Caroline Walker interviews a panel of experienced trial attorneys: Kim Bueno, Paul V. Cassisa, Jr., Andrea La’Verne Edney, William M. Gage, Anita Modak-Truran and Orlando (Rod) R. Richmond, Sr. These Butler Snow lawyers, combined, have more than 170 years practicing law and have tried hundreds of cases. The panel includes the 2022 Vice President of the American Board of Trial Advocates, who will be the first female African American National President of ABOTA in 2024, and the 2022 Vice President of the Trial Attorneys of America, who will assume the position of President in 2023.
It is 2022 and we are ready to be back in the courtroom. For the past two years, most civil trials have come to a grinding halt due to the COVID-19 pandemic. However, lawyers, judges and litigants alike are eager to return to the courthouse—and courts are increasingly comfortable using technology or other creative solutions to keep their cases moving forward through trial.
As we anticipate (and hope for!) a broader return to the “normal” courtroom in 2022, we interviewed a panel of experienced trial lawyers and asked them to share their wisdom about lessons learned at trial, as well as strategies for winning complex cases.
We hope that our readers will benefit from their knowledge and experience.
1. What lessons have you learned at trial that you think all lawyers should know?
It is my experience that cases typically turn on two or three facts or issues at most. Don’t leave it to chance that a jury will understand that a particular piece of evidence or testimony is important to the case. Instead, preface the question with, “Now, I need the jury to understand this,” or “Doctor, this is important, please explain …” Slow your speech, use hand gestures, write on a whiteboard or make a deliberate move closer to the witness during such moments.
As defense counsel, you simply cannot concede all the passion in the room to plaintiff’s counsel. Resist the professional training that compels you to talk like a lawyer when the jury is in the box. Moreover, when witnesses, particularly experts, offer complex or scientific language, restate it in lay terms for the jury, even if you have to do so in structuring the follow-up question. Don’t be afraid to ask, “And by that do you mean …?” The objective is to simplify things as much as possible.
Never take counsel opposite lightly. Deciphering what is good lawyering is not as easy as one might think. Lawyers who are not viewed as particularly talented win big all the time. Don’t be tempted to find comfort in a real-time critique of the other side. Leave that evaluation up to the jury or at least for post-trial analysis. Spend all your time working on how to marshal the facts in a persuasive way for your defense.
Plan ahead – but be ready to improvise. Trials never go as planned. Preparation is important, but it is impossible to predict all the curveballs from opposing counsel, the judge and witnesses. The best cross examinations often happen after a good night’s sleep.
Every single trial is unique. Never assume that one shoe fits all. Don’t get caught up in how another attorney presents his/her case if it doesn’t feel comfortable to you. Your job is to start each trial as if you have a clean canvas on which you layout your case. While you might consider past rulings, jury verdicts in that jurisdiction, etc., do not put more weight on those things than they deserve. Each trial is unique and should be treated independently of others.
Finally, make sure you do your homework to determine how the Judge likes to conduct trials – down to where you can/cannot stand when presenting your case to the jury. If there are rules on the Judge’s website, make sure you are familiar with those before you enter the courtroom. Be flexible and always be ready for curveballs.
The exact words used by a deposing attorney matter significantly at trial. Every word and phrase that a deposing lawyer utilizes during the deposition of a witness will be parsed and scrutinized when it is introduced at trial or used to impeach a live witness at trial. It is essential that lawyers taking depositions understand how depositions are used (or not used) at trial.
It’s a cliché, but true: there are no guarantees in front of a jury. Great cases can be lost, and challenging cases can be won. Early in my career, I had a catastrophic injury case involving a child that seemed indefensible. A significant amount of money was offered to settle the case, but the plaintiff’s attorney was extremely confident.
We won. And then the case was tried again. We won again. While humanity and emotion favored the plaintiff, the law was on our side.
But the jury of “then” is not the jury of “now.” In my experience, it is harder to find strong minded jurors who care and who will follow the law. Social media, fake news, misinformation and an increase in conspiracy theories all play a role in jury’s prejudging and not trusting corporate defendants.
Because of that, the need to earn the jury’s trust is so important. Building trust starts in jury selection and continues to the end of trial. The jurors must find you accessible. You must intentionally listen to what the jurors say or don’t say during voir dire, demonstrate reasonableness and not shy away from the “elephant in the room.” If a juror believes you are avoiding the bad stuff, then you have lost trust.
The best thing of all is you don’t do this solo. You do this as part of a collaborative team where ideas are vetted, deconstructed and reconstructed. As Walt Disney said, “Whatever we accomplish belongs to the entire group, a tribute to our combined effort.”
