Are jurors ignoring your documents?

It was a paper-intensive trial, one of those cases where the phrase “Plaintiff’s Exhibit #2,598,124” doesn’t seem to shock anyone.  Because the stakes were high, it was a well-financed operation, and both parties brought a lot of technology with them.

One of the gizmos the plaintiffs brought with them to help present their evidence was a computer projector and a visual display program like Sanction or Trial Director. If you try document-intensive cases, you know the importance of using these programs to help jurors focus on the important elements of your evidence.  Unfortunately, despite all the benefits these programs offer, if you don’t use them correctly, they’ll actually detract from the persuasiveness of your case.  As I was watching the plaintiff’s attorney present his evidence, I saw a few mistakes that negatively impacted his case.  Here are the mistakes I observed and tips to help improve your presentation the next time you’re exhibiting documentary evidence:

Contract1.  Don’t expect jurors to read the entire page when it’s displayed on a computer screen. This case was tried in our courthouse’s ceremonial courtroom.  The ceremonial courtroom uses 42″ plasma screens to display images to the gallery, and smaller LCD displays to present images to the jurors.  It’s a nice system, but if you don’t zoom in to particular parts of the page, it’s impossible to read an entire page of a document.  When you try to view the entire page on those monitors, it looks like this image to the right.  Yes, you can see it, but you can’t actually read it.  Even with a hi-def screen, it’s impossible to focus on the entire page.  The only time you should show the jury the entire page of a document is when you’re trying to give the jurors an overview of the document they’re about to see.  Let them see what the document looks like, but don’t expect them to be able to read it.

Contract highlightedThe solution?  Zoom in.  Focus on one part of the document, and give your jurors a chance to digest that portion before moving on to the next section.  Probably a good recommendation would be to show the jurors just one paragraph at a time.  (A fiction writer’s paragraph — not a lawyer’s paragraph that goes on for 40 lines.)  Look at this example to the right.  It’s not enough to just highlight the important portion — you need to blow it up if you want the jurors to see it.  By blowing up the paragraph you want them to focus on, they can actually read the portion that matters to you.  Make it easy for your jury to absorb the information, and they’ll be more likely to remember it.

2.  Don’t compete with your visual aids. Visual images are usually far more compelling than aural testimony, so your jurors’ attention is usually going to be drawn towards your TV screen, not towards you or your witness.  When you’re no longer referring to the on-screen document and you want the jury to focus on your witness, switch your display screen to a blank screen so the jurors aren’t distracted.  (If you have the option, switch to a black screen rather than white, because the white screen is harsher on the eyes.)

3.  Don’t shine bright lights in your jurors’ eyes. Turn off any distracting lights.  The lawyer wasn’t using an overhead image viewer to display any images, since all of his documents had been scanned into Sanction. But for some reason, he’d turned the overhead projector on, so the projector light was shining brightly.  Every time he moved between the jurors and the bright light, they would go from darkness to bright lights shining in their eyes.  (Ouch!)  That can be distracting.  Be mindful of the projector lights and overhead display lights, so you don’t subject your jurors to a similar experience.

4.  Don’t publish private information. This last tip won’t necessarily make your presentations better, but it might make your clients (or their clients) happier.  As I mentioned earlier, this was a document intensive trial.  The plaintiff’s lawyer was publishing LOTS of documents to the jury using the projection monitors.  That meant that everyone in the courtroom could see the information.  Some of the documents he published contained private information that wasn’t essential to the case.  For example, one of his documents published the names, addresses, dates of birth, and social security numbers for 5 different individuals who weren’t involved in the case.  Hopefully, there wasn’t an identity thief in the courtroom that day, because that’s all the information he’d need to destroy their lives.  Unless it’s essential to your case, consider blacking out social security numbers and other private information from your documents before publishing them to the jury.  (Just make sure you clear it with opposing counsel in advance, and also explain to the jury why the information is blacked out.)

Your ability to persuasively present documentary evidence is essential to the success of your case.  Follow these quick and simple tips, and you’ll make it easy for jurors to focus on your documents and remember the essential details of your case.

Don’t Exclude the Jurors from Your Bench Conferences

When was the last time you watched someone else try a case?  Have you ever snuck into a courtroom and watched your opponent present a case?  If not, let me recommend you jump at the opportunity to watch someone else pick a jury and present their case.  If you do, you’ll learn some things that you wouldn’t normally notice about successfully trying cases.

Last year I had the opportunity to watch numerous jury trials and critique the performance of the attorneys.  When I watch a trial, I try not to read the case file or review a case summary, because I don’t want to know any more about the case than the jury would.  I want to be completely detached from the emotional background of the case, so that I can just sit in the back row and watch the trial unfold, critiquing the trial from the jury’s perspective.

Watching all of those trials, one of the things I noticed was just how irritating bench conferences are.  In one of the trials I watched last year, the attorneys seemed to spend more time presenting their cases to the judge than they did presenting their cases to the jury.  When most attorneys approach for bench conferences, they violate a cardinal presentation tip: Never turn your back on your audience.

Have you ever seen a live theater performance?  No matter where the actors move on the stage, they  never turn their backs on the jury.  It’s the same on TV.  You’ve probably noticed how TV families are always gathered on one side of the dinner table, right?  That’s so they don’t turn their backs on the camera and exclude anyone in their audience.  You know how rude it feels when someone turns their back on you.  But when you approach for a bench conference, that’s exactly what you’re doing.  You’re turning your back on the jurors.

