August 29, 2023

Podcast - The Five Most Common Faults of Trial Lawyers

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small focuses on the five most common faults of trial lawyers. Mr. Small acknowledges that every trial is different, but steering clear of the five faults shared in this episode will help trial lawyers remember what they need to accomplish and who they need to persuade, ultimately setting them up for success in the courtroom.

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Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

When judges and lawyers, in those jurisdictions that allow it, talk to jurors after a trial, it can be a fascinating, surprising and enlightening experience. Many jurors, with a little encouragement, will offer their views about the case — what worked, what didn't and how it might have been done differently. Many lawyers might be surprised by the relative consistency of their answers.

Every trial, of course, has its own twists and turns, and every jury is different. Still, jurors as a whole tend to complain about the same broad issues over and over. Here are the five most common types of complaints, and the five most common faults, of trial lawyers.

1. Lawyers Are Disorganized

Too often, lawyers make rambling arguments that sound like they were made up on the spot. They fumble with their questions, they can't locate exhibits, they can't locate deposition pages. With each sign of disorganization, the message the attorney sends is, "I don't care enough to be prepared!" And to a jury that means, "I don't care enough about you."

Careful organization and preparation does not just improve the technical presentation of your case, it also improves your relationship with the people you are trying to persuade.

2. Lawyers Waste Time

The time of jurors, like all people, is precious. Their attention spans are limited. If you waste their time, they won't like it, and they may well just stop listening. Too many lawyers don't take the trouble to simplify their presentation. They ask too many questions. They talk too much. They allow too many gaps and pauses in the process.

Sometimes this is the result of over-preparation — getting so wrapped up in a case that every little detail seems important. But when everything is important, nothing is important. Sometimes it's under-preparation — not taking the time to sort through the facts to determine which details are not important. Either way, the result can seriously undermine your case.

3. Lawyers Don't Show the Jury the Evidence

By the time the case gets to trial, you've lived with the documents or other pieces of evidence for months, or years. It's easy to forget that no one else has. Too often, lawyers get an exhibit admitted, sometimes with great effort, but then in their moment of triumph, they leave the exhibit on the witness stand or counsel table, without giving the jury the chance to see it.

Make sure you give the jury a real opportunity to see, or touch, or hear, and understand the evidence. That may take time. Attorneys frequently display documents on a screen, but they often use too many and flash them up and down too quickly. It looks more like a light show than a trial.

If the jury doesn't have a chance to read and understand a document, it may as well not be in evidence at all.

4. Lawyers Confuse the Jury

Attorneys are sometimes surprised by questions from a deliberating jury that show confusion over basic facts or issues. Generally, that's not the jury's fault, it's the lawyer's fault. It's your job to make sure that your presentation is clear and simple. Lawyers often bury the jury in unnecessary detail. They go for quantity, not quality. It doesn't work.

In fact, the trial lawyer's challenge is just the opposite: to reduce the clutter and the noise, and to find the best ways to make the presentation of the evidence as clear and simple as possible.

5. Lawyers Don't Explain the Evidence to the Jury

It's not enough to just get evidence admitted. You have to show what is it, what it means, how it fits into the story. Some lawyers seem pleased with themselves (or maybe just relieved) to get everything admitted and don't use charts or other visual aids to help explain it. The pieces of the puzzle have to be put together, or they won't have any impact.

Prosecuting a money laundering trial some years ago, I made a simple blowup chart tracking the pot of money being broken up into multiple checks, then recombined into a single account. It made the structuring effort dramatically clear. More than that, though, the visual web of money being broken up and recombined became the visual manifestation of the "web of deceit" theme of the whole case.

Of course, the details are usually important, too. It's not enough to get the broader issues right. A lawyer can easily lose a case for a technical reason that has nothing to do with juror impatience or confusion.

But trial lawyers need to keep in mind what they're trying to accomplish and who they're trying to persuade. Lift your eyes up from the piles of paper stacked on your table, and consider your audience carefully. Respect their time, recognize their needs, help them understand the case and try to make yourself an object of their respect.

Most importantly, keep your case as clear, simple and organized as you possibly can.

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