Trial Preparation: Zooming out to see the Jury’s Perspective [Ep 135]
In this episode of Trial Lawyer Prep, host Elizabeth Larrick presents a structured approach to mastering trial preparation. She emphasizes starting with a comprehensive review of your case file, scrutinizing key documents like depositions and expert reports to identify core issues in liability and damages. This initial step involves crafting two crucial lists to streamline your strategy: one for liability and one for damages, ensuring you are aware of potential pitfalls and ready to advocate effectively in the courtroom.
The second step is to evaluate your case through the lens of a juror, focusing on worst-case scenarios and simplifying complex issues into clear yes-or-no decisions. This perspective helps in assessing the risks and understanding what aspects need reinforcement. Finally, Elizabeth discusses strategies for fixing or neutralizing any identified weaknesses, whether by gathering additional evidence, reconsidering claims, or adjusting your trial strategy. By following these steps, trial lawyers can enhance their preparation, connect better with juries, and confidently navigate courtroom challenges.
In this episode, you will hear:
- Importance of a comprehensive case file review
- Crafting liability and damages lists to identify potential issues
- Evaluating trial risks through a juror’s worst-case scenario lens
- Techniques for fixing or neutralizing problematic issues
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Supporting Resources:
Need that list of books to get your brain excited about trial prep? Go to Episode 134.
Episode Transcript:
Elizabeth Larrick (00:02.604)
Hello, and welcome back to the podcast. I’m your host, Elizabeth Leric, and we are going to talk all things trial prep strategy, focus groups. But today’s episode, I want to talk about
zooming out to get our trial preparation started. And I know that it can be overwhelming and our brains can really kind of sometimes exaggerate things, we’re getting ready for trial prep and we can lose sight of things as well. So what I want to do is kind of walk through my process that I go through with folks thinking through a trial strategy. And it’s a three-step process. It can take a little bit of time, but I do think that this
will significantly help you in your trial preparation. So let me just jump right in because I know we don’t have a lot of time and I wanted to get you this information. Number one, the place where I always start when I’m gonna look at trial prep and zooming out to get the jury’s perspective is I have to start with doing an overview of the file. And that just includes reading kind of the main depositions, always starting with what was the last mediation statement?
and reading through those to see where the points were that we were making and then go through depositions, read through the medical records, just do an overview of some of those expert reports, but really go through kind of the file itself. And this can include focus groups if you’ve done those. If it’s not, that’s okay. But what you really want to be doing is when you’re making this overview of the file, what I normally do is I kind of have two lists.
Elizabeth Larrick (02:17.9)
One is liability and one is damages. And I kind of list the issues or concerns. So let me give you some examples. Thinking through liability and looking through a file, I always want to know, is it really clear or are there any kind of blurry gray issues? For example, looking through a file that has a video recording of the crash or a partial view. That’s typically what we end up with as a partial view. And what does that view compare with what the
defendant’s deposition was? And does that make it really clear? Is there an issue? And so recently in looking through and helping a client get ready for trial preparation and looking at trying to put together some strategy for them, their position was it was abundantly clear. But when I watched the video and I looked at that testimony, there was a lot of gray area. It was kind of in the middle. There wasn’t a clear…
Yes, they were taking responsibility, but there wasn’t a clear no. You know, there wasn’t like a position here we could maybe polarize. So it’s really something gray in the middle. So I put that on our list for liability. And again, that’s kind of one of those things that we sometimes feel really confident about. We go back and look at it, think, that was kind of in the gray. So I’m going to put that down on my list of concerns. Going to our damages side again, thinking we’re making two different lists as we’re going through our overview of the file. You know, here, just looking at, so
Let’s look at that life care plan again. Let’s look at where my client is right now. Is that really matching up? And again, an example that I have here recently is life care plan projects a future surgery 20 years out. Yeah, but what’s happening right now with the client. So that may be one of those things that you list on there. Again, when we’re doing this overview of the file, we’re just looking at issues and concerns so that when we jump to, well, we’re doing this task. Let me not jump ahead.
When we’re doing this task, what you can find is sometimes you have really long lists and this really then kind of becomes like, okay, if I have this many issues, this many concerns, is this really a case that I need to try? Do I need to work a little bit harder for settlement? Or what you may find is, okay, I still have some work to do, but I feel pretty confident. And so when you have those lists after you’ve gone through the file, and again, this can take some time, an hour, two hours, it depends on how large the file is.