The second problem with approaching the bench to argue a point of law is that you form an elite little club that excludes everyone else in the courtroom except you, your opponent, the judge, and the court reporter.  As I watched the attorneys huddle around the bench and whisper, I wanted to lean in and listen to the conversation.  I wanted to know what was going on.  And I was resentful that I was being excluded from their group.  Here are two lessons you can apply in your next trial to avoid ignoring or excluding your jury:

LESSON #1: Argue the Law Before Trial

The bench conferences I saw involved points of law that should have been handled before trial.  If you’re waiting until the day of trial to argue essential points of law or limit your opponent’s introduction of evidence, you’re waiting too late.  File motions in limine before trial, and you’ll be able to argue those essential points of law in advance of trial, minimizing the need for legal discussions during trial.

LESSON #2: Don’t Turn Your Back on the Jury

If you must approach the bench to argue a point of law or respond to an objection, make sure you don’t exclude the jurors from your discussion.  That doesn’t mean raising your voice so they can hear what you’re saying — that’s improper.  But you can use your body language to include the jury at the bench.  Rather than turning your back on the jury, just turn your body half way or 3/4 of the way towards the judge.  Leave part of your body “open” towards the jury, and they won’t feel completely excluded.

Three Quick and Easy Ways to Minimize Nervousness During Trial

You are a professional communicator. It’s your job to speak on behalf of your clients and ensure that their voices are heard. But what happens if you’re too nervous to properly present your client’s case? When you forget what you need to say or if the words get trapped and won’t come out, your client suffers. Nervousness can decimate the presentation of your case, but if you apply these quick and easy tips, you’ll minimize its impact and present your client’s case with strength and passion. You might even also benefit greatly from the likes of these public speaking tips should you feel the need to get over any personal nerves or confidence issues that might have arisen before the case.

1. Be prepared.
Lack of preparation is the most common cause of nervousness in the courtroom. Nothing will make you more comfortable in the courtroom than knowing you’re fully prepared for trial. When it comes to minimizing nervousness in the courtroom, the Boy Scouts still have the best advice: ?Be Prepared.?

Are you prepared? Did you bring caselaw to support your position on expected evidentiary issues? Do you have an alternative plan in case one of your witnesses is late to court? Do you have a backup presentation plan ready to go if your technical equipment malfunctions? Have you rehearsed your case and your presentation until you’re confident? (Until you’re fully prepared for trial, none of these other tips will be much help to you.)

2. Don’t speak to ‘the jury’ — speak to one juror at a time.
Another common cause of nervousness during trial is the fear of public speaking. Many people who struggle with public speaking have tried using sites like Effortless English Club which is taught by AJ Hoge, these sites are great because they can teach you how to speak and write English properly. Public speaking routinely captures the #1 spot on the list of ‘Top Ten Fears’ Can you believe it even edges out the fear of death and the fear of spiders?!? Just because you’re a trained communicator doesn’t mean you’re immune from a fear of public speaking. And don’t make any mistake about it — regardless of whether you’re talking to a panel of 100 prospective jurors, or talking to the six or twelve jurors selected to try your case, what you’re doing is ‘public speaking’. It’s not unusual for you to feel uncomfortable speaking to large groups. There are many people who feel the same as you with regards to public speaking – I always suggest something like these Ginger Public Speaking Classes to those people. They will be sure to help. Yet, you probably feel perfectly at ease speaking to just one person, don’t you? If you would feel comfortable presenting your opening statement to just one person, then you’re ready to present to six jurors, twelve jurors, or 1000 jurors.

Here’s the secret: rather than speaking to the entire jury, speak to just one person at a time. Make eye contact with that person and talk one-on-one with them. Don’t hold your eye contact so long that it becomes uncomfortable, but just long enough to make a connection. Then make eye contact with another juror, and repeat the process. Rather than talking to a group, you’ll be carrying on a series of one-on-one conversations. If you talk directly to each person, you’ll forget that you’re speaking in public — it will feel like you’re carrying on a conversation. Not only will this technique help you minimize your nervousness, it will also help you develop a more personal bond with your jurors. Apply this simple technique of talking to one person at a time, and your presentations will become more personal (and more memorable) to your jurors.

3. Have a checklist.
You’ve probably heard it said that ?the faintest pencil mark is better than the sharpest memory,? right? That’s especially true during trial. In trial, the stakes are high, emotions are high, and your mind is racing at breakneck speed. If you were ever going to get nervous and accidentally overlook something, this would be the perfect opportunity.

To ensure that you never lose a case because you omitted an essential element, prepare a checklist of the elements in your case and keep it on top of your trial materials. Here’s an example of how a prosecutor might organize the checklist for a simple D.U.I. case:

[ X ] Identity
[ ] Venue
[ X ] Drove (or in actual physical control of) a vehicle
[ X ] Under influence of alcohol or drugs
[ X ] to the extent “normal faculties” are impaired

As your witnesses testify to each element, you check it off the list. Before you rest your case, you review the list to ensure that every element has been proven. In this example, the prosecutor wouldn’t want to rest his case yet, because he hasn’t proven that the court has territorial jurisdiction over the case. I know dozens of young prosecutors who have lost misdemeanor cases because they forgot to prove venue. Almost without exception, they overlooked the venue element because they were nervous. A checklist like this may not eliminate that nervousness, but it can certainly prevent their nervousness from sabotaging the case.

Understand that it’s okay to be nervous. You want to do a good job, and you’re concerned about your client, so it’s only natural that you’ll be a little nervous. With everything that’s on the line, it would be a bigger problem if you weren’t nervous. But don’t let your nervousness control you or debilitate your case presentation. Follow these simple tips, and you’ll be able to control your nervousness, rather than letting it control you.