Last month, Wallace & Graham Partner Mona Lisa Wallace had the opportunity to present to a room of female attorneys at the First Annual NCAJ Women’s Caucus Retreat held in Winston-Salem at the historic Kimpton Cardinal Hotel. Mona Lisa was asked to speak on how to optimize a jury verdict for your client. She loved speaking to accomplished and new female attorneys about her experiences in the courtroom over her 40 years of practice. Below are the highlights of her guidance to these wonderful women:
Prepare for Jury Selection
The jurors are the most important people in the courtroom and the fate of your clients is in their hands. Annually, state courts conduct more than 148,000 jury trials, while federal courts conduct less than 6,000. About 1.5 million people end up serving on a jury--less than one percent of the adult population.
Your goal is to invite potential jurors to tell you how they feel and to expose any biases that they may have concerning the facts of your case. Depending on whether you are in state or federal court, some attorneys may be permitted to personally ask questions of jurors, or you may have to submit questions ahead of the trial for the judge to ask. You can win or lose cases for no reason other than juror bias. On average, jurors in a civil case take only about four hours to reach their verdict.
Your goal is to give them the information that they need to make their deliberations worthwhile and arrive at a just and fair result.
Make Your Opening Your Roadmap
Never underestimate the importance of your opening statement. It is the first opportunity the jury has to hear from you. It is immensely powerful to be able to say, with confidence, in the opening (or during your closing) at trial, that “I expect the Judge will be instructing you at the conclusion of this case,” and then quote or paraphrase what that instruction will be, and then explain to the jury how the evidence on your side of the case proves each of those elements.
The opening statement has to credibly educate the jury on what they will be asked to decide in order to allow them to know and to listen for what the evidence will show which is necessary to prove the elements of your case. In your opening, tell the jury what the other side will say. Predict for them some of the things they are going to hear from the defense attorney after you sit down. If there is a weakness in your case, share it. You do not want a shock to come later on at trial when the other side brings out a fact that you knew was coming but found no credible way to address.
Passion, Preparation, and Credibility
If you do not believe in your client and the claim, then how can you expect the jury to believe in it? You must take a case for the right reasons and create the best opportunity for justice to prevail. The jury can quickly tell if you like your clients and if you are committed to and believe in their case.
Furthermore, you surely want to win (or lose) the case, knowing you have been honest and made your best effort. Be humble in your presentation of the evidence. Be obsessed with the facts, but do not exaggerate. There is no need to exaggerate what is true. Trying cases is hard and stressful. You must have the complete support of your family. Handling a significant case imposes a hardship not only on you and your office but most of all, on those you love the most.
You must discipline your schedule. You must have team members visit the courthouse ahead of time. You want to know the technology offered by the courtroom long before the trial begins.
You Cannot Do It Alone
You may pride yourself on your own individual determination and ability. But in a significant matter, one person no matter how skilled will not be enough. You will need to have a team. It will need to be skilled and well-organized. You will need to have this team not only before trial but even more so during trial.
In order to succeed with representing claimants in litigation, you need friends and lots of them, and people working with you who believe in the case as much as you do. It is important to know when the scope of the case is such that you can handle it entirely in-house, versus when the nature of the matter is such that you should associate co-counsel. Never hesitate to associate co-counsel if it will benefit the client.
Do Not Be Afraid of Losing
“It is hard to fail, but it is worse never to have tried to succeed.” -- Theodore Roosevelt.
If a lawyer tells you she has never lost a case, you can be assured she is having a case of selective memory, or, she is not a lawyer you would want to recommend to a client in need of zealous representation. This is because the nature of the trial process is that it comes with a risk of loss. This is a matter of statistical reality, proven by many studies, and also, a matter of common sense.
Published papers and studies reflect that there is no way around it: the data regarding cases that go to trial reflects a very significant risk of loss for the plaintiff. However, this should not deter you from working hard and taking that risk when you have to do so.
Expect and Plan for Surprises
You should prepare, prepare, prepare, and overprepare because surprises will certainly be coming. My advice is, embrace that uncertainty, and learn to live with it. While so many litigators tend to be “control freaks,” the fact is that many factors at a trial will be out of your control.
The Judge may find that you rub her the wrong way; there might be a jury with a hidden bias; your key witness might grow flustered on the stand; any number of things could happen. Nonetheless, even knowing full well that your side may not obtain a verdict from the jury in its favor, there are times when you must go to trial.
Otherwise, you may not be able to fulfill your ethical duties to your client, and you certainly will not be able to maintain healthy credibility and keep the respect of the defense stakeholders for purposes of the settlement arena.
Strategize the Order of the Presentation of Evidence
You may think that your best witness is your client herself, the plaintiff. However, that is not always so, depending on the circumstances of the case. In a complicated medical case, for example, you may need to open the proceedings by calling your physician expert witness to educate the jury on the complex diagnostic or causation issues involved.
Trying a case is strategic and involves days, weeks, months, and often years of preparation, as well as significant personal sacrifices on the part of the lead counsel and their team. After the preparation is done, the most important thing left to do is to trust in yourself, your team, and your clients. Trust that your preparation and strategizing is enough, and have confidence in yourself as a litigator. Feel proud when your case is in the jury’s hands, and at that point, trust in your jury to give your client a fair verdict.
Do not forget to be humble and thankful to all those who helped you along the way, and to be easy on yourself for rulings or verdicts that do not go your way. Every tried case offers you a valuable learning experience. Do not be afraid to get out there and see what you can do with help, passion, and hard work.
I wish you the best of luck. Thank you for letting me share these tips with you.
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