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Defense counsel beware! Buried beneath numerous cases you take into the courtroom are a few strategic pitfalls - inherent in the defense position - that are difficult to see and easy to fall into. The challenge is to identify those land mines and carefully maneuver around them.

Pitfall Number One: Letting plaintiff set the agenda for the trial
Going first gives plaintiff the opportunity to set the agenda , if defense allows it Going first is a great advantage for the plaintiff. Jurors are most alert when a trial first starts; they remember better what they hear in the beginning. Most important, going first gives plaintiff the opportunity to create the setting out of which the whole case will be tried.

And unfortunately, the traditional courtroom format encourages plaintiff to do just that, i.e., steal the agenda for the trial. According to the traditional format, plaintiff tells his story and defense defends against it. This format works to the advantage of plaintiff and disadvantage of the defense, because it encourages the defense to focus solely on plaintiff's case. And the more attention defense gives plaintiff's case, the more attention the jurors give it. By the end of the trial, the jurors have been saturated with plaintiff's case. Consequently, when the whole trial is focused on plaintiff's case, it is difficult for the jurors to dismiss plaintiff's case as insubstantial.

Traditionally, defense counsel gets her opportunity to slam the plaintiff's case in cross-examination. The great challenge for defense counsel is to manipulate plaintiffs' witnesses under cross-examination into admitting that plaintiff's story is untrue, or has loopholes in it, or cannot be substantiated. In so doing, defense counsel continues to concentrate on plaintiff's case, in counsel's attempts to ferret out its weaknesses.

Cross-examination, according to tradition, is the time for defense counsel to come out swinging, with all her ammunition, to win the case. Often times, after a brilliant cross-examination, the defense team can be heard chuckling to themselves about how counsel outsmarted and outmaneuvered plaintiff's witness, reducing the witness to mush. But just as often, unfortunately, when we interview jurors after a trial and quiz them about counsel's cross-examination coups, they don't know what we are talking about. Often times, those flashes of brilliance have gone right over the jurors' heads; missed their target; and live as victories only in the minds of the attorneys.

Emphasize the defense's story, not the plaintiff's

So how should defense meet this challenge? Throw away the traditional format. Instead of focusing on defending against plaintiff's story, defense counsel needs to focus on telling it's own story. Instead of staying on the defensive, counsel has to go on the offensive and attack, countering plaintiff's way of seeing the world with a different world view, just as compelling and just as credible. And sometimes defense's story will sound so different from plaintiff's that the jurors will think they are sitting on two different cases. This is just the situation defense wants. The challenge for the jurors, then, is to choose the best story between the two. In this way, defense keeps off the defensive and presents its own compelling and competitive story. And the jurors are given the opportunity to vote FOR the defense, not simply AGAINST the plaintiff.

Of course, defense counsel has to answer plaintiff's accusations, and answer them up front, in opening statement. A workable strategy is to divide opening into two parts: an offensive and defensive case presentation. The time to answer plaintiff's charges is in the defensive part of opening statement. However necessary this part is, it will not be the more powerful one. The offensive case will have the stronger appeal, simply because it will not sound defensive and will offer a new way to look at the events.

Plaintiff's strategy will be to keep trying to bring the defense back to defending against plaintiff's accusations. And sometimes this strategy is successful, as defense counsel gets 'hooked,' into defending itself against plaintiff's 'absurd' claims. Sometimes, the defense forgets its own story, and as a result, so do the jurors. The case then turns back into the traditional format, with plaintiff controlling the agenda. Watch out for these pitfalls.

Give attention to what you want the jurors to believe, not what you don't want them to believe

In a case where a 44 year old railroad man lost his arm in an accident at the railroad yard, plaintiff's story is that the boxcars were old and poorly maintained. When plaintiff was attaching two of the cars, one of them jumped the track, rammed into the another and smashed plaintiff's arm, which happened to be in between. Not only were the cars poorly maintained, they had not been maintained because ABC Steel was trying to save money. The company knowingly and willingly sacrificed Jack Smith on the alter of greed.

