Litigating is a mix of science and art. It takes the right amount of craft, knowledge, intelligence, evidence and personality to get the people in the box to see things your way. Sometimes it’s easier to do in some areas than in others; for example, if your case has very strong evidence, other elements can be weaker.
So what happened to you in that decent but complicated, somewhat dry case, in which you simply could not convince your jurors that your client was in the right? There could be several reasons that jurors chose the other side. Here are a few that litigators can improve upon before their next trial.
1) You didn’t keep your composure. Trial attorneys know how aggravating it can be to be up against a snarky, unprofessional attorney or a tough judge that is making a terrible ruling. But jurors expect and appreciate lawyers who can remain calm and professional no matter what happens. Angry outbursts make for great movie material, but they almost always hurt your credibility with jurors.
2) You treated jurors like they were dumb. We trial consultants hear this a lot. Jurors recognize that they are not experts in the subject at trial, but they want to do the right thing and understand what’s going on. Talking down to them backfires. It is possible to simplify complex messages and arguments in a way that does not insult jurors. Using simple analogies that are disproportionately silly is demeaning to the jury.
3) Your communication style is unpleasant. The best trial attorneys I have ever worked with are naturally pleasant people. They are engaging, funny, humble and helpful. The cornerstone of persuading others is to start out with them wanting to listen to you. If jurors bristle at your negativity or don’t feel even a casual rapport with you, your battle is that much harder. Think about the people you most enjoying speaking with at a cocktail party. They aren’t the jerks who are arrogant or mean; they are the folks who are easy to connect with. Be that trial lawyer and half the battle is won.
4) Your client has a bad reputation. Unfortunately, as a litigator, you don’t always get to choose your clients. Jurors walk into the courtroom with perceptions about specific industries or companies, and those can be difficult to change. In post-trial interviews, jurors make comments about how an attorney was very good but they just couldn’t bring themselves to find for the “bad defendant.” This is a public relations issue that starts well before trial, but if it’s what you are working with, it is important to skillfully acknowledge a company’s shortcomings while separating the issue at hand. Of course, it helps to have jurors who are similarly capable of such separation. It isn’t easy, but it isn’t impossible either. Keep the jurors focused and engaged and the obstacle can be minimized.
5) You failed to make complicated information accessible. Not every case involves understandable law or technology. Given the choice, jurors would prefer to hear a simple employment case to a patent case involving obscure digital code, as people have a connection to employment and can easily work with most of those concepts. IP, securities and other cases with complex law can be challenging and frustrating to jurors. If they cannot understand your case, they can’t find for you (at least on purpose). Litigators who fail to understand their case from a layperson’s perspective will get this wrong every time. Experts need to be prepped to be professorial and helpful. At a minimum, test them in front of the firm’s staff to see how well they come across. Did some of the staff members understand them? Was your explanation of the case effective? Ask non-lawyers around you how comprehensible your case is.
Before your next trial, check yourself on these five points. And if you feel like you’re lacking in any area, get help from a professional in that arena.
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.