By Warren Savage, Lawyers Mutual
As I rock on my porch muttering while watching you kids in my front yard, I remember my dewy days as a green lawyer trying my first few auto accident trials. Being fortunate to start as an associate in the warm embrace of Bailey & Dixon in the ‘90’s, I was given my own small auto accident cases to prepare and try along with tons of go-bys, outlines, checklists, briefs, forms, and trial notebooks that the firm had developed through decades of trial practice. The partners and senior associates freely shared their time and wisdom and assured me that if I put in the hours and followed their advice I would be as well-prepared as possible for my first trials. Over the next two years, I tried six or seven jury trials and learned that all that firm support and resources had only helped me to get to the courthouse door. Once inside, I learned that each civil jury trial is a living breathing organism with a mind of its own having tentacles, rabbits, and red herrings. Here are ten things I experienced during those early days of trial practice that have seared themselves in my brain for better or worse. May these stories and observations provide you with guidance and amusement.
1) Jury selection is what the trial judge says it is.
With loads of questions I had prepared to ask in jury voir dire, I appeared at calendar call one Monday morning in Johnston County with the second case on the calendar that week. The visiting judge told all the attorneys with trials scheduled that he planned to try three or four cases and we should be ready at a moment’s notice to start our cases when the TCA called. Late Monday afternoon, the call came in that my case would start the first thing Tuesday morning. When I arrived the trial judge was in the middle of the charge conference with the attorneys in the trial that had started the previous day. The judge informed us all that, while he finished up with the first trial, the plaintiff’s attorney and I should go in the adjoining courtroom and “work together” to pick a jury for our trial that would start immediately after closing arguments in the first trial while that jury was deliberating. There would be no judge to rule on challenges for cause or objections during our voir dire, so the plaintiff’s attorney and I agreed that if any potential jurors said that they did not want to serve for whatever reason, we would let them go. All other challenges would count towards our allotted eight peremptory challenges. When the panel was passed to me, I asked whether any of the jurors knew the local plaintiff’s attorney or her partner. Six people raised their hands saying they or a family member had been represented by the local firm in past personal injury cases, and all six were willing to serve as jurors. Without the ability to challenge any of them for cause, I was forced to burn six peremptory challenges on my very first question.
2) Video depositions can be mind-numbingly dull at trial.
In my very first trial, the plaintiff was a teenager who claimed to have been injured in a low impact auto accident resulting in excruciating chronic headaches and neck pain. Having obtained the plaintiff’s school nursing records in discovery, they showed that the plaintiff had regularly visited his school nurse’s office once or twice a week for the two years prior to the auto accident complaining of the same headaches he sought compensation for in my case. Armed for bear, I went into the video trial deposition of the plaintiff’s treating physician and meticulously walked him through each of the nurse’s notes. Ultimately the doctor would not back off of his causation opinion, but did admit that it would be very hard to differentiate the plaintiff’s prior headaches from his headaches after the accident. I confirmed that my questions and the doctor’s answers were accurately recorded in the deposition transcript and then watched as the video was played for the jury at trial. As the recording played, I had the horrible realization that most of my questions were halting, monotone, and meandering. The jurors were either asleep or openly hostile to me and the videotape as I just kept asking the same question over and over about the school nurse’s notes. The only thing that rescued me was the plaintiff attorney’s thirty minute re-direct at the end of which the juror’s disgust was audible in groans and snores.
3) You can’t script everything.
While I mostly defended cases as insurance defense counsel, I occasionally had the pleasure of representing a plaintiff in defending a counterclaim asserted by a defendant. In one early trial in Harnett County District Court, I acted as co-counsel with the plaintiff’s personal injury attorney in a case with disputed liability. The accident report prepared by the investigating officer had originally attributed fault to the defendant driver. However, at the insistence of the defendant, the officer revisited the scene two days later and then supplemented his accident report to state that the accident was the plaintiff’s fault. The only witness to the accident was an adult passenger in my client’s car who we had subpoenaed to appear at the trial to testify for the plaintiff. With trial proceeding more briskly than my co-counsel and I had anticipated, we realized that it was 4 pm and our final witness, the subpoenaed passenger, was not in the courtroom. I was terrified that the trial judge was going to force us to close the plaintiff’s case without the passenger’s testimony, and then start the defendant’s case with her first witness, the investigating officer who had faulted our client in the accident report. Instead, my fearless co-counsel took the bull by the horns and called the investigating officer in our case knowing that the officer’s testimony would not be helpful to our client. With deft bobbing and weaving, she questioned the officer through the rest of the day in order to stall until the next morning when we escorted the passenger into the courtroom to get his critical testimony about the accident. My co-counsel’s improvisation on the fly saved the day and won our client the case.
4) Jurors notice the tiny things.
