How to Work in Your Trial Strategy with Your Client’s Testimony [Ep 137]
In this episode, Elizabeth goes into crafting authentic client testimonies to enhance courtroom success. She emphasizes avoiding scripted testimonies that erode credibility and offers strategies to naturally integrate case themes into client testimonies. Elizabeth outlines three key steps: avoid making clients memorize phrases, review their past statements, and conduct prep sessions to help them organize thoughts on damages or liability. This approach ensures that testimonies subtly echo case themes, maintaining authenticity and strengthening trial strategies.
In this episode, you will hear:
- Crafting authentic and impactful client testimonies for courtroom success
- Avoiding pitfalls of scripted testimonies to maintain credibility
- Integrating case themes into all trial stages, from jury selection to opening statements
- Strategies for making client testimonies resonate with jurors
- Emphasizing authenticity and emotional connection in witness preparation
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Supporting Resources:
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Episode 131: What is Trial Strategy and What it is NOT
Episode Transcript:
Elizabeth Larrick (00:02.604) Do you ever wish your client would give testimony at trial that echoed your case themes? You are not alone. Most trial lawyers want every piece of their trial to echo or repeat
the case themes and trial strategy. Welcome to Trial Lawyer Prep. I’m your host, Elizabeth Larrick, and thank you for joining me today. This episode combines two of my favorite topics, witness prep and trial strategy, which by the way, if you are struggling with a client who is having difficulty, having clear testimony for deposition or trial, book a chat with me and let’s see if how I can help. Now,
You want your client to echo those case themes, give some great testimony that also kind of assists the lift in the case for those things. And trust me, there is a right way and a wrong way to do this. So let’s talk a little bit about the wrong way, which would be having your client memorize language or phrases.
So they’re echoing back the exact same thing or scripting questions and having them answer in a very scripted way. Let’s give an example, which would be if you are a follower of the edge or reptile mantra, one of the questions that’s asked in voir dire is what is your passion? Now, I don’t have any problem with this question. It’s great. But what ends up happening sometimes is lawyers can get a little lazy.
Elizabeth Larrick (02:19.713)
And instead of coming up with a different way to ask that question, they have the exact same question to their client to try and like weave that theme in there. It is really obvious to the jurors what you are trying to do. So why would that not maybe work? And that would be number one, it’s very robotic. It’s very scripted. It’s very mechanical.
And what happens is number two, the jury just doesn’t believe it at all. They know that it’s scripted and not persuasive, which then leads me to the last point of losing credibility, which is huge for your clients. They already have the opposite end of the belief in them because they’re bringing this lawsuit. They’re taking people away from their lives. And most jurors are a little upset about that. And so they judge our clients scrupulously.
And so we go for these kinds of low level hanging fruit, it really causes them to lose credibility, which is extremely difficult for them to get back. So let’s talk about the right way to weave trial themes, trial strategy into your client testimony. Number one, we gotta have a trial strategy or case theme. So if you don’t have one of those, that’s okay. Jump back to episode 131, where we talk about what
trial strategy is and is not. And hopefully that will help clarify some things. So once you get that in order and you know, all right, here’s where the order of proof is going to be. Here’s how we’re going to weave this theme into opening and jury selection and through these witnesses. And so you want to ask yourself right out the gate, where does the client fit in? What is a topic that they can actually take on their plate, testify about?
and do so in a way that actually does echo your case themes. So thinking about, let’s take liability first. There are cases out there where it would be really difficult for the client to add to a case theme or trial strategy when it came to liability because liability requires expert testimony. Maybe it’s a product liability case, maybe it’s medical malpractice. However, a place where I find it is helpful for clients to testify when it comes to strategy,
Elizabeth Larrick (04:39.297)
on liability is rules. So car wrecks are a great example here. We have rules of the road, but there are rules pretty much in every case. And there are things which I would call expectations that our jurors will have of our clients. so liability and rules are a great way to pair those things together when the client gets on the stand. Let’s turn then to damages. Typically people will have a damages theme. You’ll have before and after witnesses along with your client who are gonna testify.
And there are things definitely that the client must tackle on damages. However, sometimes it can be done in a way that will echo your theme. My example would be if betrayal is one of the themes that you have in your case and having your client testify about the trust and examples of that trust and how it led to blind trust. And then again, having the rug pulled off underneath them.
