15 How Do I Win My Trial?

Gina desperately wanted to win her trial. Gina wasn’t even that concerned about whatever monetary recovery she might make or injunctive relief she might gain from her lawsuit. Gina just wanted to win. For once in her lifetime, she wanted vindication. Gina wanted someone important, wise, official, and respected to tell her and tell the world that she had been right and that her opponent had been wrong. Gina didn’t even understand why winning her trial was that important to her. If she’d thought deeply about it, she probably could have traced it to her personality and upbringing. But it didn’t really matter. Gina just wanted to win, not at all costs, but convincingly, once and for all.

Objectives

You filed your lawsuit to win it, not to lose it. Lawsuits can have varied objectives. You presumably want to win the relief that you claim, whether money damages paid by the other side or the other side’s insurer, eviction from your land or premises, spousal support or a fair property division in your divorce, or a retraction of defamatory statements. You may also want to discourage your opposing party from continuing a practice, such as trespassing on your land, poisoning your cattle, endangering your children, or continuing to sell an unreasonably dangerous product. Don’t use your lawsuit for illegitimate objectives like to burden, embarrass, coerce, and harass. But as to your legitimate objectives, go for it. Do your best not just to compete but also to win. Play by the rules, but play hard. You’re not looking for a participation ribbon. You instead want to come out on top.

Theme

One way to increase your chances of winning at trial is to have a clear trial theme. As decision makers, a lot of us don’t reason as logically as we should. We tend not to reserve judgment until all the facts are in, and then carefully weigh those facts as we should. Instead, we tend to jump to a conclusion and then use whatever fact gathering that follows to confirm our initial conclusion. That’s why your trial presentation needs a theme. If you can’t tell an acquaintance what your trial is about in one short, compelling sentence, you’re probably losing your trial. The theme may be your employer’s law breaking, your reporting of which got you fired. Or your theme may be your surgeon’s careless slip of the knife nearly costing you your life. Or your theme may be your business partner stealing the company’s profits. Whatever it is, your case needs a theme around which you and your attorney build your whole case. Keep your case’s theme simple and compelling. A strategy, like overwhelming the opposing party with evidence, isn’t a theme. A theme is instead the rallying point of your cause of action. 

Impressions

Another way to increase your chances of winning at trial is to beware of every impression your presence leaves in and around the courtroom. Courts and judges intentionally limit what jurors can hear and see. Jurors also know that the parties and their attorneys have carefully curated all testimony they hear and exhibits they see. Jurors, in other words, know that they’re watching a manipulated show, not reality. As a result, jurors tend to watch other things like hawks seeking unaware prey. They may draw more from what they see or hear you or your opposing party doing in the parking lot outside the courthouse than what they see and hear under oath from the witness stand in the courtroom. So, be on your guard. Be polite and appropriate at all times. Don’t laugh and joke in the back of the courtroom on breaks but then weep over your pain and misery when on the witness stand. Don’t drive up to the courthouse in your luxury sedan but then claim poverty on the witness stand. Be consistent, genuine, and on guard against small contrary impressions. And be sure that your witnesses set the same tone. Respect the jurors, and respect the proceedings. 

Draw

Another way to increase your chances of winning your trial is with an effective jury draw. Jury draw is the first thing that generally happens in a trial, as the next chapter details. First impressions are important. Studies of juries suggest that jurors begin making up their mind from the very first moment the judge briefly tells them the nature of the case and the attorneys begin questioning them about potential bias. Your attorney should know how to use those questions of jurors to convey positive impressions about you and your case and negative impressions about your opposing party’s case, while ensuring that the jurors the judge seats to hear your trial hold no bias against you. Your opposition is doing the same thing, already trying to sway jurors and select jurors favorable to your opposing party. That’s how the system works, balancing one side’s efforts against the other side’s contrary efforts. Your case result is in the jurors’ hands. You need an effective jury draw to win your case. See more detail in the next chapter on jurors. See also the proposed jury voir dire in the appendix at the back of this guide. 

Opening

Your case needs a good opening statement to increase your chances of winning your trial. The judge invites attorneys to give opening statements immediately after preliminary jury instructions. Opening statements are supposed to be brief non-argumentative presentations of the facts that a party intends to present in its case in chief through its witnesses and exhibits. An effective opening statement, though, is anything but an offhand summary of facts. Instead, an effective opening statement articulates and reinforces the theme that your attorney has already subtly introduced in the jury draw. We understand by stories, not by long-winded recitations of disorganized facts. Your case’s opening statement must be a coherent account compelling the conclusion you seek, even if the judge will ensure that it is in the form of a non-argumentative summary of the facts you intend to prove in your trial presentation. 

