Chapter § 2.10 Trial

• Jurisdiction: United States
• Publication year: 2020

§ 2.10 Trial

A well-run case has been set up from the start with the trial in mind. Trial is the distillation of the evidence, woven into a cohesive theme. Each piece of evidence or testimony presented to the jury should have a place in the trial theme that supports the plaintiff’s ultimate legal theories.

Trial requires meticulous planning and preparation. Plaintiffs and defendants alike are best-served by painstaking planning and organization. Anticipating what evidence is to be used with which witness, how that evidence helps prove the case or enhances the trial theme, and organizing the evidence in a way that makes it easily accessible is essential to maintaining the flow of trial. The party that fumbles for documents, is unable to operate courtroom technology or otherwise appears disorganized will instantaneously lose credibility with the jury. Pretrial preparation is therefore essential.

Once at trial, the plaintiff should present a trial theme to the jurors. Research shows that attorneys are most effective in persuading jurors when they create a theory and theme that fits into a story model. In fact, one study found that 90% of jurors develop an understanding of the case by using some sort of story model.¹²² Presenting the plaintiff’s case as a story helps jurors understand all the information and leads the jurors to only one conclusion. As noted, the best trial themes and stories call upon the jurors’ sense of morality or justice, and make the jurors feel confident about a result that favors the plaintiff.¹²³

The plaintiff must also be mindful of the television environment from which its jurors enter the courtroom. For instance, the CSI effect has drastically raised jurors’ expectations of the types of evidence prosecutors offer in trials.¹²⁴ Although this coined phrase is limited to forensic evidence in criminal trials, the greater implications may be significant in civil trials. The juror’s television habits may establish preconceived expectations of how the trial should be conducted. Thus, it is important to establish with the jury, early on, exactly what the plaintiff is required to prove and how it intends to prove it. Plaintiffs should not make a promise about evidence that they cannot keep.

The opening statement is a crucial element to the plaintiff’s case. It is the first impression a jury will receive of the case, the facts and, ultimately, the story the plaintiff has to tell against the backdrop of the trial theme. The plaintiff may lose...