What is Trial Strategy and What it is NOT for Trial Lawyers [Ep 131]
Join Elizabeth Larrick as she shares insights on developing trial strategies that resonate with juries. This episode is designed for trial lawyers seeking to enhance their courtroom success by focusing on a comprehensive strategy rather than just meeting deadlines or relying on emotional narratives. Elizabeth delves into the importance of using focus groups to anticipate jury reactions and prepare multiple contingency plans for trial preparation.
Gain tips on crafting compelling narratives, prioritizing crucial information, and employing strategic questioning. Learn how to sequence witnesses and evidence to streamline your courtroom presentation. Elizabeth emphasizes the significance of flexibility in your plans to handle unexpected challenges.
In this episode, you will hear:
- Understanding trial strategy beyond deadlines and persuasive elements
- Importance of a cohesive, big-picture plan considering the jury’s perspective
- Utilizing focus groups to predict jury reactions and develop contingency plans
- Crafting memorable and clear narratives through effective communication
- Strategic sequencing of witnesses and evidence to streamline presentations
- Simplifying and prioritizing information for impactful trial presentations
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Supporting Resources:
Be sure to check out the Michelle Gessner episodes to hear about her trial strategy formulated from the focus groups.
Episode Credits
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Episode Transcript:
Hello, and welcome back to the podcast. I’m your host Elizabeth Larrick, and we have a new episode today talking about trial strategy, what it is.
and what it is not. This episode is prepared for you so that you can be able to clearly [00:01:00] assess what you need for your upcoming trial and to create an overall plan of action so that everybody on the team can stay focused on the targets in order to get that win on the verdict form. and avoid getting caught in the weeds.
You’re getting ready for trial. Maybe it’s 30 days out. Maybe it’s two weeks out. Maybe you’ve got 60 days or more. Either way, you may be sitting down and asking yourself, okay, how do we win this thing? And what can happen is we get super caught up in the deadlines and the motions and the last minute questions about settlement.
And we can sometimes push things like strategy aside. And so what trial strategy is not, is meeting your deadlines. It’s not doing those depo line designations or writing out those motions in Lemony, right? That’s totally in the weeds, right? All those [00:02:00] things are necessary and needed, but those are all kind of things that sometimes we use forms for, or sometimes we may or may not win those, right?
Depo designations, judge may decide something different. Motions in limine, judge could decide something different. And we don’t necessarily want to create a trial strategy around things, meaning testimony or evidence that may or may not come in. Because if we create an entire strategy around one piece of testimony or one piece of evidence, And then it doesn’t happen.
We have to really, really scramble. And definitely when we talk about trial strategy, we want to have plan A, plan B, plan C. Okay, that’s just being a good trial lawyer, making sure we can get everything in. But trial strategy is not sitting down to do those DEPA line designations and that, you know, jury instruction form, or worrying about how to fix one witness, or, you know, Really, what I see sometimes as people think trial strategy is basically how [00:03:00] can I talk more persuasively?
How can I really rest on things that are in the case, meaning maybe it’s a sympathetic picture, or maybe it’s really sad stories, or really egregious injuries. Those things are definitely part of strategy, but they are not the entire strategy. And unfortunately, I see that happen at times where people just believe, well, this is powerful enough.
I don’t need a strategy for anything else. This is all I need. This is just as persuasive as it’s going to get. People are just going to automatically roll over when they see this picture, or they hear the sad story, or they. Understand this complicated medical surgery, people are way more complicated than that.
And what I want you to do is be able to sit down no matter where you are with your experience, no matter where you are with your trial and getting prepared and sit down to look at creating an overall cohesive plan of action to win. And making it simple on you and your team and so that you won’t get [00:04:00] distracted along the way.
So, really, what is trial strategy? Okay, well, strategy overall, like we talked about, is a plan of action to achieve a win or achieve an overall goal. So, it’s really this, this big, overarching, cohesive, think about like a 30, 000 foot view. Okay, because again, if we get down in the weeds about this piece of testimony or this, like, We’re missing the strategy.
