Bar Journal - June 1, 1999
The Power of Truth: An Honest Attorney's Guide to Winning Jury Trials in a Dishonest World
By: Attorney Stephen D. Easton
This article is excerpted from Stephen D. Easton's new book, How To Win Jury Trials: Building Credibility with Judges and Jurors, published by the American Law Institute-American Bar Association Committee on Continuing Legal Education. The book is available for $83.00 (including shipping and handling) from ALI-ABA, Customer Service Department, 4025 Chestnut Street, Philadelphia, PA 19104-3099; phone number 1-800-CLE-NEWS, ext. 7000; fax number (215) 243-1664; website http://www.ali-aba.org.
There is a vague popular belief that lawyers are necessarily dishonest . . . . Let no young man choosing the law for a calling for a moment yield to the popular belief-resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.
- Abraham Lincoln
They do not like us. The term "they," of course, includes everybody but us. Even our own relatives do not like lawyers. They also do not trust us. They believe we are willing to deceive, spin, manipulate, cover up, intimidate, distort, and just flat out lie to enrich ourselves and benefit our clients.
The unfortunate reality is that "they" are people who sit on juries. As a result, every time you walk into a courtroom on the first day of trial, you are facing a group of people who question your motives and assume that they cannot believe a word you say.
This belief is both common and strong. In a recent study, a jury research firm asked potential jurors if they thought an attorney would lie in court to promote his1 cause. Sixty-two percent of those potential jurors believed it was likely that an attorney would lie to them.2
Much as we hate to admit it, they are often right. Many trial attorneys seem to believe that their duty to zealously represent their clients requires them to be aggressive, fervent, ruthless, and, if necessary, tricky and deceitful. This belief causes them to stretch their otherwise strong points beyond believability, vigorously object to every item of evidence that might hurt them, and fight about every issue, no matter how trivial.
Any profession that suffers from so foul a reputation must, in some way, provoke it.
When jurors see an attorney pursuing this "win at any cost" strategy, they correctly assume the attorney will not let the truth stand in the way of victory. If your opponent engages in these all too common tactics, she is giving you a wonderful opportunity to gain a significant advantage over her.
A trial, after all, is a credibility contest. Look at a trial from a juror's perspective: The two lawyers are trying to establish diametrically opposed propositions. "He is guilty" versus "He is not guilty" or "They should pay" versus "It is not our fault." At least one of the lawyers must be lying, right? Maybe both of them. You know how those lawyers are.
If you can establish that you are the one attorney in the room who should be trusted, it follows that your opponent cannot be trusted. If the jurors believe in you, you will win almost every time, even if the emotional appeal of the case favors your opponent.
Of course, there is no magic wand of credibility that you can simply wave at the start of trial to make yourself believable to jurors. Instead, you have to build credibility slowly, one small but important step at a time. Several of the techniques needed to establish your credibility are somewhat unpleasant, especially when your client is sitting in the chair next to yours. Some seem counterintuitive, because they require "admissions against interest." Furthermore, these techniques require constant attention and sustained effort, because one misstep can irreversibly destroy the credibility you have worked to establish.
ALWAYS TELL THE TRUTH
The first rule of establishing credibility is obvious and easy to state: Never tell a lie. Surprisingly, this rule is rarely followed. During most trials, attorneys tell several lies.
Think about all the untrue statements you have heard from lawyers during trial. Many piously proclaim that "voir dire is just a process attorneys use to pick a fair jury." Whom are we kidding? No attorney really wants a "fair" jury. Do we really think jurors are not smart enough to figure out that we are trying to get a jury that is as biased toward our side of the case as possible? Other classic "little white lies" include: "I only have a few questions for this witness, Your Honor"; "I hate to interrupt (but I have to object)"; and "I am not trying to confuse you with this question, Mr. Witness."
Many would argue that these are harmless little mistruths that are no different than those common in ordinary social situations (like "that was a wonderful meal, Mrs. Mother-In-Law"). "Many" are wrong. You are not in an ordinary social situation. You are in a trial before a group of people who are predisposed to believe that you are willing to deceive them simply because you are a lawyer. Why give them any evidence to support this belief?
You cannot afford to lie about anything. Resolve that every statement that comes from your lips during trial will be completely accurate, even when the truth causes you some temporary discomfort.
