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Weathering the Storm

By Theodore M. Grossman

On the eve of trial, as you are preparing an important witness, he suddenly announces that his recollection has changed, and what he told you in earlier interviews was wrong. You had been depending on his testimony; it was to be a foundation of one of your central trial themes. Now it has evaporated. Or the witness waits until you put him on the stand to change his story. Or he gives his anticipated testimony on direct examination, but then turns red, apologizes, and recants on cross-examination.

Or after spending years working with you preparing a joint defense, counsel for your co-defendant starts to defend his client by pointing a finger at your client.

Or the judge appears to become a partisan during trial and threatens jury instructions that would fill in the holes in your opponent’s case. Having previously said some of your critical evidence would be admitted, the judge excludes it. Having previously excluded some of your opponent’s evidence, the judge without warning allows it. Or the judge allows your opponent’s expert to offer previously undisclosed tests and opinions. Or your own expert conducts, with great drama and fanfare, a demonstration in the courtroom that fails on the spot.

Had enough?

I would like to offer for your consideration some thoughts on dealing with potential surprises, but before going further, if your one and only reaction to nightmare scenarios such as those set out above would be to settle at all costs, I sympathize, but this article probably is not for you. Settlement is often the best course. It needs to be considered at all steps of litigation, but sometimes settlement is too expensive, and sometimes it is impossible.

I have tried many cases for clients that have policies of never settling because, in their circumstances, settlement would invite too much further litigation; we have simply had to win. Similarly, many other types of cases, such as cases against the government challenging the constitutionality of a statute or regulation, often cannot be settled because there is no available middle ground.

More generally, when a witness turns or a judge turns, it is not a private event; your opponent knows as well as you do. So your opponent may become obstinate, making the price of settlement exorbitantly high. Or if you represent the plaintiff, the offer may be too low, and you will need a counter punch to show some strength in court before you can make any progress in settlement negotiations.

Take heart. Annals are filled with cases that were won by lawyers who creatively responded to and surmounted bad developments beyond their initial control. But before you do anything, first talk with your client.

Your client needs to know about the bad days in court, not just the good. If there are any rules for dealing with metaphorical punches to the gut at trial (and there are few), this one is at the top of the list. When one of your witnesses does not live up to her promise, or when your opponent offers what he says is evidence he just found, or when the judge turns on you, reversing her prior rulings, your client needs to know. Similarly, your client needs your thoughts about how you will respond. The case is your client’s, after all, not yours.

While you need to be frank with your client, however, you also need to appear unfazed to your adversary, the outside world, and especially the jury. In the area of damage control, where responses need to be tailored to the specific situation—and there are so few principles of universal application—that is a second universal rule. It is apparently one that is tough for many to follow.

Much has been written about maintaining a “litigation face” or “poker face” at trial, but in my practice I have observed many otherwise good and successful adversaries who have been unable to maintain their composure when trial events have not gone their way. Some have audibly sighed, some have held their head in their hands. One banged his fist. These are not good things to do.

In my experience, those jurors who have the most difficulty following complex fact patterns often work hardest to analyze nonverbal cues. Many may have tried throughout their lives to compensate for problems with factual analysis by making their assessments from their perception of the demeanor and non-verbal posturing of others. Such jurors’ response to complex, competing expert testimony or to differences in testimony between direct and cross-examination may depend heavily on their perception of your apparent confidence more than on their perception of the evidence itself.

Mark Twain famously quipped that a good off-the-cuff remark can take hours to prepare. So it is with trial. Creative, extemporaneous responses to bad days in court do not appear from the ether even if they seem to. They come from long hours in the weeks and months before trial of thinking, war-gaming, and worrying.

The war-gaming should start as soon as you get a new case. Its central purpose should be the development and nurturing of themes that can bring you victory even if you confront a nightmare scenario.

There are few well-tried cases in which the outcome depends on a single witness or a single fact. They depend, instead, on whether the jury finds the plaintiff’s principal themes or the defendant’s principal themes more salient, more consistent, and more supported in their totality. The two parties’ themes are often ships in the night, having little relation to each other.

