December 29, 2017, Goodell, DeVries, Leech & Dann, LLP hosted a panel discussion with former medical malpractice jurors and the firm’s Medical Malpractice Group. The goal: to refine our trial skills through a discussion with the factfinders themselves—the jurors. These were the takeaways:
Be professional. There may be a time and place in trial for a bombastic performance or an aggressive cross-examination; however, this is the exception rather than the rule. Our jurors took their trials seriously and expected the lawyers to act accordingly. Our jurors preferred the professional style of defense counsel over the eye-rolling and arm-flailing approach of Plaintiff’s counsel. As one of our jurors put it, this is “not TV.”
Further, sincerity shows. Our jurors appreciated the self-effacing manner of defense counsel who, despite his best efforts, could not get his AV equipment to work, over the Plaintiff’s attorney’s insincere sneering to highlight—what she believed to be—incredible testimony. The lesson: if it does not come naturally to you in trial, do not do it.
One of your jobs in trial is to persuade. To persuade, you must have a rapport with your jury. To develop rapport, your jury must find you credible. You are onstage from the moment your jurors enter the courtroom for voir dire, through trial and until they return with their verdict. This includes those moments outside the courtroom when your jurors will inevitably see you in courthouse hallways, elevators, parking garages, and even restrooms. The takeaway: act professionally at all times.
Moreover, the layout of your courtroom may matter. Per one of our jurors, he and his fellow jurors looked through the Plaintiff’s trial table to see the witness stand because of the layout of the courtroom. Thus, when the Plaintiff’s attorneys spoke to each other during trial it was distracting. The jurors had difficulty hearing the witnesses. Worse, when the Plaintiff’s attorneys looked at their phones during trial, the jurors took note
Our jurors, interestingly, made their ultimate decisions before closing arguments. This means your opening statement, direct examinations, cross examinations, and closing argument—and your behavior throughout—all matter because you do not know when your jurors will decide your case. Master each stage of trial and prepare each accordingly.
Opening statements were particularly helpful to our jurors, providing them with, in their words, a “road map” of what they would hear in trial. Our jurors found it helpful to hear the pertinent medicine and anatomy in opening statements and later learn about it from the experts in trial. Teaching jurors new and interesting information is key. It keeps them engaged, and they enjoy it.
In closing arguments, our jurors found counsel’s PowerPoint slides helpful where they recapped the pertinent medicine and anatomy. They did not like slides that numerically laid out the issues, and they did not appreciate it when counsel unnecessarily and repetitiously labored on and on in closing argument. After week(s) long trials, they get it. Get in and get out.
Finally, do not forget about your trial themes. “There is a risk associated with any surgery. Just because there was a complication, does not mean the doctor did anything wrong.” This theme resonated with one of our jurors and she used it to convince other jurors to side with the defense. If appropriate, consider using it early and often. For example, all experts will agree when asked in trial, “there is a risk associated with every surgery.” So, talk about it in opening, let your jury hear it from the experts in trial, and then succinctly bring the point home in close. And, above all, be professional because, in the words of Edward R. Murrow, “to be persuasive we must be believable; to be believable we must be credible; to be credible we must be truthful. It is as simple as that.”