The power of clear communication and persuasive arguments cannot be overstated in the courtroom. These skills are not just useful; they are essential to winning a case. Developing a positive emotional rapport with the jury helps jurors connect with the message's content, making it more impactful.
However, from a defense perspective, certain pitfalls can lead to costly outcomes if not carefully avoided. After years of experience and observation, we have identified three traps to avoid at trial. These traps can undermine the effectiveness of defense counsel and significantly influence a trial's outcome.
The first trap involves the perception of the corporate defendant. Jurors tend to view corporations as impersonal and overbearing, which can create a bias against them. The second trap, which can have a particularly damaging effect, is the failure to admit the obvious. This can undermine the credibility of the defense and weaken the overall argument.
Lawyers often waste time and resources disputing points not central to their case. The third trap is disagreeing in a disagreeable manner. Professionalism and courtesy in the courtroom fulfill ethical obligations and play a significant role in maintaining a positive courtroom environment.
1. The “Big Bad Corporation” Trap
The Importance of Humility
Jurors generally dislike arrogance and bullying. When a corporate defendant appears overbearing or indifferent, it often backfires. Despite judicial instructions to base decisions solely on evidence and law, jurors' emotions still play a role in their decision-making.
Depicting a defendant as greedy or dismissive can lead to significant trouble. Therefore, it is essential to approach the case with humility and respect for the jury's perceptions, as these emotions can significantly influence the trial’s outcome.
Humanizing the Corporation
To counteract negative perceptions, defense counsel should focus on humanizing the corporate client. Showing the "people side" of the business can effectively remove the stigma that being big means being bad. This can be done in several ways:
Highlight Community Contributions: Demonstrating the corporation's involvement and positive impact on the community can build goodwill. Examples include charitable activities, local sponsorships, and community service initiatives.
Present Employee Testimonies: Bringing in testimonies from employees can humanize the corporation. Employees can share their positive experiences and the ethical standards upheld within the company.
Emphasize Ethical Practices: Highlighting the company’s commitment to ethical practices and values can help dispel negative perceptions. This can include presenting evidence of compliance with regulations, fair treatment of employees, and responsible business practices.
Avoiding Negative Perceptions
Maintaining a positive image is paramount in a trial. Defense counsel should work to ensure that their client does not appear negatively in front of the jury. This involves carefully preparing and presenting evidence that emphasizes the corporation's positive aspects and minimizes negative inferences. It is challenging enough to win a case without overcoming a significant emotional hurdle created by a negative perception.
Consider a situation where a large corporation was sued for environmental damages. The defense team would benefit by focusing on humanizing the corporation by presenting evidence of the company’s efforts in environmental conservation, such as sponsoring local clean-up initiatives and funding ecological research.
They can also bring in employees to testify about the corporation’s internal policies promoting sustainability. This approach can help shift the jury’s perception from seeing the corporation as a faceless entity to recognizing it as a group of individuals committed to positive change.
2. Not Admitting the Obvious
The Strategy of Picking Battles
One key strategy in trial advocacy is knowing which battles to fight. Abraham Lincoln, renowned for his skills as a trial lawyer, often conceded minor points to strengthen his case and arguments. This approach remains powerful today. By admitting obvious facts, lawyers can focus on the core issues of their case, making their arguments more compelling and credible.
For example, admitting liability can benefit the defense in rear-end automobile accident cases involving soft tissue injuries. By doing so, the jury focuses solely on the nature and extent of the injuries and the damages sought. This strategy prevents the defense from appearing evasive or dishonest, which can negatively impact the jury's perception.
Simplification and Focus
Simplifying a case by admitting obvious facts allows the defense to concentrate on key issues, enhancing their overall advocacy. This approach makes the case easier for the jury to understand and demonstrates the defense's integrity and rationality.
Steps to Simplify
Identify and Admit Obvious Facts: Acknowledge clear and indisputable points, such as the incident's basic facts or minor details that do not affect the core argument.
Concentrate on Major Points: Focus on the primary issues in dispute, such as the extent of damages or the plaintiff's credibility.
Avoid Unnecessary Disputes: Do not waste time and resources arguing over minor or irrelevant points. This only serves to distract the jury and weaken the overall argument.
Like the example above, in a case involving a slip-and-fall accident in a grocery store, the defense could admit that a spill had occurred and had not been promptly cleaned up.
By admitting these facts, the defense could focus on contesting the severity of the plaintiff's injuries and the reasonableness of the claimed medical expenses. The attorneys representing the grocery store could present medical experts who testify that the injuries were possibly exaggerated and provide evidence of the plaintiff's pre-existing conditions.
3. Disagreeing Without Being Disagreeable
Professionalism in Litigation
Litigation is essentially a formalized method of resolving disputes. The court rules must be followed, and so must the rules of professionalism. Professional conduct in the courtroom is a matter of ethical obligation and can be a strategic advantage. Jurors, judges, and other courtroom participants respond positively to lawyers who conduct themselves with respect and courtesy.
What Are Some of the Benefits of Professional Conduct?
Professionalism in the courtroom can significantly influence the outcome of a trial. Lawyers who adhere to principles of professional responsibility tend to gain the respect of the jury and the court. This respect can translate into a more favorable perception of the lawyer’s arguments and, by extension, their client’s case. The following are some examples of several key aspects of professional conduct:
Avoiding Tactics That Delay or Harass: Ethical lawyers refrain from using tactics designed to delay proceedings or harass the opposing party unnecessarily. Such tactics can backfire, leading to negative perceptions by the jury and judge, and could even lead to sanctions.
Being Courteous and Respectful: Courteous behavior towards all parties in the courtroom helps maintain a positive and professional atmosphere. This includes showing respect to clients, adverse litigants, opposing counsel, and the court itself.
Pursuing Meritorious Positions: Lawyers should only pursue positions and litigation based on fact and law. This principle aligns with ethical standards and enhances credibility with the jury.
Embrace Professionalism
Maintaining professionalism is beneficial not only for ethical but also for strategic reasons. The “Be hard on the problem, soft on the people” approach is particularly effective. By focusing on the issues at hand while treating everyone involved with respect, lawyers can foster a positive environment conducive to favorable outcomes. This method also applies in Alternative Dispute Resolution (ADR) settings, where respectful negotiation can lead to successful settlements.
Professionalism in Alternative Dispute Resolution
Professionalism is equally important in ADR settings, such as mediation or arbitration. Respectful negotiation can facilitate settlements and reduce the adversarial nature of disputes. For instance, a respectful and courteous mediator can help the parties reach a mutually agreeable resolution more efficiently. The principles of being hard on the problem and soft on the people also apply here, encouraging parties to focus on resolving the issues rather than engaging in personal conflicts.
Professionalism in the courtroom and other legal settings fulfills ethical obligations and enhances the likelihood of favorable outcomes. Lawyers can positively influence juries and judges by maintaining respect and courtesy, benefiting their clients’ cases.
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