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Building Your Case for the Jury

By Kevin P. Durkin and Colin H. Dunn

Robert Frost once said that a “jury consists of 12 persons chosen to decide who has the better lawyer.” For us lawyers, that’s good news because it makes us think that we play some role in how a jury trial comes out. Whether that is true or not, we have to act as though it is. And we use several tools and techniques that we believe help us to do that.

Mock juries. We can’t understate the usefulness of mock juries and focus groups to test your case, arguments, and evidence before trial. Mock juries are valuable tools in developing themes—defining your case and putting together an effective order of proof to persuade juries. They can make the difference between winning and losing because you can test the weaknesses of your theories on people from the community before your theories become intractable mistakes. Mock juries are the closest you will get to knowing how a real jury will react to your case before trial.

For instance, Bob Clifford and Kevin Durkin of my firm had a trial several years ago that involved an accomplished young violinist. As she stepped off a commuter train in Chicago, her violin case and other bags became caught in the doors. When the automatic doors closed, her violin was caught on the inside of the doors, leaving her on the platform pinned to the train. The violinist thought the doors would just bounce back open. Instead, the train took off, dragging her some 300 feet before passengers on the train heard her screams and piercing cries for help. The train stopped when a passenger hit the emergency stop, but not before the train rolled over her, severing her legs. The passenger who stopped the train and another person, both of whom were described as heroes, saved the violinist’s life by putting tourniquets on her legs with their belts until emergency personnel arrived.

While the young woman lay fighting for her life in the hospital, the commuter railroad’s media machine immediately began to blame her for getting off the train late and, upon realizing something was wrong, not wanting to give up her violin. Changing the public’s reaction after a week of such spin proved fruitless. Instead, we focused on convincing the 12 people in the jury box during trial.

To help us, we decided to use a mock jury. In the first mock jury, we started our case by presenting evidence of the actual occurrence. But the mock jurors focused on her conduct and gave her fairly high amounts of contributory negligence. (Illinois law provides that the plaintiff does not recover if she is found to be more than 50 percent at fault.) That was obviously the railroad’s goal.

During discovery, we found out that the doors on these trains had been a problem for years. We put together a list of approximately 70 prior instances of people becoming caught in the doors as they closed. Their injuries never rose to the level of the violinist’s; nor was there ever the same notoriety that surrounded her incident. But the court eventually ruled that a dozen of these prior incidents were similar enough in nature to our case to create notice on behalf of the defendant train company.

After getting this ruling, we changed our strategy and conducted another mock jury. Now we began by presenting evidence of all these prior entrapments. It worked! The contributory negligence of the plaintiff plummeted in mock jurors’ minds. That was the approach we then decided to take at trial. The end result: a $29 million verdict and less than 5 percent contributory negligence for the plaintiff.

Demonstrative exhibits. Our society has become dependent on visual information because of increased use of the Internet and television. We are conditioned to expect short bursts of substantive programming broken up by frequent intermissions. As a result, the average person’s attention span is no longer than a few minutes. Demonstrative exhibits keep the jury engaged.

What visual or demonstrative aids should be used depends on the issues in the case. For example, we find that time lines are essential in cases in which the timing of certain events is key to issues of liability or damages. While you can talk about times with witnesses, the jury can become confused unless the information is organized in some fashion.

Not all exhibits need to be high tech to be effective. Presenting all events through computers, video, or boards can be boring, monotonous, and predictable. Models, on the other hand, can be very persuasive. We are talking about real-life models, not computer models. A model, properly used, can bring the jury to the scene of an occurrence without actually going there.

In the case involving the young violinist and the commuter rail line, we had a scale model built of the entire train station—every building, rail, sign, tree, bush, person, and car, was built to scale. The witnesses would get off the stand and approach the model in front of the jury to point out exactly where they were located, what they saw, and what they heard. As each witness placed a small human figurine on the model, it gained more and more detail. The model gave the jurors a very close, if not exact, display of where the witnesses were when the tragedy occurred. It helped the jurors understand what had happened and let them weigh the witnesses’ credibility.

In using any demonstrative exhibit, you need to decide how you are going to lay the foundation for it. Whenever we use a model, we formally identify the model maker as a potential trial witness to address any foundational questions that arise.

