Now that the coronavirus vaccinations are moving toward the point of critical mass, it might be safe to think back on the early weeks of the vaccines’ roll-out. At that stage, many health officials were emphasizing the limits of the vaccine. The message went sort of like this: “It’s no guarantee against the virus, you might still get sick and you might still pass it on to others, so keep avoiding large gatherings, keep social distancing, and keep wearing that mask.” In response to that message, many wondered, “Okay, so why are we getting the vaccine if nothing changes?” Since then, health officials have largely recalibrated the message, emphasizing the dramatic benefits of vaccination for both individuals and society, and the CDC has chimed in to say that, for the fully vaccinated, those earlier precautions are no longer necessary.
But those earlier precautions continue to provide a timely reminder of the dangers of overselling the limits. It may have been accurate, but it still led to the wrong emphasis. Legal persuaders can sometimes make the same mistake. The law and the rules of the courtroom can place limits on a litigator’s abilities, and while it is the job of the judge to enforce those limits, I’ve sometimes seen litigators bending over backwards to stress the limits to the relevance and the meaning of what they’re doing in the moment. Sometimes there might be a strategic reason to do that, but at other times, I think that the attorneys are stressing it simply out of habit, or simply because it is a limit that is literally true, albeit practically unnecessary to emphasize. In this post, I’ll share three ways lawyers oversell their limits at different phases of trial.
“I’m Not Talking About This Case” (In Voir Dire)
You can’t ask your potential jurors to prejudge the actual case as part of jury selection. Judges will generally see to that. Some questioning attorneys take that too far, however, and act as though it is not proper to address the case at all. Asking about general attitudes and experiences is fine, but it is important to remember that these attitudes and experiences are only given life within the framework of a specific context. Your case is that context. So, unless your judge flatly prohibits it, you should at least try to give your potential jurors a three-sentence version of the situation that gave rise to this case. Then, they’ll have a better handle on which views and experiences might be relevant.
“What I Say Isn’t Evidence” (In Opening or Closing)
I’ve seen attorneys go on and on about this in opening statement, to the point that I’ve wondered whether the message that jurors are left with is that the attorney presentation is simply unnecessary. It isn’t. Jurors need to understand the story at the beginning to see where the evidence fits in, and they need to hear the argument at the end to understand what the attorney is doing with the evidence. It is true that neither of these attorney moments constitutes “evidence,” but I don’t think that jurors are nearly as focused on that distinction as lawyers are. They want to know what happened and who is responsible. Both the evidence-proper and the attorneys statements help them do that. So, it is best to just let the judge’s instruction speak for itself and focus on what opening and closing can do (tell a story, make an argument) rather than on what they can’t do.
“We Don’t Have the Burden” (When Defendant or Opposing an Affirmative Defense)
A final limit is sometimes misperceived as a strength. Saying, “We don’t have the burden,” can feel like you’re putting responsibility where it belongs, on the other side. But the practical implication that can be drawn from, “We don’t have to prove anything,” might be “and we’re not even going to try.” The message received might be that, instead of actually playing defense, you are going to be like the baseball team on the field that just watches and hopes the other team’s runner trips while sprinting for home base. In practical experience, it is safe to assume that your fact-finders will place a psychological burden on both sides. They’ll expect you to support what you’re saying, so you may as well embrace that.
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