Publications: Go With the Flow for Effective Jury Presentation

You can hear them coming from across the room. The people with the perpetual cloud over their heads. They complain about everything. If they were given an expense-free vacation to a Caribbean Island, they’d complain that the flight was too long and that there wasn’t enough ice in their drinks. Sooner or later, you let these people move on and out of your life. For your own sanity.

Now imagine you are stuck in a chair listening to strangers from Nine to Five for two weeks. You are a juror. And the whiner is not just a person you see once in a while, he/she is the lawyer for one of the parties. You probably see the lawyer as immature, complaining, and even obstructionist. Most jurors do. Sooner or later, because you cannot let the lawyer move on and out of your life, you grow to resent and dislike the lawyer. And his or her case.

Think back on cases you have tried. How many times could you see the jury thinking of you as the whiner?

In a jury trial, you are on stage. From the moment you leave for the courtroom until the moment you return to either home or office. This article will give you an option for responding to the unfair rulings and cheap tricks that are sometimes seen in courtrooms.

In trying a case, there are three rules to remember: (1) life is unfair sometimes, and so are trials; (2) stuff happens; and (3) the measure of the trial lawyer is how effectively he or she responds to those times in a trial when rules (1) and (2) apply.

My suggestion for dealing for unfair times and unfair practices is counter-intuitive. Once you have made your objection, and your record, sometimes it is better to go with the flow than struggle against the current for the rest of the trial.

Judges are human. Judges make mistakes. In one trial in the Southeast, a trial lawyer was defending a large corporation charged with polluting a pristine river. Shortly after the trial began, Plaintiff’s counsel attempted to introduce into evidence a memorandum. The Federal Rules of Evidence provide 23 Exceptions to the Hearsay Rule; the “memorandum” exception is not one of them, but despite Defense counsel’s objections, the “memorandum exception” to the Hearsay Rule became Exception Number 24, and Plaintiffs proceeded to ram into evidence every unfavorable piece of paper ever generated by the Defendant corporation that had any bearing on the subject matter at trial.

These are the kind of rulings that can turn trials on their heads. Lawyers who had prepared hundreds of hours were now hit with a totally unexpected, and inexcusable, ruling that had serious detrimental effects to their client. As the session ended for the day, the non-trial lawyers who had been sitting in the audience as spectators wailed and gnashed their teeth at the unfairness of the ruling—they saw no way to continue with this trial.

The trial lawyer on the other hand, carefully weighed the options, and decided all was not lost. He said simply, “There’s a new exception to the Hearsay Rule.” And he instructed his associates to obtain every memo favorable to the company that bore on the issues in this case and to prepare them for use as exhibits in the Defense case. When it came time for the Defense case, he rammed every one of those favorable memos into evidence, over the Plaintiff’s objections. The judge, consistent with his ruling regarding the “memorandum exception” to the Hearsay Rule, allowed Defendant’s documents in under that same exception. The Defendants were pleased with the end result.

Sometimes, when stuff happens, the lawyer can adapt and minimize the prejudicial effect by using the ruling to his or her advantage. In this case, the Defense attempts to put in the memorandum as an exception to the Hearsay Rule, was a no-lose proposition. If the Court denied the attempt, as hearsay, the Court would be making different rulings for different parties, a clear error. If the Court let the evidence in, as it did, the Defense was able to level the playing field.

Lawyers and clients are human, too. They make mistakes. So do witnesses. Keep in mind, however, that when one of these people makes a mistake, and you jump down their throat in front of a jury, you are sending the wrong signal. First, you are impressing upon the jury that it was a mistake. And, because your stress level is so high, they are likely to take it as a much bigger mistake than it really was. Second, you are undercutting the credibility of your co-counsel, client, or witness, in front of the jury. If you don’t like these people, why should the jury? Third, you are undercutting your own credibility in front of the jury. The treatment of the people who work for you, in a belittling or derogatory manner is inappropriate. To do so in front of the jury is unforgivable.

Finally, opposing counsel is human as well. They make mistakes. And sometimes they make mistakes of the variety that comes when a lot is on the line. As one of my former partners used to say, “ethics from some people can go out the window when enough money is involved.” He was talking about the fact that opposing counsel sometimes cross the line, or trample it, when enough is at stake. For those lawyers, you have to hope they won’t get away with it. And going with the flow does not include going down into the gutter with them. Rather, it means that you should not act in front of the jury as if it is such a big deal, and you should think of ways to try to shine a light on it for both the jury and the judge.

For example, there is the lawyer who says in his closing argument, “I was good enough to not object to my opponent’s closing argument, and I hope he gives me the same courtesy.” This lawyer will then launch into a multitude of improper arguments which are waived if there is no objection. There are a couple of ways to deal with this tactic. The first is to stand up as soon as he says it and inform the court, and the jury, that you will be happy to refrain from objection if he will stay within the bounds of proper argument. This will send a clear signal to the jury and the judge that you are happy to be courteous, but only if the argument is fair.

Second, and particularly if you have the final say, consider limiting your objections where the comments are not critical, and perhaps even if they are, and then telling the jury during your rebuttal something like this: “Ladies and gentlemen, opposing counsel asked me not to object during his/her argument and I provided him/her that courtesy. I did not provide him/her that courtesy because I thought he/she was being fair, or because the arguments he/she made were appropriate and based on the evidence. Instead, because he/she asked me to, I bit my tongue and decided that I would make his or her argument a study of exactly how far he/she thought he/she had to go to win. This is how far he/she had to go.”

Then, walk through the improper statements and effort made by the opposing counsel, pointing out, in a manner the jury can understand, why those arguments were improper. Conclude by stating that you are glad that the opposing counsel went overboard with the final argument because he/she has made it clear that he/she thinks you have to accept every word in order to give him/her the verdict he/she wishes. The smarmy lawyer who plies for no objections will probably not make that argument again.

I agree with David Deehl that we should all work to allow the next generation of lawyers to develop and use the skills needed to allow juries to properly resolve disputes. And I know that the vast majority of students that David Deehl teaches will never use these tactics in a courtroom. But for those who have neither had the benefit of his wisdom, nor the gift of his ethics, I say—be prepared and make them pay for the improper tactics used.

Reprinted with permission. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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