As published in the July 14, 2010 issue of “The Voice”, a weekly publication of DRI, the international membership organization of all lawyers involved in the defense of civil litigation; Volume 9, Issue 28
Building Credibility at Trial: The Key to a Winning Verdict
By M. Scott Bailey
Huff, Powell & Bailey, LLC, Atlanta, Georgia Jury trials are like zebras and snowflakes – no two are exactly the same. Facts, witnesses, clients and judges are just some of the variables that make each trial take on a personality and life of its own. The one constant that should remain in every case you try is your personal credibility. Jurors can and do forgive bad witnesses, unfavorable objection rulings, and even ugly ties, but to lose credibility with your jurors is to lose your entire case. Whether or not jurors believe you is a fundamental barrier they must cross before they can believe your client, trust your case, and ultimately find in your favor.
Like many things in life, first impressions are crucial when dealing with jurors. When potential jurors are herded into the courtroom for voir dire many are already irritated for having to appear for jury duty. They probably have been corralled into the jury assembly room, endured a long wait for a courtroom assignment, and are now apprehensive about actually being selected for a jury trial and the prospect of disrupting their personal lives for a week or more. A skeptical, inconvenienced gathering of potential jurors will not be happy to see a bunch of lawyers ready to pepper them with seemingly inane and invasive questions for the next several hours.
Building credibility with this kind of audience demands three basic things: efficiency, preparation and organization. What I want the jurors to see on my side of the courtroom when they first walk through the door is an impeccably neat and organized counsel table. No soda cans, no water bottles, and no scattered papers or unorganized exhibits strewn around. I want the jurors immediately to get the impression that this is an important case, one worthy of their time and attention. I want to transform the perceived inconvenience and annoyance of jury duty into a feeling of empowerment and importance in deciding a real case with a lot at stake for both sides.
As a defense lawyer, I find an advantage in asking my voir dire questions after the plaintiff’s counsel. It allows me time to memorize some of the more talkative jurors’ names so I may address them personally. Also, I can give the impression of preparedness and efficiency by not re-asking questions and keeping general voir dire to a minimum.
Like Big Brother, the jury panel is always watching. Even when you, your client, and co-counsel are not actively engaging them, they are watching your every move. Mundane, innocuous actions like shuffling papers, searching for exhibits, or typing on a laptop carry much different perceptions in front of a jury than they do sitting in your office. Shuffling around or excessive whispering back and forth can connote disorganization, unpreparedness, or the sense that you are worried about how things are going. This holds true not only in jury selection but throughout the trial. In a courtroom, perception truly is reality. If the jury perceives that you are confident and give the impression that you are ready for anything, your credibility with them will start to grow.
Opening statement is perhaps the greatest opportunity to build more credibility that hopefully will carry through the rest of the trial. Again, organization and preparedness are the keys. Usually, I have an electronic presentation or slide show to keep me organized and on track coupled with a slim binder of notes in case I need to refer to them. I make sure to mention each important witness by name and give one or two specific examples of what I expect his testimony to be. In the case of an opposing expert, I want the jury to hear detailed excerpts of testimony I know I will be able to elicit on cross-examination. Later, when the expert is on the stand, part of the cross-examination will elicit the exact quotes I told the jury about in opening. Coming through on the promises you made during opening with the witnesses’ own testimony is a big credibility boost to you and your client.
Mastery of the case’s subject matter is paramount, yet some lawyers inexplicably want to appear as though they are learning the subject along with the jurors in a flawed attempt to convey that they are “just like them.” I couldn’t disagree more with that approach. There is no better way to build credibility than to show the jury that you have spent the time and effort to know the specifics of your case backwards and forwards and can converse with expert witnesses on both sides with confidence and authority. For example, in a medical malpractice trial, correct pronunciation and proper use of medical terms is absolutely essential. Knowledge of medical records, familiarity with medical texts and literature, and the ability to know when an expert is overreaching in his testimony are all ways to build tremendous credibility with jurors. Conversely, there is no easier way to empty your credibility account than to misuse terminology or seem unfamiliar with basic aspects of your case’s subject matter.
Ultimately when all the evidence is in and all the witnesses have testified, many jurors will be inclined to decide the case in favor of the lawyer they perceive as the most believable. That perception is founded on who they think is more prepared and more organized. As trial lawyers, our goal is to achieve a favorable result for our clients by convincing jurors that our side should prevail. Ultimately, jurors begin to form their opinions in large part by deciding, consciously or subliminally, which side is most believable. Therefore, the key to winning a jury’s favor is to begin building your own personal credibility from the first time they lay eyes on you and cultivating it throughout the trial. After all, if juries don’t deem you worthy of belief, they aren’t likely to believe in your client’s case.
For more news, check out some other great articles:
Doctor Prevails in Malpractice Case, By Greg Land (Daily Report Article, 05/01/2012)
Firm Succeeds Against Botched Surgery Claim, By Alyson M. Palmer (Daily Report Article, 02/02/2010)
Medical Malpractice Case Ends in Mistrial, By Katheryn Hayes Tucker (Daily Report Article, 08/16/2010)
Birth Defect Case Splits Court, By Alyson M. Palmer (Daily Report Article, 07/23/2009)
$10M Medical Malpractice Verdict Averted, By Janet L. Conley (Daily Report Article 04/07/2011)
Firm Succeeds Against Botched Surgery Claim, By Greg Land (Daily Report Article 08/20/2009)
Lawyers Challenge ER Statute, By Greg Land (Daily Report Article 08/25/2009)
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