Juries want to do good things for good people. Towards that end, jurors are constantly looking for clues to the character of the parties and the attorneys during trial. In one of my early defense cases where liability was admitted, the plaintiff testified at length about his injuries including a brief description of how hard it was to give his son piggy back rides after the accident. Thinking nothing of that testimony, I struggled to cross examine the plaintiff about the holes and inconsistencies in his medical records in an effort to convey to the jury that the plaintiff was a malingerer. After only five minutes of deliberations, the jury came back with a verdict of “no injury.” I was flabbergasted and questioned several jurors in the parking lot afterwards about how they reached such a conclusive verdict in such a short time. The jurors said that they noticed that the plaintiff’s son was 15 years old. Either the plaintiff was lying about the piggy back rides, or he had injured himself by giving piggy back rides to a 150 pound teenage boy.
5) How you interact with your client in front of the jury matters.
Jurors don’t just notice the tiny things in testimony, they also look for signals in your body language. If you appear not to like your client, the jury is likely to do the same. Jury voir dire is the first time that most jurors will see you and your client together, and the jury will notice if you never confer with your client or treat him as part of the trial team. During breaks in trial at the courthouse, jurors will notice if you ignore your client or leave them to fend for themselves while disappearing back to your office or a conference room. In lunch restaurants near the courthouse, jurors might draw negative inferences if they notice you eating at a table by yourself while your client eats separately. Show genuine interest in your client as a person and value his input during trial, and hopefully jurors will follow your example.
6) Jurors will get bored and uncomfortable during a long trial.
If you are in a long trial, jurors will hold it against the lawyers if they think their time is being wasted by legal machinations they don’t understand. Objections, sidebars, and motions heard outside the presence of the jury will inevitably accumulate over the course of the long trial giving the appearance to jurors that they are being taken for granted or otherwise ignored. Judges often recognize and sympathize with the jury’s peevishness and will become short and even hostile to one or both of the attorneys in front of the jury. Similarly, long periods without water or bathroom breaks will drive a juror to distraction and resentment. If you need to pee, it is very likely that one or more of the jurors needs to also. Be a hero, and ask the judge for a break that everyone could use.
7) Dress conservatively and nicely at trial.
Save you sartorial expression for other occasions. Your goal is to be just another suit until you earn the gravitas to be different. Bored jurors who don’t know you from Adam, will scrutinize your clothes seeking any insight into what you are like as a person. Rumpled suits or loafers with no socks send a message that you may be ill-prepared or loosey-goosey with the facts. You may wear bow ties and seersucker suits to bar functions, but as a new lawyer I would not wear a bow tie to court for a year or two or three. Some (but not all) experienced trial lawyers can carry it off, but probably not you – at least for a while.
8) Instruct your client, your trial team, and everyone in your “audience” how to act during trial.
In several of my early trials, I was helped immeasurably by the inappropriate or negative reactions of people on the other “side” when something they did not like went the wrong way in the courtroom. During one trial, the plaintiff demonstrably shook her head every time I or one of the witnesses said something she did not like. In another trial, rude gestures made by audience members there to support the plaintiff resulted in an exasperated admonition from the bench to the plaintiff’s attorney to control “his clients.” Juror interviews following both of those trials revealed that the jurors had noticed the bad behavior and had taken offense to the disrespect it showed to my client and the court. While none of the interviewed jurors admitted that it influenced the verdict, they all conceded that it was discussed among the jurors during breaks in the trial and at deliberations.
9) Get to know and appreciate the courthouse personnel.
The TCA, clerk of court, assistant clerks, bailiffs, court reporter and other courthouse personnel are invaluable resources for you as you learn to navigate the specialized world of courthouse/courtroom practice. No one knows more about the inner workings of the courthouse and the predilections of your judges and jury pool (and often the opposing attorney) than the clerks and bailiffs. Don’t be afraid to ask. Don’t be so impressed with your new status as a lawyer that you refuse to access the years of experience that courthouse personnel have to offer you.
10) Just because you won a case doesn’t mean you are a good trial attorney (and just because you lost doesn’t mean you stink).
Whenever I hear a lawyer crow about winning all his or her cases, my first thought is always, “You must not try any hard cases.” You will win and lose case for all kinds of reasons out of your control. For example, when interviewing jurors after one of my “wins,” I found out that none of them remembered much about my closing arguments or trial skills. Instead, jurors believed the plaintiff was a liar after seeing her wear stiletto heels to court for three days while complaining about her lower back pain, a fact that I had not even noticed. Similarly, some of the best lawyers I know have taken tough cases to trial and gotten hammered by a jury. They weren’t worse lawyers after the verdict. In fact in elite circles of trial attorneys, such battle scars mean as much or more than the victories. Trial skills, preparation, and charisma are important in the courtroom, but do not guarantee wins for your client.