Jury trials don’t simply happen. Trial presentations are the product of months of preparation and planning that some refer to as “scripting a trial.” In a previous article, I described the process of creating witness outlines as the foundation for all other trial preparation. This process necessarily forces a trial attorney to identify exhibits that will be introduced through a particular witness and, in some instances, to pinpoint impeachment material.
Once you’ve done the hard work of creating witness outlines, it’s time to turn your attention to how the evidence will be presented. While this phase of trial preparation is challenging, it’s the phase when you can flex your creative muscle. Consider the following steps to take after first creating witness outlines.
1. Develop a Case Theme
A great case theme is the DNA that links all the evidence into one persuasive word or phrase. Frequently that word or phrase will sum up the bad motives of the opponent: e.g. “retaliation”, “intimidation”, or “profits over people.” A good case theme will emotionally connect the facts to your story. There are many good resources on theme development. My favorite is “Case Framing” by Mark Mandell. His paradigm calls on trial attorneys to develop “I-Can’t-Get-Over” issues that are the components of an overall “Case Frame.” These points are “echoed” throughout the trial. Don’t be afraid to talk to friends and colleagues as you search for the theme that fits your case. They may be your best source for ideas.
2. Create Demonstrative Exhibits
Always keep in mind that you are asking jurors who know nothing about your case to absorb tremendous amounts of technical information quickly. Your job is to simplify the evidence. The saying, “A picture’s worth a thousand words,” is applicable here. If you are going to try a personal injury case, show the accident scene. In all but the simplest cases, consider a timeline to tell your client’s story. Anatomical charts or more sophisticated medical videos can help jurors understand the basis for asking for a substantial damage award. Think creatively.
3. Conduct a Focus Group
Trial lawyers and their clients live inside a bubble that can dangerously skew one away from an objective analysis of the strengths and weaknesses. Focus groups are the most effective way to burst that bubble and see the case through the eyes of real life juror peers. There are many ways to do this. Regardless, it’s critically important to utilize opposition role play to make sure the exercise is two-sided. Be sure to save substantial time in the exercise for juror debriefing. The mock jurors will let you know if your case theme and demonstrative exhibits resonate or fall flat.
4. Draft an Opening Statement and Closing Argument Outline
At this point, you’ve harvested feedback from your focus group, and have mapped out the direct and cross-examination of the witnesses. Now you can start putting the arguments together. Of course, we all learned in law school that opening statements are not intended to be argument per se, but rather a statement of what the evidence is expected to show. Nonetheless, it is equally clear that an effective opening statement must persuade the jury that the facts will support your theory and theme of the case.
The opening statement should orbit around the theme. This is the time to use the accident-scene photo or timeline to help jurors begin to assimilate the facts using your theme as the filter. In addition to opening, you must at least anticipate the closing argument. At closing, you must return to your theme, but must also address your opponent’s theme and how it misses the mark. You’ve got to develop a comeback that ends the debate as to the issues that matter. My preference is to develop an outline that is subject to revision depending on evidentiary rulings, directed verdicts or unexpected changes in testimony. Your closing argument outline is a place to write down pithy witness statements or observations about demeanor. Be sure to spend time talking about the verdict form and any jury instructions that matter.
5. Prepare for Voir Dire
After having done all the previous work, you are positioned to think about your “bad juror” profile. Remember that voir dire is not about selecting “good jurors,” it’s about deselecting the ones that can harm your case. Don’t forget about the law of voir dire including such issues as Batson challenges. (For more about the procedural law of trial, check out my quick reference guide: GlanceCharts Quick Guide to Federal Civil Procedure.) Use the focus group as a place to practice voir dire if you don’t feel at ease with this phase of the trial.
Obviously, there is more to trial preparation than this, but these big picture items must be addressed. The underlying message of these articles is this: don’t wait until a week or two before trial to get started. Trial scripting should be part of what you do early in the case, as you hone your winning edge.