The easy cases are typically resolved early on. They settle or are decided by motion. Difficult cases are the most likely to be tried. In preparing for trial, one unfortunate reality is that you are likely to have some bad facts and are likely to have a few witnesses who you know are not going to impress the jury. Wishful thinking—such as hoping your adversary will not know your case has real problems—is not a good strategy. This article shares some thoughts on how to address the warts in your trial proofs.

Embrace the Ugly

Most trial lawyers focus on using their strengths and attacking the opponent's weaknesses. That's an excellent start—but you should also identify your weaknesses. One recurring problem is that, because most trial teams are tight-knit insular groups of one, two or three lawyers, we tend to buy our own arguments. The team works together, they develop the theory together and, because of that bond, it can be unpopular to point out flaws in the story you've developed together. You need an honest broker from outside your core trial team to critique the strengths and weaknesses of your case. And, perhaps more importantly, you should spend as much time on the ugly parts of your case (bad facts, bad law) as you do on the parts that are already solid. Out of fear of failing perhaps, we often ignore the ugly parts of the case.

Do not ignore the warts and bumps in your proofs and in your witnesses. Embrace the ugliest parts of your case, and really analyze them in detail. The “ostrich with its head in the sand” approach to trial does not work. If you really spend time evaluating the problematic parts of your case, you will often find that there is a viable way to either distinguish or turn the ugly-duckling facts into swans. Beyond not avoiding bad facts, you also want to actively search for problems. To fix a difficult matter, you must first identify your potential weakness.

Crafting the Case

At the outset of a case, consider two core questions: (1) what is this case really about, and (2) how am I going to prove my client's claim? It may be helpful to consider telling your client's case as you would a story. Jurors and judges like stories. In telling a good story, that is a good credible story, being truthful is important because your adversary, the jurors and the court are not blind. They will see the same problems you do and, if you are not candid with them, they will assume the worst. Part of telling a truthful story is giving away bad facts. Consider disclosure as part of the price of buying credibility. In telling your story, think about the facts (particularly the ugly ones) from the perspective of each of the witnesses. If you look at the facts and storyline from another's perspective, you will reveal some parts of the story that otherwise you would not have considered.

Lawyers are trained to think analytically and logically. That training must not impair the natural need to tell a convincing and emotive story. In short, you must engage both the brain and the heart. As Clarence Darrow once observed, “Jurymen seldom convict a person they like or acquit one they dislike.”

In creating your story, consider the listener. The jurors come from all walks of life and may understand your analogies or storyline differently than you intend. Consider honing your schema by discussing it with others, and not just other lawyers. Discuss the theme with your paralegal, your administrative assistant, with the bartender when you are having a beer, etc. In discussing the case, be mindful not to criticize their thoughts as you are eliciting their views. You desperately need to hear the thoughts that are cloying, critical and dismissive of your theory of the case. Do not be irritated if they disagree with your position, focus on what you deem irrelevant, or side with the adversary. Rather, be appreciative of the reactions that are inconsistent with your own because if you learn about these problems beforehand you can hone and craft your presentation to the jury. If you stifle these comments prematurely, you will never appreciate the weaknesses or strengths of those comments.

Your story should be expandable. Ideally, you will have an “elevator speech,” which is a compact and concise articulation of your case. In addition to the elevator speech, you must be able to expand and articulate upon each element of the story. The “gold” standard is a theme such as “if the glove doesn't fit, you must acquit” because it tells the defense theory succinctly and is easy for jurors to remember. If your theme is more like Proust, you have a lot of thinking to do in order to distill the real storyline inside your case.