While the defense will want to answer those charges of poor maintenance in its defensive case, the main thrust of the defense strategy should be its offensive case, i.e., a different explanation of what happened that caused the accident. In this case, defense's focus might be on the plaintiff himself, who after a number of years on the job grew careless, and even somewhat reckless in the way he ignored basic safety precautions. He simply did not keep the required distance between him and the cars he was attaching.

Blaming the victim can be tricky, though, especially if plaintiff is a sympathetic witness. If plaintiff is a credible and likable witness, defense might still point the finger at plaintiff, but in a softer way, understanding that plaintiff made a momentary mistake, which was unfortunate - we all make mistakes - the crucial point being the necessity to accept responsibility for those mistakes. Asking plaintiff to take personal responsibility for his/her actions is good defense strategy.

Or perhaps plaintiff's story will be that an accident happened, and everyone involved is responsible, including the defendant. This is one way to limit the damage award; everyone has to share in the responsibility.

No matter what story defense decides to go with, the important point is to have a story that is different from plaintiff's, not simply one that counters it. Hopefully, plaintiff counsel will get hooked into defending himself against defense's story. When plaintiff counsel goes on the defensive, defense counsel has strategically won a major battle.

Emphasizing what DID happen, not what didn't

Legally, the defense does not have to prove how the accident happened, only that the defense was not responsible. But strategically, she does. Jurors insist on it. They not only want the defendant to prove that she was not liable, they want to know who was. And that is why defense's story is so important. Her story answers the jurors' need to know who to blame, if not the defendant.

Pitfall Number Two: Letting plaintiff capture the jurors' emotions
Plaintiff's appeal to juror sympathy

Plaintiff counsel's goal is to make the jurors want to 'take care of,' 'make up for,' what has happened to the plaintiff. Here is where the jurors' natural feelings of sympathy help plaintiff. On the other hand, if the jurors think that counsel is 'pandering' to their emotions, they will quickly forget their more humanitarian instincts and turn away from plaintiff in disgust. For example, trite appeals 'to make Jack Smith whole again,' or suggest that 'Jack Smith suffers knowing that he will never be able to play catch with his young son again,' can easily backfire. So appealing to the jurors' emotions has to be done with tact and skill.

Nevertheless, plaintiff has the distinct advantage here because someone has been hurt and is easily identified as the victim, and our natural inclination is to feel sorry for the wounded. Furthermore, plaintiff can appeal to the jurors' desire for revenge, to pay the company back for hurting Jack Smith; to teach the company a lesson. Feeling sorry for the underdog and seeking revenge for the wrongs he has suffered are strong emotional appeals.

Defense's appeal to justice

But just because plaintiff can appeal to the jurors' emotions for sympathy and revenge, does not mean plaintiff has a monopoly on the jurors' emotions - not unless defense counsel concedes it to him. While plaintiff has sympathy on his side, the defense has justice on her side. While plaintiff can appeal to the jurors' natural desire to help someone who has been hurt, defense can appeal to the jurors' natural desire for justice.

Furthermore, defense can appeal to the jurors' desire for revenge , as well as plaintiff. Defense counsel's plea is to teach plaintiff a lesson, i.e., that he can't get away blaming others for his own actions, for being greedy, for trying to get something for nothing.

Plaintiff will tell the jurors that their job is to fix plaintiff up; defense will tell the jurors that their job is to bring honor to the courtroom. Plaintiff will try to persuade the jurors to punish the defendant; defense will try to persuade the jurors to punish the plaintiff. Both pleas are equally persuasive. The call to bring justice to the courtroom, and the power to do so, is seductive, and can be just as compelling as the call to help a wounded person.

Furthermore, the call for justice appeals to the jurors' noble instincts and higher sense of morality. 'Justice' does not depend on the situation or the person. Plaintiff sympathy does. Justice is always worth fighting for, unconditionally, while many individual plaintiffs are not. If the jurors don't like plaintiff, no matter how injured he is, they will find a way to guarantee he doesn't get any money. They'll vote for justice, instead.

The challenge for the defense is to put as much passion in her case as plaintiff puts in his; to lay claim to the juror's hearts and then fight for them.