Okay. We’re too far in the weeds. You need to pull all the way back. And trial strategy really comes from a compilation of your focus groups because trial strategy really sits down and looks at things through the point of view of the jury. All right. And always thinking through, okay, if they see this picture, if they see this testimony from my client, how are they going to perceive that?
And If you’ve done focus groups, obviously you can compile all those together. If you’ve not done focus groups, you can still sit down and look at it and say, okay, [00:05:00] what’s the point of view here of the jury? Not me, not what I think about it, but what they’re going to think and how they’re going to perceive it.
And that’s really a big key point of your strategy is just making sure to look at it. It’s like, okay, how are they going? To see this, are they going to be just overall annoyed? Are they going to be overall confused? And how do we fix that? Right? Because that’s where you really want to be able to come in with your trial strategy and say, okay, knowing what I know about this entire file, which is a lot of information, what are the top three things that.
We have to win that. We have to get in so that we can get that W on the verdict form. And how do we sequence the information that we have our witnesses, our evidence, our documents to get a W again on that jury verdict? Because we can. Provide all the information to someone to make a decision, and they maybe [00:06:00] don’t know how to sequence things well, or maybe they don’t know how to sequence things.
Well, a jury doesn’t have that luxury. They have to sit and they have to listen and take in a lot of information in a format that is very, very foreign to 99 percent of us. Okay, because we are Okay. in that learning environment anymore. Most of us don’t go to school every day or sit down and listen to a lecture.
And that’s really what jurors have to do. They have to sit down, go from zero to 60 on your case, and have to put it all together. And if we don’t do our job to give it the best sequence, the best order, We are really missing out on a big piece of strategy because we get to go first, right? So we have this large primacy effect where we get to set the stage.
And one of those things that makes a huge difference for. And so that is one of the biggest pieces of trial [00:07:00] strategy is really thinking through your sequence of evidence. Best example we can talk about is here recently with my episode interview with Michelle Gessner and episodes 128 and 129, where she learned from her focus groups that.
Number one had to be those H. R. notes, right? That was her number one key point. Number one piece of evidence. And so she had to make sure and get that out and in front of them very quickly and clearly. And she learned that from her focus groups. And if you’ll remember again from that episode or those two episodes, she did small bites at focus groups.
She did one hour here and one hour there and one over there. So there weren’t these really long mock juries or really long focus groups. That allowed her to be able to go back and test again. And in working with Michelle, we really used the time in between focus groups to look at our strategy. Is it working?
Is it not working? [00:08:00] How do we retest this? What’s missing, right? I mean, what are we missing here? Because again, we can all get stuck in the weeds if we feel really good about something and forget to test other things. And that leads me to the other part of strategy, which is simplifying, removing, cutting information, getting down to the simplest, clearest case that you possibly can.
What do you need to get rid of, right? Because we want to make sure that we can be quick about our trials. Joe Fried talks about having quick trials, right? Folks, have Not a lot of patients. If you’ve been to the courthouse lately, people have very, very little patience. And so we want to make sure that we can get to the point as quickly as possible.
And that’s really the next important key. That’s the next. Key essential in trial strategy communication, how are you going to communicate these key points thinking through your witnesses, right? Thinking through [00:09:00] questions in direct exam, thinking through cross exam, right? And how can we continue to teach them this point through visual aids?
Maybe it’s even just writing it on a notepad, having a checklist, right? What images can we use? What metaphors can we pair with our key points? Maybe there are pictures in the case, maybe there aren’t. Maybe there are pictures we can draw, right? But we always want to make sure that we’re remembering how can we teach them and make it sticky.
May it get stick in there. Because again, they’re going to get a lot of information and we want to make sure that we don’t give them too much, confuse them, all right, or give them something that doesn’t go anywhere. That’s one of the key things that I always talk to lawyers about when we talk about opening statements and we’re even just giving a presentation with our focus groups.
And that is you gave them a piece of information and they didn’t know where to put it. And what happens is sometimes our brain just holds onto it to keep trying to put it somewhere. And we waste a lot of energy and a lot of time, like, and our jurors still [00:10:00] like, where did this go? Right? You’ll hear that in your focus group feedback.
