Knockout strategies for trial litigators

What does it take to make a jury see your client's story as the truth? Winning jury trials is an artful process, melding legal strategy with persuasion theory, psychology, and other techniques and disciplines. Trial strategist G. Christopher Ritter draws upon 25 years of experience as a trial lawyer, law professor and consultant to share some best practices for winning cases.

G. Christopher Ritter

Ritter is currently chief of visual strategy for The Focal Point LLC., a firm that consults with trial lawyers throughout the country to find ways to make cases easier to understand and, as a result, more persuasive to juries. Ritter is also the author of Powerful Deliberations: Putting It All Together for the Jury.

What makes a good trial lawyer?
Jurors generally take their jobs very seriously and want you to provide them with meaningful information without feeling that you are wasting their time. They want to understand what is going on in the case and in the courtroom. This understanding not only helps them decide, but it also keeps them interested, and someone who is interested is much more likely to listen to what it is that you are trying to sell.

Great trial lawyers understand this fact and they treat the jurors right by following five basic "rules:" (1) they are not afraid to be an advocate for their client and someone who can effectively educate jurors about what they need to know to decide in your favor; (2) they are not antagonistic, like a "mad dog," in court; (3) they respect jurors by limiting their cases to what really matters; (4) they identify which key concepts need extra explanation and devote the necessary time to providing it; and (5) they take the time to learn and fully understand their case before ever appearing before the jury.

Arthur Schlesinger Jr. once noted that in order to be successful, the political process—and let's face it, the jury trial is a form of political process—must involve three steps: education, persuasion and coalition building. Of these three, the most important is education, because educating the jury entails giving them the material that they need to agree with your position and then advocate on your behalf in the deliberation room. According the Schlesinger, persuasion and coalition building cannot take place without education. I completely agree with him on all of these points.

Could you share with us the arguments and illustrative materials that are the strongest persuasive tools a lawyer can use?
All great persuasion tools address either "core values" or "core details."

Core values are those values that jurors believe should rule the universe. Generally, the tools that address jurors' core values fall into five categories. These include tools that appeal to a sense of compassion, dispassionate order, fairness, objective observation or science, and common sense. The tools that appeal to jurors' core values reassure them that they can reach a verdict in a way that is wholly consistent with their personal beliefs.

Core details are the objective facts that are necessary for the jury to understand your case. Tools that address the core details persuade jurors on an intellectual level. Core details provide a certain factual framework upon which jurors can begin to process the other details of your case. Persuasion tools that address core details provide a toe-hold from which jurors then begin a process of incremental learning.

Consistent with this, all great persuasion tools rely, at least initially, on simple everyday concepts. They must be familiar to the jury because learning cannot take place in the abstract. Learning must always begin with something already familiar to a student—or in this case, a juror. Great persuasion tools must also be memorable; they must create a certain level of "buzz"—that is, they must capture the interest of jurors.

No single persuasion tool will satisfy all of your jurors. You need to offer your jury an array of tools. By doing so, you allow different people to come to the same conclusion as to whom should prevail, but you allow them to do so from a variety of different directions.

Let me be clear on this last point. I am not advocating some uncoordinated, shotgun approach. Instead, I am suggesting that the most effective trial lawyers present a variety of coordinated tools to their jurors that allow them to get to the same conclusion, even if they do so by relying on slightly different core values.

On the flip side, based on your experience, what do you think is a juror's thought process and what helps him or her in reaching a verdict?
In the broadest sense, all verdicts are reached with a four-step process.

The first step involves the lawyer assembling and presenting what I call her "proto-story." The proto-story is the lawyer's best explanation of what she believed happened and is told in a way that suggests why her client should prevail.

The second step is what I call "two proto-stories go in and one secondary story comes out." Each juror listens to the two proto-stories, one from the prosecution and other from the defense—the two stories going in. Each juror then, in a process that one can imagine looks like recombinant DNA, breaks the two proto-stories down into segments, accepts some of the stories, rejects other parts, melds his or her own personal experiences into the mix, and comes up with a "secondary story."