There are great ways to weave in your case themes, thinking about liability and damages. But what you want to do on this first step is just see where is it possible? Where do they fit in? And maybe they’re not the best witness for fitting in the theme, either on liability or damages. So think about that. Get your little bucket. Okay, where can they help on liability and where can they help on damages? And the next thing to do is to step two, which would be, let’s go see what they say.
meaning let’s check the deposition. How did they testify already around these themes? If at all, sometimes they don’t at all. And then where in our prep sessions can I designate some time is to sit and listen to them talk through some questions that you may have for them. And so in this second part of just really seeing what they’ve said and then listening to them, like learning their language and how they actually explain and have stories,
I like to use an organizational chart. I find it really helpful because it helps me be able to listen, right? And they have the knowledge that they’ve got to fill this chart out together. But basically we just take a giant notepad, we divide it into four different squares and we walk through each square looking at, okay, what are examples of either it’s the physical injuries or maybe the mental injuries that have
Elizabeth Larrick (07:00.239)
kind of change things, examples of that. And the four squares, which would be home and family, social, work and me. And as we go through and your job is a lawyer’s just to ask questions again, how has this impacted? And just listening and writing up those examples. The hope is that you’ll have a great page that is filled full of lots of examples. And then you can in that last step, right? Step number three of trying to work in
the case themes through the client testimony, is to sit down and really craft those questions very well. And sometimes they’re very simple questions. They’re not long-winded questions, they’re not kind of the wind up questions. They’re just really simple questions. And most of the time it’s really about signposting to help the client know where you’re going, but also have the jury follow you. But having done the work of listening to them in that second step,
they will feel very comfortable knowing about what you want them to say. That’s generally the number one thing people always tell me, what do want me to say on the stand? You want it to be normal, natural, you want to be very conversational. And that’s why doing this, working in your case theme does take some time because you want to feel really confident in your case theme and your trial strategy.
So timing of this preparation really comes very close to the time of actual trial. Because at that point, maybe emotions and limiting have been ruled on. You’ve heard a lot of the themes that will be coming out of the defense. You know really well what your other testimony is and your opening statement. And then being able to do this work with your client will really help you be very clear about what place that they may take on their testimony as far as helping the theme or echoing.
and where they won’t help. Maybe you have other witnesses that can help and tell different stories or fit in different ways with your case themes. So you may be thinking, well, what if I go through these three steps and it doesn’t work? Meaning there’s nothing that I can get the client to, you know, testify along with my case theme. Well, sometimes I always say, let’s go back to the drawing board then and let’s think about it. What does the jury need to hear? What does a client already have to say?
Elizabeth Larrick (09:23.567)
It’s not a bad thing if there can’t be any overlap between case themes and case strategies. Typically there is, it’s just having to go back through and think about it in a different way, either through the jury’s perspective or working a little more on your questions. Or one the things I always suggest too is looking to other witnesses that maybe are testifying more clearly or have a better memory. There’s lots of memory issues sometimes with our injury clients. And so that significantly helps go back and rework
but also, I would say two main tips here, which was number one, try to avoid putting a lot of pressure on your client when it comes to case themes and strategy. Typically, I don’t even mention any of those things to a client because the thought of even walking to a courtroom and testifying for a group of people is terrifying. The risk that they are already taking in bringing their case to trial is already overwhelming to them. To try and add another thing that they must
understand, educate themselves, and then feel pressure to fit in is too much, right? So again, this is why my second tip is subtlety here. We don’t want to be hitting anybody over the head with our case themes over and over and over again. And so you have to be very subtle in how you work these things through and making sure that it works very naturally with your client and how they think and how the information is stored in their minds. But yet you’re pulling out in a way so the jury understands. All right. So
If you’re thinking, have this trial coming up, but I’ve got somebody who I don’t communicate well with, or maybe they would be challenging to try and understand where they could actually add on a case theme, the link in the show notes to book a free call with me and see if I can help with that. All right, let’s recap really quickly. Number one, please don’t make your client memorize words or phrases in order to echo the themes you have in your case. Number two, figure out what they’ve already said.
and then listen to them in a prep session and help them organize some of the things for damage and disreliability where you can then craft questions that subtly echo the themes that you have in your case. And again, if you’re thinking, I’m not even sure I have a theme or a trial strategy, visit that episode 131, link will be in the show notes. All right, thanks so much for tuning in.