Bringing It Together For Trial
J. Ric Gass

Cite as 4 Litigation Commentary & Rev. 174 (November/December 2011)

Trials are composed of discrete segments: jury selection, opening statements, testimony segments with direct and cross examination of witnesses, closing statements, instructions and a verdict.  While the first trial is always daunting, after a couple of trials the procedure of preparing for trial can become deceptively simplistic: set up a folder for each segment, put the papers pertinent to that segment in that folder and then create the outline for what you are going to say, do and offer in that segment. You will never be embarrassed in any segment. You will always look like you know what you are doing. You will deal with the facts and evidence and be able to tell your version of the facts. Whether you will be telling “your side of the story” and connecting with both the heart and head of the jury is another question.

A trial is more that just the sum of those segments. Trials are entities unto themselves with their own name and identity. All of the segments and all of your file materials must meld together to really tell the story and win a verdict.

“Bringing it together for trial” is trying cases in a holistic manner. It melds theme development, creating and telling a trial “story,” dealing with emotions, handling the interplay of liability and damages and telling of the story above the evidence. “Bringing it together for trial” is the persuasive art and craft of the trial lawyer as opposed to the motion and discovery practice of the litigator. It is weaving “the Eight Dimensions” of trial into an integrated approach to consistently win at trial.

“Bringing it together for trial” is more than the logistics of turning a case file into a trial file. That is easy. For trial, you need four things: 1) A well organized and labeled case file, the one you have been familiar with as the case developed; 2) The trial segment folders (while you are working on them, they will contain rough Q&A outlines and ideas, any statements, documents, photos, etc. that you need for that distinct segment of trial, but in trial they are reduced to just the final examination outline and any associated exhibits); 3) A set of ring binders or folders organized topically, not by witness. For example: police report, OSHA report, ASTM standards, etc; and 4) Three 3-ring binders: Liability (with a section for each witness containing everything concerning or associated with that witness), Damages (with a section for every entity associated with the claimed damages) and Miscellaneous (whatever does not fit logically in either Liability or Damages). The more you can begin to develop this type of organization during the case development the smoother will be your transition from case development to trial development.

You will also be bringing together the law: the elements of the cause of action or the defense and evidentiary issues in trial briefs, motions in limine and motions for dismissal, for judgment, for answering questions on the verdict as a matter of law or for particular instructions.

Trials also require bringing together the psychology and emotions of a case. How will each side deal with or engender sympathy or anger? Then, after you figure out how those will be dealt with on each side, you have to “play it down the board.” You have to figure out what reaction there will be to the other side’s action in dealing with those emotions, the same way you play the facts and counter facts down the board.

“Bringing it together for trial” obviously includes bringing the witnesses in the right order and at the right time. It also includes having some order for your exhibits: maybe in the order of the witnesses as you call them or maybe more importantly in the order that you would like the jurors to look through them during deliberations. That choice is a matter of style. My own preference is to number them in the order that best tells our side of the case and then encourage the jury to look at them in that order so that they can best do their job.

“Bringing it together for trial” also includes bringing the case together “visually” with demonstratives, exhibits and with PowerPoint to tell the story of the case visually as well as verbally.

“Bringing it together for trial” also includes bringing you and the client together. Bringing the client to the point where they will share everything with you that you need to tell their side of the story. To bring a client to that point, you have to be willing to be more than a lawyer. You must be a human being in your relationship with the client. To do that, you have to be willing to share some of who you are and how you are made up. That is when the client can really trust you. Remember when the client takes the stand and you do direct examination that is not a monologue. It is a dialogue and much like a trapeze act. The client needs to trust that you will be there with outstretched arms to catch them as they leave the safety of their trapeze and fly through the air to be caught by you.

“Bringing it together for trial” always includes Plan B because a lot of Plan A is going to be objected to or go awry in some way. Plan B, though, cannot be, “Well, if I have to I’ll….” You have to have the mindset of, “If I cannot do ‘A,’ then what are the advantages of having to do ‘B.’” It is finding the proverbial “silver lining.” It must fit with the overall theme you have established. You must make it a change in emphasis only and maintain conformity with the overall theme.

“Bringing it together for trial” also means recognizing and closing off “rabbit holes” so that you do not get off track or get taken off track. You must always keep the focus on the big picture. That is what wins cases, not the little points.

“Bringing it together for trial” requires recognition that facts at trial fall into three important categories: those present in court, the absent evidence and witnesses and the uncontestable facts. Those “present” in court are only there through the perceptions of the jury and are not really facts at all in the scientific sense of that word. They are what the jury perceives them to be. The importance of absent facts is the inferences you can get the jury to draw from the absence of a witness, document or whatever kind of fact. Those are powerful because if the jury believes the inference, there has been no cross exam of it and it become virtually uncontestable. The last category is uncontested facts. They are what draws boundaries and lines. You need to know where the lines are and work within and around them, and you need to see how they create “boxes” around witnesses and then use those boxes to control how the case is presented.

How do I personally “bring it together?” I do so through the use of focus group testing as early and as often as possible as we develop the case. We do not do “mock trials” because that is advocacy-based research. Rather, we use four scripts that are read (and given in hard copy) to the jurors: 1) The uncontested facts; 2) The best story, argument and evidence for the plaintiff; 3)The best story, argument and evidence for the defense; 4) The plaintiff’s rebuttal. We measure the reactions of the jurors after each of those scripts. Writing the scripts at the beginning of the case and then amplifying them as the case develops and more evidence is discovered keeps us focused at all times on the “big picture” and the boxes of the uncontested facts. It always keeps us focused on a “bringing it together” mindset.

 

After writing this month’s column I asked for reactions from my trial team. What follows is a “judicial” observation on this column from my partner Michael Brennan, an ex-judge.

One thought that comes from presiding over many trials on the bench harkens back to Tom Wolfe’s book Bonfire of the Vanities. It is a great book – a fascinating read from the legal, cultural, and human perspective.  It was a runaway bestseller.  But, when they made it into a movie with Tom Hanks, Bruce Willis, and Melanie Griffith, it was a disaster.   I can recall a newspaper review of the movie.  It began with the sentence, “There are a lot of good movies to be made out of this book. This movie is not one of them.”

That is how I often felt about the case being tried before me:  “There are a lot of good trials to be made out of these facts. This is not one of them.”

What Ric has outlined is how to make a WINNING trial out of the MANY trials that can come out of a set of facts, applicable legal principles, etc.  Trial lawyers need to leave behind the idea that one set of facts and one set of applicable law equals one way to try that particular case.

When Ric writes:  “Those [facts] “present” in court are only there through the perceptions of the jury and aren’t really facts at all in the scientific sense of that word. They are but what the jury thinks they are: what they perceive.” It is so true.  Getting the jury to perceive the right facts in the right sequence with the right inferences allows the WINNING trial to be made out of the same set of facts for which a losing trial might also be made.

This idea resonates with the quotation Ric frequently cites from Edward Bennett Williams that “one-third of all cases can never be lost, one-third can never be won and the battle over the remaining one-third makes or breaks a trial lawyer’s reputation.” The trial lawyer’s ability to shape facts, inferences, arguments, and absent facts into the arguments that persuade is making the good movie out of the book.

--Mike Brennan

 

J. Ric Gass is a shareholder of the firm Gass Weber Mullins LLC, in Milwaukee.  Ric is a Fellow of both the American College of Trial Lawyers and the International Society of Barristers and a Diplomate in the ABOTA. Ric will be president of the LCA in 2012. He is a Past President of both the Federation of Defense & Corporate Counsel and Lawyers For Civil Justice.