The secondary story is how that individual juror makes sense of all that has been presented at the trial by both sides. Since there are generally 12 jurors, there are generally 12 secondary stories. Each secondary story ends in one of two ways: plaintiff wins or defendant wins.

The third step involves the initial forming of two coalitions based on the 12 secondary stories. Collected in one coalition are those jurors who favor the plaintiff; the other are those who favor the defendant.

And what happens in the fourth step after those coalitions are formed?
The interesting thing is that jurors' join one of these two coalitions based on who they think should win. While members of the coalition agree on who should win, they rarely agree on why.

Since our legal system requires a unanimous verdict—the two coalitions "fight" each other hoping to get a unanimous decision as to who should win. These fights—and they can be quite vicious—are fought by a sub-group of jurors, those whom I call "active jurors."

Active jurors are those extraordinary jurors who go from being neutral finders of fact to advocates for certain facts. These active jurors work to peel away jurors from the other coalition until one side has the requisite numbers (unanimous or by super-majority—depending on the jurisdiction) to prevail. This process has considerable implications, including the need to carefully create your proto-story and to provide persuasion tools those active jurors who favor your side can use to actively fight on your behalf during deliberations. The side with the largest number of best-armed active jurors is the side that will likely prevail.

You mentioned the importance and process of building a lawyer's proto-story, but what is the most persuasive way to tell the story's order of events?
A lot of lawyers tell their story in chronological order because it's the easiest way, but it's not always the best way. Sometimes, telling the story in chronological order doesn't provide enough suspense to keep it interesting. It may be better to tell a story backwards or to tell the middle of the story last.

Telling the middle part of the story last is a tactic I like to call the "Picket Fence," in which you explain easily seen facts in how the situation started and how it ended, but leave the middle part of the story out until the end of the telling. This technique allows you to build a metaphorical question mark and build suspense by making everyone wait until the details of "how" and "why" are revealed.

There is no correct order in which to tell the story—it all depends on the case. However, it's important to tell the story in a way that best captures the interest of the jury, and not default to using the same technique out of mere habit. Jurors need toe-holds of understanding upon which they can begin the process of understanding the more complex aspects of a case. A good proto-story needs a strong beginning and ending to capture the jury's interest, and should end with an appeal for the jurors to take action. And don't forget: There needs to be a single coherent story line for the events of the case to help the jury understand why your version of the story makes the most sense.

I noticed one chapter in the book titled the "Ultimate Truth" in relation to your client's version becoming "the truth." Can you address this idea and the thought process behind it?
A trial lawyer's job is to go into a courtroom and make their client's version the truth. What I mean by making a client's version the truth is that a lawyer needs to sift through all possible different versions or possibilities for a story that exist. Then, after considering all facts, ideas and possibilities, he incorporates all the facts to come up with a story that is the most favorable for his case and makes the most sense.

When I use the term "ultimate truth," I mean that it is the lawyer's job to help provide the necessary tools so that individual jurors believe they have found the truth. As there are 12 jurors, you may have 12 different versions of exactly what happened and 12 different reasons for believing so, but the individual jurors will eventually reach a consensus when they can agree on enough facts to form a coalition and become unified behind it.

Any brief closing comments or tips for our readers?
One of the best bits of advice I got was from an older lawyer, who said, "Great lawyers are not afraid to make fools of themselves." I think what that means is that great lawyers are not afraid of thinking outside the box and doing something different.

Oftentimes, lawyers, particularly young lawyers, do something just because they have observed other lawyers doing it. And it's not usually the most creative way to do things. Thinking outside the box doesn't make you look like a fool per se, but it gives you an opportunity to explore options that most lawyers don't typically consider. The ones who are willing to take a risk are the really good lawyers.

This does not, however, mean that lawyers should neglect the rules of common sense. A balance between common sense and thinking outside the box allows you to have the best of both worlds—creativity to set you apart from other lawyers and the sense not to overcomplicate your argument.

Unfortunately, I think a lot of us temporarily lose our common sense in law school. Do everything you can to regain it and, when it doubt, follow it!

Want more? Read Ritter's list of nine characteristics of great trial stories in "Nine is the Magic Number," an entry from ABA Publishing's Books Briefs Blog.

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