Use focus groups and mock juries early in your trial preparation to craft your theme and identify weaknesses. A focus group does not have to be expensive and even a nominal investment will be repaid many fold. In my trial practice I will often play the adversary and present to a focus group under one theory and then later present the same case a different way. In polling the mock jury or the focus group, keep it simple. You do not need a long and complicated questionnaire. Instead, you are likely to get the core information you need from the focus group in less than an hour after you conclude your presentation. Because of the importance of honing your presentation, avoid engaging in a focus group or mock jury on the eve of trial. If you are taking trial preparation seriously, you want to use these tools early on so that you still have time to develop the evidence you need (or the evidence you need to discredit your opponent's narrative).

Stealing Thunder (the Inoculation Theory)

There are two opposing theories regarding disclosing bad facts. The majority, historic view is to disclose bad facts to the jury as soon as possible. The opposing view is that you should not poison your story with the bad facts because you will lose momentum. Gerry Spence advocates disclosure in order to maintain credibility. The thought here is that (1) these ugly facts will be raised by your adversary, and (2) if you do not raise them, your opponent will note not only the bad fact but also that you failed to tell the jury the truth. As Spence noted, “A concession coming from your mouth is not nearly as hurtful as an exposure coming from your opponents.”

The opposing theory, which advocates not disclosing bad facts, argues that sponsoring or introducing the ugly parts of the case may magnify the harmful parts of your case. The theory here is that if you are the advocate for your client, and you are putting forward the best part of your client's case, putting forward the bad parts of your case magnifies the impact of the bad facts. Jurors expect lawyers to be their clients' protectors at every moment, so the lawyer who discloses negative facts about his or her own client may risk creating confusion or even muddying the waters on the issue of loyalty to the client.

In the hopes of resolving the debate between trial lawyers who thought inoculation was the better approach and the proponents of telling your story only (and not disclosing or dwelling on bad facts), social psychology researchers conducted mock trials where one lawyer disclosed the ugly facts and where the same lawyer, using the same fact pattern, did not disclose the unattractive parts of their case. Fifty percent of the mock jurors found for the lawyer who disclosed, while 43 percent thought that the lawyer who had not disclosed remained credible. Oddly, similar studies involving the credibility of expert witnesses (as opposed to fact witnesses), found that experts gained credibility by disclosing the minutiae inconsistent with their case.

Perhaps the best way to reconcile the “disclose” and “do not disclose” schools of thought is to consider how the disclosure is made. For example, rather than blatantly conceding that X is a bad fact, you can note X and explain it away along with some other trivial problems. You will have to decide based upon your facts and your jury whether full-blown disclosure is the right strategy.

Ethics of Witness Preparation

Some witnesses are just not credible and no matter how much you polish an ugly wart, it remains an ugly wart. What do you do? One option is to minimize the role that witness plays, and remind the witness that each witness is part of a team. Witness A does not and should not testify on the area that really belongs to witness B. Too often witnesses try to overreach, hurting both A and B. A second possibility is to decide not call the bad witness, but you should consider that your adversary is certainly going to point out that omission to the jury and the court.

If the witness must appear and is problematic, you will need to work with that witness. In working with a witness, there is a fine line between helping the witness testify and coaching the witness, i.e., beating into the witness a response so that the witness is not really testifying. It is proper of course to explain the law to a client and, further, to discuss their answers to the core questions in the case. Please note that the practice in the United States of preparing witnesses is questioned in Canada and under English law. What we view as proper witness preparation is considered witness tampering abroad. There is a line in the United States too—helping the witness perform is acceptable, but coercing the witness and replacing the witness' voice with your own, is not.

Conclusion

Trial practice is fascinating because excellent trial lawyers can have completely different approaches to the same problem. Two juries may hear the same facts and reach different conclusions—unfortunately, that is the reality of the cases that go to trial. This is especially true today where fewer and fewer cases are tried. Small changes in your presentation at trial may shift the balance of the scales of justice. Beyond preparing for the case you want to present, actively search for the weaknesses in your theory and your facts. Be ready for the bad facts and the bad witness so that you can make the most of your one shot at trial.

Pollock is a partner with Fox Rothschild, in Princeton. He focuses his practice on complex litigation and policyholder representation.