Case

Following opening statements, the plaintiff who brought the case presents the plaintiff’s case in chief, calling the plaintiff’s first witness. If you are the plaintiff, you may be your case’s first witness, particularly if your testimony is clear and convincing, and establishes the key facts and narrative in your case. Some cases, though, require some groundwork before the plaintiff testifies on the plaintiff’s own behalf, perhaps from an eyewitness or an investigating officer. You also hope that your case in chief ends with a bang rather than a whimper, which may mean saving your testimony for last. Your key damages witness, whether the physician who describes your terrible injury or the bookkeeper who describes your terrible business loss, may also be a good concluding witness. Whatever the nature of your case and qualities of your witnesses, your case in chief needs to convince the jurors from start to finish of the justice of your cause. 

Testimony

Your own testimony may well be the single most-important key to winning your case. Your testimony must carry the day. If jurors do not see the justice of your cause in what you describe, then they’re unlikely to see it from the accounts your other witnesses give. You are generally the star of your own show. If you’re not the star, then you’ve probably given jurors too little reason to reward you with a verdict. You don’t have to be showy or arrogant. You instead need to be genuine and honest. But don’t hide your light in false humility. You have one chance to say everything that you need and want to say. Somehow, one way or another, you need to lay out your case through your own testimony. It might help if you looked at the jurors now and then as you testified, not artificially nor fawning, like you’re trying to sell something that the jurors aren’t buying, but genuinely, to let them know that you trust them with your future but hope that they are listening carefully.

Experts

If your case is of the type that requires or benefits from expert opinion testimony, such as a medical-malpractice case, products-liability case, or case benefiting from some form of reconstruction, then your liability expert’s testimony can go a long way toward determining whether you will win or lose your case. To increase your chances of winning at trial, identify, retain, and prepare a well-qualified expert who has an engaging personality and strong communication skills. You don’t need the best-credentialed expert in the world. You instead need a reasonably qualified expert who can connect well with jurors. It would help, in other words, if your expert had a little personality. But your expert also has to be able to communicate a compelling liability opinion, something that jurors can both understand and embrace. Your case depends on it.

Cross

As already suggested in the prior chapter on trial preparation, cross-examination is generally when the sparks fly and cases get made or broken. To win your trial, you likely need to withstand your cross-examination, have your other witnesses also do so, and then score at least a strong point or two on your attorney’s cross-examination of adverse witnesses. You can often predict the outcome of trials based solely on the cross-examination score, as to which party scored the most points cross-examining the other party’s witnesses. One big blow on cross-examination, and you might knock out your opposing party’s case. One big blow on your own cross-examination, and you might lose your case. To win your trial, score points on cross-examination, and defend the opposing attorney’s cross-examination effectively.

Rebuttal

After each side presents their case in chief, the judge invites rebuttal. A rebuttal case must not rehash matters already covered. A rebuttal case instead answers unexpected matters with which the other side surprised you in their case. You don’t need a rebuttal case if your attorney’s cross-examination of the opposing party’s witnesses was effective. But if the opposing party’s witnesses scored unexpected points with testimony that surprised you, then having your own rebuttal testimony or the testimony of another rebuttal witness available can salvage your case. If the other side knocked your case off its feet with a body blow, then try getting your case back up off the mat with a strong rebuttal. It may be your best chance to regain the jurors’ confidence in your case. When you’re knocked down, you need to get back up swinging.

Objections

Parties can win or lose cases based on their evidentiary objections and the judge’s ruling on those objections. When an attorney asks a witness a question or offers an exhibit, the opposing attorney may object, attempting to prevent the witness from answering or the judge from admitting the exhibit as evidence. If the opposing attorney succeeds in keeping out some critical testimony or a critical exhibit from your case, you could lose your case. Conversely, if your attorney succeeds in keeping out evidence that your opposing party needs to prove a claim or defense, then you could win your case. Likewise, letting inadmissible, unduly prejudicial evidence get in against your case can sabotage your case, while keeping that evidence out can rescue or preserve your case. Help your attorney patrol the evidentiary boundary closely so that you stand the best chance of winning your trial.