Be careful not to get too fancy. The defendant in the violinist’s case used an exhibit of actual train doors that remained in the courtroom throughout the trial. The doors were used as demonstrative models for witnesses to explain how she came down, where she was, where the conductors were, and other key information that allowed jurors to picture the events. Yet with the young violinist sitting small and frail beside her lawyers, the ominous doors took on the look of something she could never have fought off. Their size and continued presence may have lessened their effectiveness, if not backfired completely.

Videotaped depositions. In many jurisdictions across the country, it is now common to videotape depositions. Yet when we decided to videotape all the depositions in the case involving the young violinist 15 years ago, people were surprised and thought we were wasting money. Under Illinois law, we could never play those deposition videos in court at trial; we could, however, use them for impeachment purposes.

In taking the depositions, we decided to ask “clean questions” in anticipation of admissions of important matters from railroad employees, and we made a series of video clips from the depositions. Whenever we called an adverse witness from the railroad or cross-examined one of its experts, we were prepared to show a video clip if the witness strayed from his or her discovery deposition testimony. Nothing is more effective than having the jury watch a witness under oath, and in his own words on a big screen with no argument of mistaken interpretation, say something completely different from what he just said in open court.

We have perfected this over the years. Every cross-examination we prepare for trial includes a videotaped series of admissions made by the witness, ready to go. A mere swipe of a bar code, and the person appears on a television that is set up in the courtroom. If the witness deviates from the testimony, we pick up the bar code reader “gun,” and the face of the witness and his booming voice is played with the earlier contradictory testimony captured on tape. Later, when a witness starts deviating at trial from his earlier videotaped testimony, we merely reach to pick up the bar code gun and the witness stops and admits what we are asking for. It truly is very persuasive with the jury.

Keeping it simple. Many of us have been told on more than one occasion to “stop thinking like a lawyer and start thinking like a human being.” That advice is not meant to be degrading to lawyers. Instead, it is meant to refocus you on the fact that jurors are not lawyers; they are letter carriers, nurses, school teachers, retired folks, college students, high school dropouts, and so forth—people who have varying educations, backgrounds, and cultural beliefs. And so it is not helpful to talk to them as if they know what a “tort” is or what “proximate cause” means.

Being yourself. In most courtrooms, the jurors are situated in a way that allows them to see not only the witnesses on the stand but also the lawyers. You must remember that you are always onstage, even if you are just sitting at the counsel table. Snickering with your co-counsel, rolling your eyes during a witness’s testimony, and other negative body language probably won’t win you points with the jury.

Learn from others, but always be yourself. Few things are worse than trying to be persuasive but emitting a sense of phoniness instead. Embrace who you are and where you are from.

During a trial in South Dakota involving a client who suffered a traumatic brain injury in a trucking accident, the defense attorneys repeatedly reminded the jury that they were the local hometown lawyers and that our team of Bob Clifford and Kevin Durkin were from the “big city.” It was an obvious attempt to pander to the jury. Instead of downplaying that fact, Bob and Kevin embraced it. When they suggested what the damage award should be, they said they would ask the same of a jury in Chicago. If the jurors wanted to devalue a traumatic brain injury simply because it happened in South Dakota, that was their prerogative. When the jury’s foreman came out in a Chicago Bulls sweatshirt, it was clear that Bob’s and Kevin’s candor had gotten through to the jurors. The case resulted in one of the largest verdicts in the state of South Dakota. Interestingly enough, after the trial, some of the jurors commented on how the fact that big-city Chicago lawyers came to try the case demonstrated its importance. Go figure. A good trial lawyer should be able to try any case in any venue.

Don’t make yourself seem any better than the jurors. If they can’t drink water, you shouldn’t either. If they can’t drink coffee, don’t drink coffee. If they can’t look down at their BlackBerrys to check messages, don’t look at your BlackBerry either.

Keywords: litigation, tips, jury trial, building your case

Kevin P. Durkin and Colin H. Dunn are with the Clifford Law Offices in Chicago, Illinois.

This article was adapted from a longer one that was published in the Spring 2010 issue of Litigation.


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