Be prepared. Be flexible. Be serious most of the time and use humor when you can.
2. How do you humanize our clients in the face of a culture that is often distrustful of large corporations?
This starts in voir dire. Have a good company representative that you can make the face of the company. Make sure they are very familiar with the facts of the case and that they understand the importance of their role at trial. Starting in voir dire, take every opportunity to talk about the company representative, the great things the company is doing and the fact that you are aware that we face a culture that is often distrustful of large corporations. Get the venire to promise that they won’t take that out on your client. Ask them to give your client a fair chance.
Make sure you get to know the client – and not just as it relates to the case you are trying. Oftentimes we neglect to familiarize ourselves with all of the great things the client is doing to make a difference in our communities. If allowed, talk about those things. Talk about the people that make up the corporation you are representing. Make sure the jury understands that you are representing this client because you believe in its mission and the services it provides to the community.
As a little kid, I used to play this rhyme game with my hands. “Here’s the church, here’s the steeple, open the doors and here are all the people.” From this simple rhyme, we all know what’s important. The emphasis is not on structures or edifices, but the people. The best way to humanize a large corporation is to tell stories of the people who make up the company, why they do what they do and how what they do matters. Every company has good, dedicated people. As trial lawyers, our job is to effectively communicate their stories.
The best way to have a company be viewed favorably by a jury is to put up a likeable, knowledgeable company witness who presents well. It allows you to push back on the broad negative strokes regarding “the company” that plaintiff’s counsel will paint. Additionally, I have been able to get certain concessions from experts for both sides regarding good company conduct. It can be compelling to get the opposing expert to agree that certain acts were “what a good company should do,” or “what a good company does.” This can often provide a nice laundry list to help refute plaintiff counsel’s reptile narrative. Finally, and crucially, the lawyer must maintain his or her decorum, credibility and candor throughout the trial. This positions you, at closing, to be a sort of proxy for the company as you discuss the company and the product.
As The Human League wrote in 1988, “I’m only human, of flesh and blood, born to make mistakes.” Recognize that humanization may mean saying “I’m sorry” in so many words, but also pointing out that the facts in your particular case don’t justify punishment for that mistake. And don’t try too hard to make humanization the focal point of your case – you may not be able to call a live company witness at trial in order to humanize the company, and even if you do, that witness may tank. Don’t put too many eggs in that basket.
3. What do you believe is the biggest misconception about trying a products liability case?
When I was growing up painting by the numbers was all the rage. My favorite kits had cool black velvet canvases and subjects like Elvis, unicorns and castles. The resulting product was unoriginal and definitely forgettable.
When trying a products liability case, you can’t just “paint by the numbers.” While you don’t forget what has been done before and you use what is applicable, you and your team collaboratively create a trial story stamped with the unique characteristics of your case and the personality of your team.
Another lawyer once told me that products liability litigation is a good fit for women lawyers. I asked him why. He explained that products cases are more “emotional” and “less complex” than business disputes. I beg to differ. Although cases involving allegations of personal injury require a delicate touch, products liability cases are intellectually demanding. In addition to complex medical and regulatory issues, the nuances of various state statutes can influence trial strategy. Products liability cases are interesting challenges for all trial lawyers.
One big misconception is that, in the face of arguably bad documents or bad emails, you simply cannot call a company witness in your case-in-chief. My view is that it should be a case-by-case analysis and that there should not be a firm rule against calling a company witness under such circumstances.
Avoiding bad documents doesn’t make them read any differently and certainly doesn’t keep them out of the trial. Since these documents are often taken out of context, it can be compelling to take the mischaracterization head-on and demonstrate the bad faith of counsel opposite by arguing at closing that they knew they were misrepresenting the documents.
At a minimum, in a mass tort, you might have counsel opposite seriously consider whether to use that document in the next trial. There are also times when a witness will need to admit that the communication was just wrong or declare that the point of view expressed is not the company’s point of view or was rejected. Finally, the defense lawyer may have to address the documents in closing but point out that they have nothing to do with the actual facts of the case or causation.
4. How do you win the unwinnable trial? Or what is Plan B?
A win can be defined as a plaintiff’s verdict less than the last settlement demand, or as a hard-fought, extended engagement in which both sides work themselves to the bone over the course of weeks or months. I had two very successful plaintiff’s lawyers tell me at the end of a two-month trial, after securing a sizeable plaintiff’s verdict, that they never wanted to try another case against my client again because they were completely exhausted. That trial was “unwinnable,” and a sizeable plaintiff’s verdict was returned. But in the end, our hard work and vigorous effort at trial won the unwinnable trial by discouraging future suits against our client.
