Winning a Jury Trial
Winning a jury trial is a complicated affair, but centers around a simple concept: a true story. Whether one is conducting investigation, preparing forensic analysis, drafting legal motions, questioning potential jurors, giving an opening statement, cross-examining government witnesses, introducing defense testimony or giving a closing argument, the thread that binds is the true story. And since there are two stories in a trial, a battle between stories ensues. The more true story must win.
Every trial case requires intense preparation, but the first step in any preparation is to find the story of the case which is simple, just and credible. Credibility is the currency of victory; thus, the lawyer with the more credible story wins. It is that simple. A credible case presentation requires a lot of background work, much like a movie production, and the client is like the movie producer.
A trial attorney is like a movie director. He must pick a story to tell his audience, the jury. He must work out a basic script or concept for the trial presentation in the form of a short paragraph or synopsis, the gist of the case. The gist must include a basic headline or theme: "This case is about an innocent man raped by the system," or "The crooked corporate raiders have made a scape-goat of an innocent man." In a defense of third person case (i.e., mother defends child), the theme could be as simple as "Basic instincts." The theme must have at its core a basic element of truth in justice.
The trial lawyer is able to accomplish this synopsis only after tedious work pouring over the police reports, lab results, conducting legal research and consulting with jury experts and forensic analysts. From this basic synopsis of the case, the groundwork for the opening statement and the closing argument is laid. The case begins to have bones, a skeleton; it begins to have a beginning and an end, but it does not yet have a middle. It still does not have flesh. In the beginning of the case preparation, the lawyer must envision the end, the closing argument.
The middle of the story, the prepration of the presentation of evidence at trial by both sides, is where most of the work comes in. Before trial begins, the trial attorney must, like a movie director, select a cast of characters for the trial. He must think about which persons are most likely to be called by the prosecution, and he must think about which types of defense witnesses will most likely be able to confirm the client's story and give it life. He must, like Spike Lee, be both the director, the script writer, and an actor who tells the story.
First the trial lawyer must look into the prosecution's witnesses and experts; he must begin to prepare for cross-examination. The trial attorney must have honed his skill of conducting effective cross-examination. That is first and foremost. Cross-examination is an art and science on its own. Suffice it to say it requires intense real world practice and experience. Basically cross-examination involves questioning techniques that force the opponent's witness to admit to facts which help the defense, and allows the defense attorney to tell his client's story.
To most effectively prepare for cross-examination, the trial lawyer must employ private investigators to look into potential witnesses and experts, attempting to find facts that will either attack the credibility of the opponent's story or strengthen the crediblity of his client's story. It is a very powerful tool of victory to have the power to claim that the facts that prove the defense were told from the mouths of the prosecution's own witnesses.
Next, the trial attorney must select the appropriate witnesses and experts to tell his client's side of the story. There are those cases where no defense need be put on, because the burden is on the prosecution, and they can't always prove their case. However, this is not the norm. It is far more effective to have a solid defense presentation of own's own.
Once the cast, the witnesses are selected, they must be prepared. They must be able to review the evidence, attend the crime scene, and become familiar with the facts of the case as they see them. Most importantly, the attorney must prepare them for direct and cross-examination. One wise old trial lawyer I know told me the key to preparing defense witnesses was "to prepare them six inches deep on direct examination and six feet deep on cross."
On direct examination, the witness must be prepared in the sense of being made comfortable with the questioning process and the courtroom format. He or she just should be made comfortable enough to tell the story like he or she would if telling the story over cocktails.
However, on cross-examination the defense witness must be prepared to handle jarring and aggressive test questions by the opposing lawyer. This aspect of preparation requires the defense attorney to give "mock crosses" of the witness on a variety of possible topics, so that the witness can learn to answer questions calmly, confidently and courteously (the three C's), without losing any credibility points.
Once the attorney is prepared to examine the government's witnesses, and has prepared his own defense witnesses, the middle of the story is developed, and the skeleton has flesh. The next step for the movie director is to envision a target audience, an ideal jury.
Preparing to select a jury requires the help of a forensic jury consultant, drafting a jury questionaire and the aid of focus groups. The jury consultant assists the trial lawyer in using the synopsis of the story to find what I like to call "fear factors." There are those issues about our story that some people may just flat out hate, dislike or have a prejudice against.
For example, some jurors hate lawyers; some jurors think that if someone is charged, they are probably guilty. So the jury expert helps the attorney identify these "fear factors," feelings people may have which the client should be afraid of. The jury expert also helps the attorney find ways to get people to share these feelings, so they can be de-selected from the jury.
Once the people with the "fear factors" are identified, it is helpful to employ a focus group consisting of people who do not have the "fear factors" to hear the story. This group of people are extremely helpful in assisting the trial attorney in telling the story in the best, most persuasive way possible. Even in the days when my client's couldn't afford a jury consultant, I would tell the story to anyone who would listen, trying to get a better perspective of how to tell the story to the target audience so it would be well received.
Once all these preparations are complete, the movie can be played to the audience. However, it doesn't mean it will go off without a hitch. The trial attorney must file numerous pre-trial and trial motions to set the legal groundwork that would insure that his witnesses and evidence will be presented to the jury. Legal motions also are required to prevent the prosecution from introducing tainted evidence.
Aside from these preparations, the trial attorney must be prepared for the unexpected. A witness may show up late, not show up or a judge can give an adverse ruling. The trial attorney should have contingency plans for many possible unexpected possibilities.