Podcast - At Trial, Less Is More
In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small goes in-depth about how courtroom presentations need to be direct in their approach and how to avoid being dull, complex and confusing. This episode also discusses the importance of maintaining a balance between being direct and providing enough detail to explain the argument. Ultimately, Mr. Small says that approaches like these are not just about settling the record but about convincing the judge and winning.
Listen to more episodes of The Trial Lawyer's Handbook here.
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.
Dan Small: Good trial lawyers necessarily immerse themselves in the details of their cases. And they should, and they have to. But as trial approaches, the process has to be reversed. Just because you spend a lot of time learning something or developing it in discovery, does not mean that it's important.
In the words of the minimalist architect Ludwig Mies, borrowed apparently from the poet Robert Browning, "Less is more." To Mies, the phrase meant producing the greatest effect with the least means. To the trial lawyer, it means more or less the same thing. To maximize the impact of your most important evidence and arguments, minimize everything else.
I learned this lesson early as a brand-new lawyer trying to find my way around the halls of my first employer, the U.S. Department of Justice in Washington. I wangled an assignment to the trial team of Bert Lance, the former U.S. budget director under his close friend, then President Jimmy Carter. Lance was prosecuted in his hometown of Atlanta, Georgia, under a complex bank fraud indictment. And that was the problem. I didn't join the team until after the indictment, so who knows what the great lawyers on the team were thinking. But I know from other experiences how this goes. Everyone on the team wants to contribute. Everyone thinks their piece is important, and no one wants to say no. No one wants to leave out that one critical piece. So it all goes in. All of it. And instead of a simple, powerful, false statement case in Chicago, which they could have brought, it ended up an overly complex bank fraud case in Lance's hometown of Atlanta. Against the simple, good old boy defense, the result, hung jury.
The need to eliminate unnecessary detail and noise applies to everything. It applies to everything that happens at trial. Use fewer words, ask fewer questions, call fewer witnesses and offer fewer exhibits. This does not mean lightly skipping over important points or eliminating all detail. If it matters, leave it in. Otherwise, get rid of it. It isn't enough to get rid of the things that are completely unnecessary. You also have to eliminate things that are only marginally relevant or that you don't really need to win. That's harder to do than eliminating mere noise. And it runs counter to the instincts of many lawyers, who tend to be cautious, thorough and meticulous. While those are good qualities in a number of contexts, in the courtroom, they can result in a presentation that is deadly dull, complex and confusing.
Consider, for example, why so many trials are so much longer than they need to be.
Why do lawyers introduce so many unnecessary exhibits and ask so many unnecessary questions? Why do they obscure their best arguments with marginal or even trivial ones? If you ask, you often get some version of the following:
Well, I wanted to make sure the record was complete. I wanted to make sure that I had covered everything.
Really?
The reality is you never know what the jury might latch onto, or what the court of appeals might think is important. But if your object is to persuade people, adding things simply "for the record" is usually a bad idea. You have to make choices about what to put in and what to leave out. You can't put in everything or you will obscure your message, bore the jury and exasperate the judge. Yes, that involves difficult choices. But you aren't there to cover all your bases. You are there to win.
Sometimes, of course, you do have to make sure the record is complete. As a prosecutor, I once forgot to ask my witnesses about a relatively minor but essential element of the crime: the interstate commerce nexus. It had never been an issue in the case. The evidence on it was clear. But I had to ask, and I had to whisper those magic words: "Your Honor, I offer exhibit six." I forgot to do it. On a motion for directed verdict, only a fleeting reference discovered by chance in an exhibit entered for another purpose saved my case.
Sometimes, too, the details are critical and they take time to develop. For example, if the case turns on scientific and forensic evidence found at a crime scene, you want to be very thorough indeed. And if the point is truly important, you want to make sure that it's sunk in. Too often, though, the lawyer is simply piling on evidence for no real purpose. If all you're doing is trying to establish that a meeting took place, you don't need to offer every conceivably related document: the email suggesting the meeting, the email agreeing to the meeting, the email setting the time of the meeting, the email ordering donuts for the meeting. Just ask the witness, "Was there a meeting?" If the witness says yes, that may be all you need.
There's a great scene in the 2015 Ridley Scott movie "The Martian," where Matt Damon's astronaut, stranded on Mars, has to try to get off the planet in the landing craft. But the landing craft wasn't meant for that, and it's too heavy to launch. So piece by piece, he strips it of everything that can be removed. You name it, everything all getting thrown off the landing craft until it's finally light enough to fly and to send him off to be rescued. Think of yourself as Matt Damon eliminating all that excess weight. Ounce by ounce, piece by piece, to make your case fly faster and more efficiently. Every ounce that isn't necessary is just weighing you down. Don't let it happen.