To win the unwinnable trial, you must be prepared to take the sting away from the other side. Instead of allowing the other side to surprise the jury by putting on your worst witness or showing your worst company documents, face your weaknesses head on at the beginning of the trial – even as early as voir dire. Don’t allow your opponent to dictate how you present your case.
One of my mentors taught me that there is no trial you cannot win—but there also are no slam dunks in the courthouse. I approach every trial with an expectation to win, but Plan B always involves a fabulous appellate lawyer who helps me protect the record.
An alleged failure-to-warn case can be a difficult case to win because it is so easy for a jury to conclude that the company could have offered more information or stated the risk differently. Just the same, the defense argument has to be that the warning described a specific possible outcome and that the case before the court involves that specifically delineated outcome. Literally arguing that a warning is “adequate” is not very comforting for a jury.
Many cases are unwinnable if the defense accepts the plaintiff’s characterization of the case or parrots the plaintiff’s theme. Look for opportunities to reframe the issues. Argue that the case is about a medicine that has proven to be crucial in addressing a serious health issue or that is innovative, but not without risk. If the case is truly unwinnable from a liability standpoint, then winning must be redefined: prevailing on some counts or securing a reasonable damages award may be a win. So too may be demonstrating to plaintiff’s counsel that the company is willing to fight and will not simply pay an outrageous amount for settlement.
Believe you will win – which is the same for every trial. To believe that, you:
- Know and understand your case, the positives and the negatives.
- Develop common-sense arguments, using the facts and law of your case.
- Spend time considering witness assignments – effectively use trial team member talents.
- Tweak execution based on the uncontrollable things that inevitably occur.
If you are afraid to lose an unwinnable case, somebody else should be handling it. Sometimes a “win” is not a defense verdict, but a number below what plaintiffs demand.
5. Have you received useful feedback from jurors at the end of trial, and if so – what?
One of my favorite questions to ask jurors is what they liked best about the trial. Their answers often include expressions of pride about their role in the process. Many jurors tell me they initially dreaded jury service, but they were pleasantly surprised by the experience. Every time I have the honor of trying a case to a jury, I feel a similar sense of pride. There is something very special about the power of citizens to decide civil disputes. Best of all, they get it right most of the time.
One of the strongest attributes I have tried to develop as a trial attorney is my ability to talk to the jury. Jury feedback has helped me sharpen that skill. Having a friendly and frank conversation with jurors after a trial is one of the most beneficial resources to becoming a great trial attorney. I want jurors to see me as a zealous advocate for my client, but also as a believable human being and not just someone who will say or do anything to win a case.
Two examples: (1) In a failure-to-warn product liability case, where the plaintiff’s central allegation was that the product warning label didn’t contain enough warnings, a juror told me after returning a punitive damages verdict “warnings are nothing but ink on paper – your client could have printed those additional warnings by just typing a few extra words on the paper, but they didn’t do it.” (2) In another product liability case, we created a fantastic closing graphic which beautifully demonstrated that the testimony of the plaintiff’s expert witness contradicted the testimony of all five doctors who treated the plaintiff. After two hours of deliberation, the jury returned a defense verdict. The foreperson of the jury told me afterward that “when we (the jury) saw that graphic during your closing, the lights came on and we realized the plaintiff’s case was a joke.”
The lesson here is never underestimate the power of a single graphic. It’s one thing to hear the testimony over the course of several weeks, but it’s another thing entirely to see it portrayed in a single, punchy graphic.
You know you have won the trust and confidence of the jury if they have a nickname for you… and they tell you. My nickname at one trial was “Shoes.” My trial partner’s nickname was “JR.” This jury was predominantly female and picked up on our narrative that the plaintiff and her husband were not the happily married couple as they portrayed. They noticed that the plaintiff and her husband did not appear close on breaks. And after the plaintiff had testified that she had “terrible, terrible, terrible” pain, the jury picked up on the fact that the plaintiff never stretched or took breaks during the long court days.
I think jurors want to figure out things that lawyers don’t tell them. That’s when they feel the most empowered. Our job is to plant seeds. The most persuasive way we can “water” those seeds is with timelines and graphics. We need to communicate to all types of learners on a jury. I have received the most positive feedback from jurors on timelines and graphics that we were able to use during the trial that helped simplify issues and provide them with a framework to understand the evidence.
It demonstrates that—even with decades of trial experience—I am still learning.