Motions

When a party rests from its case in chief, the opposing party has the opportunity to make a motion in court, arguing that the party who just finished presenting the party’s case has failed to present evidence on all elements of the claim. Judges rarely grant these motions in mid trial, having already spent considerable time and effort trying the case. Judges generally reserve judgment on a mid-trial dispositive motion, so that the jury can deliberate and reach a verdict in the case. Then, the judge can still grant the motion, in conjunction with a motion for judgment notwithstanding the verdict. Parties may also make mid-trial motions for a new trial or to strike evidence, statements, arguments, claims, or defenses, when misconduct by a party, witness, or attorney or other unusual matters arise. Let your attorney seek a trial win through motions during and immediately after trial. 

Closing

Closing argument is your last chance to snatch a trial win from the jaws of a trial defeat or, conversely, to lose a case you ought to have won. After the parties conclude presenting their evidence, the judge invites closing arguments. Closing arguments are the attorneys’ opportunity to advocate to jurors how to apply the law in which the judge will instruct the jurors, usually right after closing arguments, to the evidence the jurors have already heard. The plaintiff’s attorney argues first, followed by the defense attorney. The judge traditionally permits the plaintiff’s attorney a brief rebuttal argument. Jurors may have their minds made up well before closing arguments. Closing arguments may thus be more a matter of trying to change juror minds already made up against you, if your sense is that you’ve already lost your case, or on the other hand, trying not to say anything that might change juror minds already made firmly in your favor. Don’t make a risky closing argument if you’ve already won the case, but also don’t play it safe if you need to hit a home run in the closing argument to win.

Verdict

Jurors speak through their verdict. State and federal statutes and rules vary as to the unanimity or super-majority that civil verdicts require, just as they vary in the number of jurors required. The law applicable to your case may allow a dissenting juror or two, unlike in criminal cases generally requiring a unanimous verdict. In any case, when the jurors reach a verdict in their secret deliberations, the judge will invite them back into the courtroom for the jury foreperson to read the verdict. Gather yourself for the impact. It’s an important and pivotal moment. Once the foreperson has read the verdict, the judge may poll the jurors to be sure that the required number have agreed. The trial concludes with the dismissal of the jurors. But whether the verdict is for or against you, your case is not yet over. At that moment, post-trial proceedings begin. 

Judgment

Once the jurors reach a verdict, or if you tried your case instead to the judge, the next step is for the judge to enter a judgment. The prevailing party’s attorney typically drafts the judgment for the losing party’s attorney to review and approve, to then submit to the judge for signature. If the attorneys cannot agree on the judgment’s form, the prevailing party’s attorney will file a motion for entry of judgment, giving both sides the opportunity to argue before the judge as to the proper form and contents of the judgment. In a jury case, the judgment will reflect the verdict, unless the judge has ruled on a post-trial motion to reject the verdict. Post-trial motions may challenge the sufficiency of the trial evidence, point out inconsistencies or other defects in the verdict itself, or point to irregularities that occurred during the trial that probably materially affected the verdict. The judgment may both rule on trial or post-trial motions and incorporate the verdict, together with any adjustments for things like judgment interest and court costs. Unless an appeal overturns it, as discussed in a later chapter, you and your opposing party must comply with the judgment. Look to the judgment to determine whether you truly won or lost your trial. 

Reflection

What would be a win at trial for you? Do you have clear objectives for your trial? What do you estimate your likelihood to be for prevailing at trial? What do you need to happen at trial to increase your likelihood of winning? What do you hope your attorney can convey when questioning jurors in jury draw? What theme do you expect your attorney to convey in your opening statement? What is the strongest part of your case in chief? What is the weakest part of your case in chief? Do you have a good order for your case in chief? What is the most-important part of your own testimony? What part of your own testimony do you have the hardest time communicating? Does your case depend on strong expert testimony? What do you hope not to lose in cross-examination, and what do you hope to gain by cross-examination? Does the other side have evidence that you hope to keep out? Do you have evidence the other side hopes to keep out? 

Key Points

• Your objective at trial is to win the claims or defenses you pleaded.

• Increase your chances of winning at trial by having a clear case theme.

• Winning at trial can depend on controlling juror impressions.

• Influencing the jury begins with questioning of jurors on jury draw.

• Your opening statement needs to clearly convey your case’s theme.

• Your case in chief must support your claim and case theme.

• Your own testimony must be clear, confident, and compelling.

• Your expert witnesses must gain juror trust and confidence.

• Cross-examination of key witnesses can make or break a case.

• A rebuttal case may salvage a bad ending and get you back on track.

• Evidentiary objections can win or lose cases by keeping out evidence.

• Motions during or immediately after trial may determine the outcome.

• Closing arguments tend to reinforce juror decisions already made.

• Juries decide cases with unanimous or super-majority verdicts.

• Judges enter judgment based on the verdict and post-trial motions.

Read Chapter 16.