial, e.g., voir dire, jury selection, trial procedures and opening statements. Many teams are unprepared for what happens when trial actually starts. Few, it seems, think a trial actually will start.
8) Calm leaders have the most organized and efficient trial teams. Yellers and screamers (we all know them!) have frazzled, edgy and dysfunctional squads. Which team ultimately performs better at trial? You guessed it: the organized and efficient. Dysfunctional teams make mistakes, suffer from stress-induced illnesses, and are just generally more unpleasant and less productive. Unhitch your wagon from the yellers and screamers who either have anger management problems or are narcissistic control freaks. You will be more successful for it.
7) War room set-up matters. Too little attention is paid to workspace, flow and efficiencies. Most teams commandeer a few hotel rooms and turn them into a buzzing combination of copy centers, libraries and cafeterias. No one can work to their potential in those ill-defined spaces. Good technology (and support), defined quiet versus collaborative spaces, and organization will make the difference between a chaotic trial team and one that operates with machine-like precision. Avoid the 2 a.m. search for that final draft timeline. (Hint: it’s probably near the licorice.)
6) Attorneys love depositions far more than jurors. Reading in depositions at trial should be avoided at all costs.
5) Case connections that are obvious and important to trial attorneys are often lost on jurors. While jurors work hard and often do the right thing, they usually get there in different ways than attorneys. For example, trial lawyers often rely on one or two key points in depositions or examinations that get buried in a trial. “When Mr. Witness said that, he really blew the case wide open.” Jurors don’t always make the connection to the cause of action or see it is an “a-ha!” moment. Be explicit and help jurors get to the same place.
4) The trial preparation period requires a clear calendar. There should be deadlines in all stages of preparation (as well as assignments), and the preparation should be divided into at least three stages: pre-trial, crunch time and trial. It eases anxiety and manages expectations of everyone on the team.
3) When a trial is in a team’s hometown, less work gets done. Everyone wants to go home at the end of the day (who can blame them?), but the work sometimes suffers. Develop a rotating system of lawyers who must stay onsite in the war room (or work late at the office) so that everyone suffers equally during the critical, crunch times. Designate a senior decision-maker for those occasions.
2) Attorneys (still) underutilize technology. Trials of a certain size demand technology. Graphics, depositions and exhibits should be computerized. There also should be a designated “hot seat” technician for the actual trial so an attorney does not have to take a crash course on the various computer systems designed for trial. Are the disasters in the courtroom worth the few thousand-dollar savings in the course of a trial?
1) Consultants are called too late. I received a call late last year on a multi-million-dollar fraud case 30 days before trial. The summary judgment motion I read prior to talking to the client about the potential course of action was just shy of 250 pages. As consultants, it’s difficult to be highly effective at our jobs if we must jump into a complex matter weeks before trial because “no one thought it would actually go.” Better than nothing, sure, but the service lacks valuable assistance we could have offered as the story and strategies developed early on in the process.
Trial preparation is serious business. Some of the patterns I see are unhealthy (yellers, disorganization), while some are perhaps neutral in the end (witnesses as scapegoats or hometown “leave early syndrome”).
Over the years, one thing has become absolutely clear: The teams who can take a holistic view of the process and plan accordingly enjoy superior results as compared to those who try to prepare at the last minute for a trial that was not supposed to happen.
Julie Campanini is the founder and principal at Trial Insights. She can be reached at Julie@trialinsights.com. A version of this column originally appeared in Rhode Island Lawyers Weekly, sister publication to The Daily Record.