Elizabeth Larrick (04:34.372)
that you’re going through, but making those lists is really helpful just going back through that file and get your fingers back in there because then the second step is basically looking at it through the lens of a juror. Now, what I want you to envision though is a worst case scenario, the worst day in court and having a juror look at this and say, it yes or is it no? Putting it in a very clear, is it black and is it white? Because what you want to do is you want to be able to know what is the worst risk that we have here and if going through
this trial and I have the worst day in court, what is that juror going to say? Are they going to look at this issue and say like, no, that liability? No, that’s not with you. Or they’re going to say, yes, yes. So you really want to be into a place where you’re looking at it through the eyes of the jury in a worst case scenario. Because really, in reality, jurors are forced into really confusing jury questions that seem extremely black and white, right? We’ve got a lot of wording like occurrence in question and proximate cause.
And so really sometimes it does just come down to like a vote of yes or no. And you also want in this process to remove any bravado, any thoughts that, my closing is going to sway people or cross exam will add on this point, like, no, I really want you to put this into a vacuum to say yes or no. Based on the testimony, based on the evidence, do I get a yes or a no on this issue? And then sometimes you just go back and rank it, meaning like, where does this really, how detrimental would this really be in the file?
Some of them are small, they’re just small things and that’s okay. So then you look at, okay, so if I have a yes or a no on these issues, going to my no’s, are there things that I can fix or there are ways to neutralize this if it is an issue that you know is gonna be detrimental? And so then you kind of make a list like, okay, how are ways we can fix or neutralize this? Maybe we need to go find more before and afters. Maybe we need to go back to our client and get more answers, more understanding.
Maybe we need to go take a deposition and shore up that position of the police and the police report to clarify testimony, go back to that treating doctor to get them to really give you something concrete so that you can feel good. Okay, we’ve put that issue aside. Maybe it’s you actually need to drop a claim altogether to just avoid that evidence coming in altogether. Maybe it’s just you’ve got a really low number on lost wages, and it’s gonna drag things down. Or maybe it just…
Elizabeth Larrick (06:59.11)
they really didn’t miss too much of work. So maybe we need to go and drop that again to make things clear and keep your eye on the prize. Sometimes we have claims we put in and the evidence is kind of wishy-washy. Thinking about here in Texas, we have gross negligence. Some of you all have the same thing where you may be just under a different name, where there’s kind clear and convincing evidence that somebody went ahead and did some action that clearly would have jeopardized and put people in danger.
that’s kind of a hard burden you really need to look at, like, what is our judge going to think and what is the information we have? And again, kind of going back to the example I mentioned earlier, a case where there’s a crash, it’s partially on video, and we have a very wishy-washy position from the defendant. Now, from one perspective of the lawyer was, this is gross. We’ve got it. It’s clear from the testimony. But in reading it and taking our juror of our worst case scenario, it was like, no, you don’t have this. So do we need to keep it in there?
Is it going to cause more confusion or just do we need to drop it? Another thing is to, okay, we have this thing, do we need to take a real strong stance in opening or in jury selection and develop some questions for what year? Maybe there’s an opportunity to do emotion and limiting on some of these things. And maybe it just needs a clear timeline. Like some of these issues can be resolved with just a little more work and some of them are going to be major and really cause you some pause about whether to go or trial.
or not. And that’s part of trial prep. And so when I encourage you all to do this three-step process when you’re far enough out that you have time to do emotion and limiting, you have time to take that extra deposition if you need to go get those folks, those before and afters, or you have time if you need to just turn the ship and do settlement discussions instead. And again, that’s all kind of part of trial prep and making sure. this is an easy three-step process. It is simple.
on purpose is time consuming, yes, but putting things in this vacuum and looking at it from the jurors perspective really will help you figure out, okay, is this a yes or no? And then how can I fix or neutralize this? And then maybe I just need to go back to the drawing board and talk about settlement again. So wrapping this whole episode up by using our jurors lens, right? Our worst case scenario juror, you can better assess the risk and also the amount of work that is needed. And
Elizabeth Larrick (09:21.466)
If you do this far enough out, you can really kind of look at what is a strategy that will work best. We talked a little bit about some books that you could read to kind of get your mind going and excited about trial strategy. That was our last episode and I will link to it in the show notes because there are some really great places out there for polarizing people’s positions, defense positions. There are some really great
medical illustrationists, there are some good timeline, there are things that can be done with what you have left on your list of concerns that can really be helpful. And sometimes with enough time, you you can easily overcome it and get really excited again about going to trial. Okay, I hope this episode was helpful. Again, thinking about zooming out to get your trial preparation and a easy three steps. Number one, do that overview, make those two lists.
liability and damages, list of concerns or worries. And then number two, taking those lists and putting them through that worst case scenario juror of a yes or a no on those issues. And then finally, can we fix or neutralize these issues knowing that they may be a no for our worst case scenario jurors. All right. Thank you so much for tuning in. This concludes our episode. If you enjoy it, please rate or review on your favorite platform. And if you want to hear more from me,
Join the email list, trial lawyer prep newsletter. The link for that will also be in the show notes. And this episode will also be airing on YouTube if you would rather have a video. Thanks so much.