I recently read that the greatest obstacle to clear persuasive writing is for the author to forget what s/he knows, and write for the eyes of the reader, who likely has no prior knowledge about the subject.
A similar process must be undertaken when evaluating with a client how a jury is likely to see the conduct of the parties at trial.
I often have clients ask me whether, at trial, the jury or judge will see the “truth” as they know it. The clients have lived the underlying controversy. They have packed into their memories many more conversations, thoughts and writings than could ever be admitted into evidence at trial. Their own views of their case may objectively be as close to the “truth” as one can every really know it. However, all of us work to rationalize inconsistencies and improve memory, desiring to always appear correct in the eyes of others. At worst, parties may stubbornly hold views that could be difficult to sell to a neutral observer.
For these reasons, whenever privately assessing with clients the likely outcome of their case, I encourage clients to think like a good persuasive writer. I ask them to forget “the truth” as they think they know it, and imagine how twelve neutral observers, having no initial inclination to believe the plaintiff or the defense, will see the conduct of the parties after a few brief days together in a courtroom. This can be a challenging process.
There may be things the clients experience as “true” that cannot come into evidence. There are cases where the two sides have known one another for years, beyond the particular business transaction in dispute, and over those years have developed firmly held views of one another. However, rules of evidence will bar any statement that “everyone knows” the other side is wrong, impossible or unreasonable. Another common misperception is that, after a dispute erupts and everyone re-reads potentially unclear writings, one’s subjective “understanding” of the meaning or application of these writings cannot come into evidence to explain what they mean. Much potential testimony about what someone said to a witness would be excluded under rules of hearsay.
Once clients understand that rules of evidence will winnow what they can say or show, one must explain the limited time within which they can present their side of the story. In state court, between the judge’s morning calendar, ninety-minute lunches, discussions outside the jury’s presence, the occasional late juror and a typical 4:30 p.m. stop time, parties will be lucky to have five hours of trial time per day. Two days are usually devoted to jury selection, opening statement, closing argument and jury instruction. This means that, in a seven-day jury trial, the parties will divide up to twenty-five hours of testimony between them. The time goes fast. The client must understand that the parties will be under pressure to winnow the number of witnesses, the things each witness will say and the number of exhibits the jury will be shown.
Finally, once the client sees the limited amount of information the jury will hear, the question becomes how the jury will react. All one can do is tailor the trial presentation to elicit the best reaction. Some jurors simply decide whom they like best. To control for this tendency, clients must be prepared to put their best foot forward on the stand, answering questions forthrightly and not becoming unraveled or upset. Hopefully, the more engaged jurors will have paid attention to the testimony and exhibits. For those jurors, the party who articulates a clear theme of the case, one that is not only compelling but rings truly with the evidence, and applies that theme to the key jury instructions, is the most likely to have his or her view of the “truth” adopted.
Practitioners who take their clients through this process are more likely to help their clients find a reasonable settlement, and if the case is tried, mitigate against unrealistic or disappointed expectations.