Pitfall Number Three: Failure to personalize defendant
Identify the players in the case

The first question to ask in evaluating a case is: Who are the players? Cases are like plays; each has its special cast of characters who will tell the story. The most important players will be the attorneys, first and foremost; they are the directors of the play, i.e., determining the plot, the major issues, how and at what pace the plot will be revealed, who will play the important roles. The directors are the most important players not only because they are in charge of the play, but because they are the characters the jurors see the most. And the jurors are judging the directors every minute they are on stage, i. e., in terms of how competent the directors are in moving the play along, how compelling the plot is, how interestingly it is being presented, how good the actors are, how successfully they hold the audience's attention.

The plaintiff, himself, will normally be the main character in plaintiff's case. But who is the main character in defense's case when the defendant is a company? The company, naturally. And yet, too many times defense counsel forgets to introduce the defendant to the jurors. Counsel forgets to tell the jurors who the company is, when it was started and under what circumstances, how it has contributed to the community, how much its employees like working there, what honors it has been awarded, what inventions it has put on the market, etc. Counsel sometimes forgets to lay the groundwork which will make the jurors care what happens to the defendant company.

Personify the defendant if it is a company

Plaintiff counsel will appeal to the jurors' sympathies for the plaintiff. And defense counsel has to counter, i.e,. appeal to the jurors' sympathies for the defendant. Ideally, defense counsel will personify the company, so that by the end of opening, the jurors think of the company as a main character in the play. Perhaps the company is like an Horatio Alger character, i.e., the poor kid who pulled himself up by his boot straps to find success; or a Rockefeller, the rich kid who uses his money to benefit the community; or the hard working little guy who is struggling to stay alive in the midst of corporate takeovers, or the nerdy guy next door who started building computers in his basement, got rich, and has started a scholarship fund for other nerds; or the eccentric inventor who is threatening the big pharmaceuticals with his new device for analyzing blood, or the immigrant who got the idea to grow trees as a crop and make houses more affordable.

Every company has a story behind it, and usually an interesting one. Surprisingly, once counsel decides he wants this information, getting it is often difficult. The public relations that goes out about companies is usually about the technology of the company's product, or the numbers behind its success, or its new corporate headquarters. That is not the kind of information that is interesting to jurors. They want the story of the company, not the statistics.

Make the jurors care about the defendant company

Jurors have to care about the company in order to vote for it. So counsels' challenge is to transform the company from a cold abstraction into a sympathetic player who deserves a fair hearing.

Let's look at the Jack Smith case, for example. The main character for the plaintiff is Jack Smith. The main player for the defense is ABC Steel. ABC Steel is a family owned business, started by the grandfather 75 years ago and now run by his grandson, Arthur Blake. It's name might make it sound like a big corporation, but in fact, ABC Steel is a small business which only employees 52 people. But it plays a crucial role in the economy of not only Smithville, Pennsylvania, where it is located, but the whole state. ABC Steel is responsible for transferring steel that comes in from the big railroad yard to a smaller yard where it is picked up and transported by truck throughout the state. Without ABC Steel, building sites would not have access to the materials they need. You will meet the old man's grandson, Arthur, who will tell you more about his grandfather and how he started the business, the men who work in the yard today, and the role Arthur plays in his determination to keep those men working and ABC Steel contributing to the state's economy.

Introduce the company; tell the jurors its history; explain what an important part it plays in the community; introduce a witness who can vouch for the company and with whom the jurors can identify. Give the jurors a reason to care about the company and want to support it. Make the company as compelling a witness as the plaintiff.


In summary, defense counsel will want to be aware of three pitfalls that often lie in waiting in the courtroom: that plaintiff will succeed in setting the agenda; that plaintiff will succeed in monopolizing the jurors emotions; and that defense will fail in personalizing the defendant.

All three pitfalls can be effectively countered by the defense: Going on the offensive with its own story; appealing to the jurors' higher aspirations for justice; and treating the defendant company like a major character with its own history and compelling personality.

About the Author

Constance Bernstein, President of The Synchronics Group Trial Consultants, has been working with attorneys in the courtroom for over 20 years. Established in 1981, The Synchronics Group is one of the oldest trial consulting firms in the country, pioneering the use of scientific and academic principles which have become essential components in today's complex litigation. We have developed a special expertise in presenting complex cases to jurors and offer an especially creative graphics capability to visually reinforce case presentations.

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