Where did this go? Well, I heard this, but I never heard where, like, what was the resolution of that? And you’re thinking, we don’t need to be talking about that. That is how much people will grab ahold of something if it doesn’t fit. So always make sure that. When you are communicating, you have the essentials and ditch the rest, okay?
Because sometimes we can pick what we need for our opening statement and we can save the rest for cross exam. We can save the rest for direct exam. There are a lot of things in our cases that need more explanation than we can give in an opening statement. And that’s another thing that you can really gain from doing focus groups is learning, Oh.
We didn’t give him enough information for that, so let’s save that. Maybe that’s for a direct exam. Or, you know what, that actually needs to be paired with this document and this visual aid, right? Okay, well then it needs more explanation, then let’s take out an opening statement, because we just really don’t want to confuse anybody right off the [00:11:00] bat.
Because if we make things simple, right, then we’re, we’re keying in on our cognitive ease, our brain shortcuts. That can be made versus if we present something that’s very confusing, it looks very complicated, our brains are naturally just going to kind of, it’s going to resist that because we’re going to try and making it work harder than it already is.
All right. So thinking through trial strategy, here are a couple of questions that you can sit down and think about, write it out, round table it with, you know, folks on your team who are going to be trying the case with you. But I found that these couple of questions really kind of help us sit down and create at least a little bit of a strategy so we can stay on point when we get into the courtroom.
And that is number one, how will the jury perceive my case? Number two, what is the best sequence of witnesses and documents evidence for the jury? Number three, what am I missing that the jury is gonna hate? What am I missing that the jury would love? Number four, how can I [00:12:00] teach the jury quickly and efficiently?
Is that with a visual aid, a checklist, using a notepad, metaphors, words? And number five, what can I cut out of my case to make it clear? And simple. What’s the fluff that we don’t even need? All right. So, sit down, do a little trial strategy, see if it helps, right? Because we want to make sure that we’re using all of our information from our focus groups, okay?
If you’re curious about how to squeeze as much as we can out of our focus group, go back and listen to episode 130 where we talk about maximizing our focus group feedback and ways to do that. And again, even if you haven’t done focus groups, right, you can sit down and ask these questions and look at you, look at your file, and be able to say, okay, I can still create a strategy here, I can still come up with the best sequence of evidence, and I will tell you, the earlier you can do this, the easier it will be [00:13:00] on witness scheduling.
Okay, sometimes I see a pitfall if people don’t do this particular thought process. And then it just comes down to, well, Betsy’s available only on Tuesdays and Dr. So and so’s only can do Thursdays. And you kind of have this mishmash where you’re not putting together the best sequence of evidence. You’re just throwing together availability.
And when things are out of order, It’s really hard for the jury. You can say that. We’re going out of order. Okay, great. You know that. The judge understands. The defense counsel, the jury is like, what do you mean out of order? Because they don’t know, like, they don’t know what your order is. Okay. Everybody else in the room does, but they don’t.
So if you can do this early, then you can really sit down and think, okay, I really got to have this person first. Okay. They are key. I got to have them go first. And if it’s not a possibility, or. If, again, going back to listening to Michelle Gessner in her interview, one of the key persons she wanted to go first was going to be a defense witness.
[00:14:00] And she didn’t know if she was going to be available on day one. So she created a plan B. And plan B was still important and it laid the foundation. But of course, plan A would have been to have Art, that defense witness, go first. But it didn’t actually work out. So she had plan B, which was, let’s lay a foundation here.
Just as important, we’ve already got out what we need to get out in opening say, but we’re going to get to the good, good juicy stuff, but laying that foundation would allow a little bit more time before we get to our essential point that she needed for her trial. So, plan A, plan B, right, to allow some flexibility, but to also know that you’re putting together the best sequence possible for your trial strategy.
All right. I will put a link in the show notes to episodes 129 for Michelle Gessner. If you haven’t listened to those yet, they are great. She talks about her focus groups and putting things together for her trial for her big verdict against Wells Fargo. And if you didn’t know, I actually have a trial lawyer prep newsletter that runs once a month to [00:15:00] your email inbox.
If you’re curious and want to join, please look at the link in the show notes for that as well. It’s also at Larrick law firm. com slash connect. All right. Thank you so much for tuning in and until next time, thank you.