When faced with a situation that seems to call for a "little white lie" during trial, always consider the option, vastly under used by attorneys, of saying nothing. If this option is not available, tell the truth.
The most powerful weapon we have - indeed the most powerful weapon that any people can have - is truth. If we ever find ourselves in a position where we cannot tell the truth, or where we feel that the telling will injure us, we will have sacrificed that most powerful weapon.
- Dwight Eisenhower
PREPARE, PREPARE, PREPARE
Honesty alone is not credibility. A perfectly honest person who knows little or nothing about a subject has little credibility about that subject. Credibility requires equal parts of both honesty and knowledge.
Integrity without knowledge is weak and useless, and knowledge without integrity is dangerous and dreadful.
- Samuel Johnson
Before every trial, you should vow to know more about the case than anyone else in the courtroom, including the parties, the expert witnesses, the judge and, most important, your opponent. Through your opening statement, examination of witnesses, and closing argument, you need to show the jurors that you are the one authoritative source they can rely upon to lead them to a just verdict.
Mastering the facts, the technical concepts, and the legal issues in a case does not come easily. Before the trial begins, you should prepare, prepare, prepare! There is no shortcut. Every statement you make during trial must be correct, and this can happen only when your preparation has been exhaustive. Nothing says "this lawyer cannot be believed" like a factual mistake.
If you know the case backwards and forwards, you can demonstrate your knowledge to the jurors as the trial progresses without ever being obnoxious. If you do, the jurors will believe you when you tell them, in final argument, that a verdict against your client would be an injustice.
"YA GOTTA BELIEVE"
You cannot be an effective advocate if you do not believe, in your gut, that your client's position is just, correct, and fair. If you do not believe that a verdict against your client would be a manifest injustice, you are in serious trouble.
This does not mean you should believe that your client is perfect or that he made no mistakes. But if you do not believe your client should and must win the trial, you should find someone else to try the case or urge your client to settle. The jurors need to see and feel the strength of your conviction.
I have heard an experienced counsellor say that he never feared the effect upon a jury of a lawyer who does not believe in his heart that his client ought to have a verdict. If he does not believe it, his unbelief will appear to the jury, despite all his protestations, and will become their unbelief.
- Ralph Waldo Emerson
ADMIT THE WEAKNESSES IN YOUR CASE
Despite the strength of your conviction, you have to admit the weaknesses of your case. No case that reaches a jury is perfect. If your opponent did not have something to talk about, you would not be in trial.
The best way to defuse your opponent's strengths is simply to admit them. Once you concede a point, your opponent looks silly if she continues to press it. At the same time, your willingness to admit the warts in your case shows the jurors they can trust your judgment about the real issues in the case.
FIGHT BATTLES YOU CAN WIN
The most important battle in any trial is the battle over where the war will be fought. Never let your opponent define the terms of the debate. Focus the jurors' attention on an issue you can win, and win decisively.
Don't take the wrong side of an argument just because your opponent has taken the right side.
- Oráculo Manual
In any lawsuit, there are several potential issues. In a civil or criminal suit, there are usually about five elements of a prima facie case. Each of those five elements presents a possible battleground at trial. Pick the best of these issues, and fight hard on this issue. Offer no resistance on other issues. By conceding these other issues and focusing on the issue you have chosen, you are increasing your credibility in the eyes of the jurors. You are also sending a direct message identifying the real issue in the trial.
This can be a tough rule to follow. Attorneys are proud of their willingness to fight about any issue. Many a trial attorney has fallen into the trap of taking on the opponent on issues that cannot be won. Unfortunately, once you engage the battle on an issue, it is impossible to withdraw gracefully. When you tell the jurors, in closing argument, that the issue is really not critical, you are inviting your opponent to ask the jurors why you have spent the last week fighting over this issue.
If your opponent makes the mistake of fighting on an issue she should have conceded, take full advantage of this mistake! Present the overwhelming evidence in your favor on this issue. Emphasize it in your final argument.
BE ORGANIZED (OR AT LEAST LOOK ORGANIZED)
Think of the many presentations you have heard over the course of your education and career. As a rule, you have tended to believe those who make organized presentations more than those who are disorganized. Organization implies that the presenter has thought through the material, discarded some initially appealing points after further consideration, and come to a well-reasoned conclusion.
