As lawyers preparing for trial we naturally form biases. As plaintiff’s lawyers these biases are usually in favor of our client. We get to know our clients’ on a personal level and we thus view our client and what our client says in a light which may differ from that of the jurors who view the trial. In addition to this we, as lawyers, come from different and various backgrounds. The jurors who sit and view our trials come from an array of different demographic backgrounds. Some jurors are educated some jurors are not educated. Some jurors were raised in urban areas others in rural areas. Some conservative, some liberal. The list of differences goes on and on and the resulting perspectives can vary tremendously. The way an individual interprets the outside world is entirely dependent on a person’s past life experiences. At the end of the day no two people see the same facts in the same way.
The point is this. We, as trial lawyers, need to be considerate of different viewpoints. When we analyze our case we need to try to get out of ourselves and into the perspective of our jurors. The jurors are the ones who will reach a verdict in the case and thus the jurors’ perspectives are the only perspectives that matter. Thus, when you are conducting voir dire you need to have your assistant taking copious notes regarding the various personalities who will hear the case. Then, after voir dire concludes, you need to be reviewing these voir dire notes regularly. In fact, it might not be a bad idea to skim over your voir dire notes every evening before the next day of trial. By doing this you consistently remind yourself of who is watching this case and thus who you are presenting to. You need to tailor your presentation of evidence to the characteristics of your jurors.
On this note, prior to trial, you need to be conducting lots of focus groups. Try to assemble focus groups with people who will represent the jurors hearing your case. For every major issue in the case do a focus group. Then listen to the feedback from your focus group members on that issue. Learn what each of the focus group members find important and not important. You will likely find that what you thought was a pivotal issue is of little importance to the jurors. You may find that the focus group members find some facts of your case important that you hadn’t even considered important to the outcome of case. These are issues which you will need to focus on in trial. These individuals may find some weaknesses in your case that you weren’t aware of. Catch these weaknesses early on, in focus groups, so that you can present evidence at trial which will allow you to overcome these weaknesses.
When you are in trial you need to be looking at your jurors regularly. This means that you need to be making regular and consistent eye contact with each and every one of your jurors. This eye contact allows you to assess how the jurors are reacting to information presented at trial. Nonverbal communication is powerful. Even without your jurors saying a thing you can learn a lot from watching your jurors during trial. See when they are paying attention and when they are not paying attention. Observe your jurors’ point of focus. When you focus on your jurors it reminds you to concentrate on presenting to your jurors. Your entire delivery in trial should be nothing more than a grand presentation to your jurors. Many trial lawyers forget this point and go through trial as if the jurors hearing the case are non-existent. The other thing which eye contact with jurors does for you is that it establishes rapport between you and your jurors. You need to earn your jurors trust. When your jurors trust you and like you, your case becomes much stronger. So look at your jurors often. Smile at your jurors when appropriate. Eye contact and a friendly smile will go a long way towards developing this rapport and trust.
David Ball has an interesting concept that he uses to spot opportunities for impeachment in trial. He suggests that you step into a witness’s shoes so as to interpret facts through the eyes of the witness. The idea is that you break up everything that the witness testifies to into little pieces. You then analyze each fact testified to by the witness. You then consider what does or does not make sense regarding what the witness has testified to. After some analysis, you may find that some of the witness’s testimony just doesn’t add up. You have thus found a possible point of impeachment. It is good to do this analysis both for your own witnesses as well as for hostile witnesses. Try to spot weaknesses in your own witnesses before the adverse party spots them for you. In this way you may be able to save yourself from an embarrassing impeachment.
David Ball suggests that you may want to take this point of view analysis a step further by combining this technique with that of backward analysis. What you do here is simply look at each step that the witness took and then consider each and every possible antecedent which might have caused the witness to act as he or she did. You may find that it is more likely that a different antecedent was at play rather than the antecedent the witness has testified to. This analysis takes patience. It takes the kind of patience that a good investigator might possess. To do this you will need to really focus on the isolated testimony of each witness. Look at what the witness says happened. Then get into the head of the witness. Pretend that you are this witness. What would you have done in the same circumstance had you been the witness at that time and place. You may realize that what the witness says happened doesn’t really add up. If you can find the weakness in a hostile witness’s testimony you find ammunition for cross examination impeachments. This technique takes practice to develop.