AHEAD OF THE CURVE: THREE POSITIVE CHOICES ATTORNEYS CAN MAKE TO IMPROVE OUTCOMES
Updated: Jul 26, 2021
Spoken word version available at The Advantage by Tsongas podcast-Ep.1
I was listening to an episode of This American Life entitled “Choosing Wrong.” The theme of the show explored the repeated poor choices many of us make when a better choice is available. The podcast featured Alain de Botton describing the large percentage of the population who choose wrong spouses. Malcom Gladwell discussed how the “granny-style” free throw is clearly superior but virtually no one uses it, as well as how football coaches punt when they could win two more games each year in a 16 game season simply “going for it” on fourth down. There’s more but I haven’t listened to it yet because I was compelled to wonder if there were similar wrong choices in a litigation setting. The result of my contemplation is this short list of three choices that are not always made but could greatly improve trial outcomes.
Choice #1 – Craft and Execute a Deliberate Strategy Early I recently spoke with a trial lawyer who put his finger on an all too common occurrence. He exasperatedly stated, “By the time we were done with discovery, the case was basically determined. The other side went in with a strategy before discovery began. We went in with a shotgun approach, relying on our experience. We never had a chance.” The other side “won” the case in discovery. They crafted a story, discovered it, and presented it. It got me thinking about something Bruce Boyd and I wrote a few years back entitled, “Persuasion Starts with Strategy.”
“One of the benefits of being an experienced trial attorney is that many of the skills and tactics employed throughout litigation become second nature. However, it is precisely this level of comfort that can, at times, direct your attention to the long and complex list of items that must be addressed in any litigation process without first establishing a unified strategic vision for the case. Oddly, it is experience—not inexperience—that appears to drive this behavior. It is the sense that one can handle each issue as it comes that leads to an early focus on details and tactics. And it is precisely this focus that can ultimately contribute to an adverse outcome in a trial.”
To put this succinctly – if you have not considered early in the litigation lifecycle what outcome you are trying to obtain, who your audience is, and where you want your audience to focus their attention, your adversary most likely has an advantage over you. Chart the course and then go discover it. Make the choice to control the themes, language, and strategy throughout the litigation process.
Choice #2 – Start Your Opening with Your Primary Theme In 2015, the 12 second average attention span dropped to 8 seconds. Yes, sadly, there are non-humans that have better attention spans now, such as goldfish. You have a very short period of time to create the overall narrative framework for your fact finder. Yet, too often the choice is made to start the opening statement with something like, “Good morning, it’s an honor to speak to you today. As you know, my name is John Doe and it is my pleasure to….” The pens go down, eyes go down, and your window to provide the essential context for information and persuasion has closed. Yes, every once in a while you will hear, “Your honor, this is a case about shared responsibility,” or “Ladies and Gentlemen, you are about to hear a case about a man just trying to save his family.” However, if you randomly walk into the courthouse to hear the start of a hearing to a judge or a closing argument to a jury, you can hear minutes of salutations and pleasantries.
You don’t have to introduce yourself – you have already been introduced. Instead, choose a strong, declarative statement that will capture the jury’s attention and earn the right to keep their attention by a strong, germane, meaningful articulation of your position. This is especially critical for the defense, when one has to alter the narrative framework from the one the plaintiff has worked so hard to establish. Present the “headline” of your case, the central idea–much like the short description of the book on the book jacket. Then step back and reintroduce yourself, your team, your client. Start with substance, and then move to the important, but perfunctory remarks once you’ve already captured their attention.
Choice #3 – Focus on Identifying Strikes Instead of Selling Your Case in Voir Dire Scientific Jury Selection is no longer new. There are certain cold, hard facts that are debated as if they are, well, debatable (yes, anything is debatable, but you get the point). One of these key, rarely disputed issues is that you cannot actually “pick” your jury, you can only kick people out of the venire. Because you can only remove and not add people, your opportunities to eliminate bias against your client are limited to the peremptory and/or cause challenges you are given (there is an excellent piece of writing on this by Laura Dominic). The only other mechanism to remove the other biased people in the venire is a challenge for cause. For the court to remove a prospective juror from the venire, the judge and/or attorney must expose this bias through probing questions. These probing questions necessarily must inquire how jurors honestly feel about issues that may lead to you and/or your client being very uncomfortable.
When clients over the years have expressed concern about this path of inquiry, they often cite “poisoning the well” (i.e., if jurors start talking about how much they hate people like my client, doesn’t some of that rub off on the others in the room?). Typically no, it will rarely (if ever) actually change their attitude. The values behind the attitudes run deep. Think about politics and religion as an example. How many adult Republicans do you know who have recently become Democrats? How many Catholics do you know that converted to Islam? If you can find an example, it will likely include a traumatic event. After a car crash that claims the life of a family member or a nasty bout with cancer.
So why is the choice to sell your case in voir dire a problem? The reason is that it takes away time where you are probing for bias and replaces it with advocacy. Jury selection is not actually an advocacy based event. It’s basically a focus group in the courtroom.
One recent example of how lopsided a result can be comes from my own experience in a state courtroom where our side of the case was granted seven cause challenges and the other side received none. There was simply no evidence of bias that was identified by the opposing attorney that would lead to a cause challenge because none of those questions eliciting potential bias were asked. And, yes, we won. It’s better to hear about potential bias in voir dire than in post-verdict interviews.
Improving Results By making the choice to have an early focus on executing a deliberate strategy early, to start your opening with your primary theme, and to focus on identifying strikes instead of selling your case in voir dire, you can make a significant improvement in your case.