Trying cases is a lost art in the business world. Supposedly 95% of business cases settle prior to trial. That may be so, because I consider 95% of my business law colleagues to be litigators, not trial lawyers: those who exclusively use pleadings, discovery and motions to posture a case for settlement and who have little to no trial experience.
If a reasonable settlement can be achieved, I advise my clients to take it. Trying cases is expensive and uncertain. But if you’re not eager and able to try the case if necessary, how are you going to get the best settlements? Sometimes you need to push away from the bargaining table. If settlement talks didn’t work, refocus. The best trial lawyers use the precious few days before talking to a jury winnowing evidence and honing themes without getting lost in the blizzard of pretrial paperwork.
Courts hold pretrial conferences five to thirty days before trial. A blizzard of paper filings is then due: Trial briefs, motions in limine (to exclude evidence), exhibit and witness lists, jury instructions, joint statement of the case and more. Then there is exhibit review, witness preparation, last gasp settlement talks and more paperwork, perhaps demands of other cases. I’ve listened to opening statements that sound as though the lawyer was up until 4 a.m. writing the first draft. If they’re reading from pages of handwritten notes, I know that’s the case.
Pundits say most jurors have tentatively made up their minds after opening statements. In what other industry would a CEO wing a make or break investor pitch with night-before preparation? Trial lawyers prepare for trial like Steve Jobs preparing to introduce the iMac: relentlessly winnow, prepare and focus prior to that moment, then wow the audience with a short compelling pitch.
Four key techniques distinguish trial lawyers from litigators in crunch time.
- Winnow exhibits. Many trial lawyers instruct an underling to include every exhibit marked at deposition, with additions from a late review of all documents produced, on the exhibit list. This is how 500 exhibits get designated. But why wait until trial to decide which exhibits in this pile you will really show the jury? Jurors can focus on at most a few dozen exhibits. Get a draft of the exhibit list early, then cut. Forcing yourself to cut 500 exhibits down to 250, then 250 down to 125 or less will start focusing your mind on themes, impact and the relatively few hours available to show information to a jury.
- Focus group your case. I know injury lawyers who won’t try a big case without conducting at least one pretrial focus group, but not many business colleagues do this. Jury consultants can help you conduct a half or all-day focus group. Get a colleague to play the attorney for the other side. Each of you prepares and presents a “clopening,” a combination of evidence and argument with visual aids. Then you listen to the “jury” deliberate through closed circuit cameras, debating the evidence and themes and perhaps polling results. Forcing yourself to distill your case to a forty-five-minute talk with a slide focuses the mind, tests themes and elicits reactions. Hopefully you “lose” the focus group by finding out what part of your case you failed to explain well and which of the other side’s themes resonated with the mock jury. If the client won’t pay for a jury consultant, try this with family or whatever group of friends you can pull together.
- Prepare for voir dire. Winning over the jury by the end of opening statement is easier if you have previously identified and excused potential jurors who will likely give you the thumbs down. Canned practice guide questions may be useful up to a point (“Who thinks runaway jury verdicts are big problem in society?”) but too many lawyers don’t go beyond those plus a few hackneyed ways to “condition the jury” to your side of the case. Prepare, discuss and edit questions designed to elicit people’s feelings about case themes well in advance of trial. What questions will elicit biases without sustained objections? Which will get people talking, especially about the other side’s themes? How do I get the other side’s jurors let me know who they are?
- Prepare for opening statement. You have about 120 seconds to say something that will hook the jury. Practice guides recommend short openings of maybe twenty minutes. See California Practice Guide: Civil Trials and Evidence ¶ 6:124. Long cause openings could go an hour. That’s not much time. Opening statement should be the culmination of the above processes. You should have given your opening statement several times before the real deal. You may not find out how much time is allowed until the trial starts; thus, one may need to prepare and rehearse short and long versions. Don’t argue or over sell. Wow the jury in the first two paragraphs with your dynamite evidence, then let them know your other key points in chronological or logical fashion, disclose important weaknesses, end on a high note and sit down. Hopefully your opening statement is so well prepared it was given by memory and memorable.