Soon after a new case comes in, I outline a closing argument. Of course, it is only aspirational and will be amended as discovery progresses. Outlining the closing argument has the advantage, however, of requiring an early focus on the broad themes you will need to prove to win and allows you to outline the evidence you will need to develop to support those themes. Thus, it provides a structure for discovery. Depositions of parties and experts should, like cross-examination at trial, be constructed of leading questions. But, to say the least, such depositions are helpful only if the witnesses are led in the right direction. The development of an aspirational closing includes an early and intense examination of the client’s documents and potential testimony in light of the opponent’s likely themes. This is a crucial step to understand the extent to which the record will support your opponent’s themes and undercut your own proposed themes.

You can, and should, try to create multiple layers of proof, both through the development of your own witnesses and through cross-examination of your opponent’s witnesses, so that you can support your themes regardless of the court’s ultimate rulings on motions in limine. In essence, you should have alternative plans: a Plan A if you win your motions in limine and a Plan B if you do not.

But if you have tried enough cases, you know a Plan A and a Plan B may not be enough. You know that your opponent may not play by all the rules. You also know that some of your witnesses who seemed strong in preparation may get nervous and confused on the stand. You need to worry through those issues and develop, in essence, a Plan C: a plan to work through the nightmare scenarios.

Developing a Plan C is as uncomfortable as the early brainstorming on winning themes is exhilarating. You are, after all, trying to force yourself to consider everything reasonably imaginable that can go wrong so that you can avoid the bad events, control them, or surmount them.

Building a Plan C is also something that you cannot set out to do in a day, week, or month. It is something you need to develop throughout pretrial preparation as you observe your adversary, his witnesses, and your witnesses and as you let your imagination roam. By the time you get near trial, however, your development of a Plan C should be pretty well finished. By then, you should have the answers, and by then, you want to focus relentlessly on your themes.

There are some things that absolutely should not happen at trial, but experience will tell you that sometimes they do. If you have chosen your themes well and supported them well before trial, and if you relentlessly build your case around your themes from jury selection to closing argument, you will be in a much better position to withstand heavy seas, no matter how unpredictable they may be. There are few universal rules apart from confiding in your client and maintaining your composure, but there is one other that cannot be stressed too much. You need to make your record.

Juries expect lawyers to do their jobs, and they respect competence. I have never seen a jury reward counsel for failing to object, but I have seen many appellate courts penalize parties for failing to object or to make an offer of proof or, when appropriate, to move for a mistrial. In all the cases I have tried and all the cases I have witnessed, I have never seen support for the idea, current among many lawyers, that you must choose between trying a case for the appeal (by making objections during trial) and trying a case for the verdict (by avoiding objections, especially if they may be denied at the trial level). You try each case for both.

In some European and Asian legal systems, judges ask almost all the questions at trial, and the role of lawyers is limited. Our system allows so much more power, freedom, and creativity. With adequate preparation, and with the confidence that comes from worrying through even the most unlikely eventualities long before trial, we can weather almost any storm.

Keywords: Trial procedure, settlement, discovery, motions in limine

Theodore M. Grossman practices with Jones Day in Cleveland, Ohio.

This article was excerpted from a longer one that appeared in LITIGATION, Volume 34, Number 4, Summer 2008 at page 36.

  • February 3, 2009 – Having been, as we say in Vermont, "put thru the field goalposts" many times at trial by unexpected developments, Mr.Grossman's article is a good reminder that keeping a steady hand on the tiller is critically important.
  • February 24, 2009 – How about "weathering this storm": On January 26, I selected a jury in a case in which my client was accused by his three brothers of stealing $780,000 in cash from their mother the day their father died. Jury selection ended about 7:30. Opening statements were scheduled to begin at 9 the next morning. At 8:30 the next morning the wife of my client rushed into the courtroom with a worried look on her face and told me, "Something terrible has just happened. [Name withheld, my client] was just arrested trying to bring a loaded gun into the courthouse." I replied, "That is a terrible problem. I'll call [criminal defense lawyer]." I could go on and on about what else happened throughout the rest of the day, but I must admit I was not prepared for weathering that storm.


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