Strive to be organized, if possible. For some reason, though, many trial attorneys are simply not organized people. There is something about the personalities of those of us who are attracted to trial work that seems to be inconsistent with neatness and organization. If you are not organized, recognize this shortcoming. Turn the responsibility for keeping the case organized over to your second chair or your legal assistant.
INSTRUCT EVERY WITNESS TO TELL THE TRUTH
Every time you meet with a witness to prepare for testimony, you should beat one phrase into the witness's head: Tell the truth! You should say this so often that the witness thinks you have a screw loose. About this point, you do! You should show the witness that you mean this, by demanding truthful, not tricky, answers to questions that you cover while preparing him for his testimony.
Your case will be presented largely through witnesses. If the witnesses are not credible, you have no chance of establishing your own credibility. Jurors see right through witnesses who are trying to help the case with cute, incomplete, or otherwise tricky answers. Very few people are good at lying or attempting to deceive through incomplete answers. Tell your witnesses that, even if they are among the very few people who can lie with a straight face, your own reaction will probably give them away!
Help your witnesses establish confidence through your insistence on telling the truth. Let them know that telling the truth will not get them into trouble, regardless of the antics of opposing counsel.
DRESS APPROPRIATELY AND NEATLY
Like it or not, Americans make many judgments based upon appearance. Dress neatly, in a manner appropriate with the fact that you are trying a case in a court of law.
Although it is important not to overdress and thereby distance yourself from the jurors, underdressing is also dangerous because it is a type of lie. If you are representing a large corporation or a well-known physician, wearing a tattered sport coat instead of a suit will look phony.
Jurors, like all other human beings, tend to favor the people they like. Consequently, to be effective in the courtroom, you must be likeable.
In most cases, you will not be liked at the start of trial. You are, after all, a lawyer. Furthermore, you may be representing a person accused of a monstrous crime or a "deep pocketed" corporation sued by a horribly injured, fire, or allegedly defamed plaintiff.
Work to win over the jurors. Keep the case interesting. Be aware that the trial is a tremendous imposition upon the time of the jurors, and work to get the case to them as soon as possible. If you repeat questions, beat dead horses, and otherwise bore the jurors, they will stop listening to you. If you keep the evidence and your arguments interesting, the jurors will pay more attention to you. Do your best to keep the juror's attention, by using a variety of types of evidence, varying your speaking style, and emphasizing the important parts of the case.
On occasion, you will be forced to present relatively boring material in order to meet your burden of proof on an element of your case. If this problem cannot be avoided, warn the jurors about this portion of your evidence in your opening statement and let them know you have no choice. If possible, without being blatant, blame your opponent for failing to stipulate to these matters.
Keep your ego hidden. Be courteous to the judge, to the court personnel, to your staff, and to your opponents. Show the jurors your personality. Use self-deprecating humor (while being careful not to overdo it).
Be yourself! If you cannot be yourself and be likeable, practice in an area that does not require a winning personality. You will almost certainly make more money than you would as a trial attorney.
HIRE EXPERTS WITH INTEGRITY
In many cases, the most important witnesses are experts. More than any other witnesses, experts are a reflection of you. After all, you choose them.
Unfortunately, the world of experts is inhabited by many professional witnesses who are willing to hire themselves out to say almost whatever an attorney wants them to say. Never hire these experts. Instead, hire actual experts who have the integrity to tell you if your case does not have merit.
DO NOT BLUFF
The heat of battle causes lawyers to do more than tell little white lies. When we are pressed into a corner during trial, we are tempted to make statements that we may or may not be able to back up. Examples include: "I am sure I can find plenty of case law supporting my position on this point, Your Honor" and "It is a well known scientific principle that... "
Resist the temptation to make any statement you are not sure you can back up. If you make such a statement, your opponent will certainly check it out and will gladly make you eat your words if you turn out to be wrong. Unfortunately, you will be eating more than just your words. You will also be eating up any credibility you had gained to that point in the trial.
AVOID SENDING THE WRONG SIGNALS "OFF THE RECORD"
From the time you head toward the courtroom on the first day of trial until the verdict is read, jurors will be watching you. Be careful about the messages you send.
The jurors will watch how you interact with other people during the trial. Treat the judge, the witnesses, and the other members of your trial team with courtesy and respect.
If possible, do not prepare your witnesses in the courthouse, where the jurors might see you. There is nothing wrong with preparing your witnesses. It might be malpractice not to prepare them. Nonetheless, jurors might get the wrong impression if they see you doing it. Remember that they are inherently suspicious of lawyers. It is a short logical leap for a juror to conclude that you are putting words into the mouth of a witness.
FORGET ABOUT FALSE FLATTERY
Somewhere the notion got started that trial attorneys are required to tell jurors that their service on the jury is a sacrifice of untold proportions and that the attorneys and their clients will be eternally grateful to them for their attention. Jurors recognize this obviously overstated praise for what it is: A phony attempt to generate bias in favor of the flatterer. Be courteous and respectful, but forget the apple polishing. A brief "thank you for your attention" during final argument is sufficient.
AVOID ASKING YOUR WITNESSES LEADING QUESTIONS
Despite the evidentiary doctrine that theoretically limits the practice, you can generally ask leading questions if you so desire. Except as a timesaving device on preliminary matters such as a witness's background, though, you should avoid using leading questions with your witnesses.
Jurors are impressed by a witness who responds to an open-ended question by reciting relevant details. Detail is often interpreted as accuracy. When the detail is recited in the question by the attorney and simply adopted by the witness with a "yes" answer, though, jurors assume the attorney is putting words in the witness's mouth. Prepare your witness to answer open-ended questions.
Honest emotion is a very powerful force in the courtroom. [Fake emotion, on the other hand, always backfires.] Never concede all emotional power to your opponent.
Regardless of whether you are representing a plaintiff, a civil defendant, the government, or a criminal defendant, there is a great deal for you to be passionate about in trial. You should not be in court unless you believe your opponent is seeking an unjust verdict against your client.
As a trial attorney, you have dedicated your life to fighting injustice. The very possibility of an injustice (not just a loss, but the injustice of a loss) should keep you awake at night. Let the jurors see how you feel!
DO NOT HIDE THE BALL ON DISCOVERY
Discovery is ripe with opportunities to play games. Cleverly narrow interpretations of discovery requests can often give you the chance to avoid disclosing that one key document or piece of information that you would prefer not to give to your opponent.
Unfortunately, if you play this game, you will spend a lot of time worrying about whether your opponent has independently acquired the document or information. You will also spend a lot of trial preparation time working with your witnesses to avoid disclosure during trial.
During trial, you cannot afford to look nervous about such matters. Jurors might pick up on the nervousness you display every time your opponent or a witness wanders near the undisclosed matter. Instead, disclose the matter and prepare to deal with it.
Legendary football coach Vince Lombardi reportedly said, "Winning isn't everything. It's the only thing."3 In the courtroom, credibility is not everything, it is the only thing. Without it, you cannot hope to win. With it, you will usually win, even when the odds and emotional appeals are against you. Credibility can be secured only through tireless and difficult effort, but the prize is well worth the sacrifice.
Although I am not eager to offend anyone, the verbiage of "he/she" or "he or she" creates a burden that I am unwilling to force upon you. Therefore, I have chosen "he" for the attorney of first reference, for clients, for legal assistants, and for lay witnesses, and "she" for judges, jurors, opposing counsel, and expert witnesses. This seems like a roughly equivalent, though undoubtedly still somewhat objectionable, division of labor among pronouns.
Jeanne J. Fleming and Leonard Schwarz, "Juror Opinion Survey Reveals Obstacles for Litigators," INSIDE LITIGATION 21, at 21 (December 1991) (Vol. 5, No. 12). On the plus side, ten percent believed it was "very unlikely" that an attorney would lie. This should give us little comfort, though. Public opinion experts say that almost every survey will show ten percent of the people stating that the moon is made of cheese, that the earth is flat, or that some other equally implausible notion is correct.
See John Bartlett, Familiar Quotations 388 (Justin Kaplan ed., 16th ed. 1992) (noting that this phrase was recalled on Lombardi's death). This phrase actually has been credited to another coach, Vanderbilt's Red Sanders, who first used it in 1953. See James B. Simpson, Simpson's Contemporary Quotations 783 (1988). Lombardi's actual contribution was, "Winning isn't everything, but wanting to win is." Id. At 783 n.10.
Attorney Stephen D. Easton is an Associate Professor at University of Missouri-Columbia School of Law, Columbia, Missouri.