I occasionally (OK – often) mention Paul Luvera and his careful study of the business of trials. The truth is, guys like Luvera have been doing this stuff forever. Or so it seems. And with that experience comes wisdom. We all want wisdom. At least that is what I want to believe. I also believe we want to win as trial lawyers, and winning is not always the same thing as getting justice. But justice is just that – a concept; a feeling that makes us all go "ahh . . . ."
Winning is beyond "ahh…." Winning is a symphony. Full orchestra. Big music. Grand themes!
So here is something for you to consider, whether you are a lawyer or a person looking to win your case in one of this country’s courts.
To win – we need to think more like jurors. So says Luvera, and that’s good enough for me.
Jurors want to know what happened.
What does the plaintiff say? If you are in a criminal case – what does the prosecutor say happened? What is the defense? What does the plaintiff (state) want? In a civil case – who is paying? In a criminal case – how much time would this guy spend if we found him guilty?
And if it’s a civil case – what is the money going to be used for?
Luvera says this is the stuff that the jury is thinking so we have to think about the same stuff and focus our case to answer their questions. I know it seems so logical, but we don’t always do this. Or at least I don’t.
The questions he suggests are actually more about the needs every juror has when they sit as judges in any case, whether civil or criminal. They take their roles very seriously. The need to feel like they have gotten toward justice – and that means we cannot avoid the big questions.
Here is one more. "Why didn’t the defendant testify?"
That jury instruction that says the defendant doesn’t need to testify is great stuff for lawyers. It simply does not ring the bell for jurors. Oh, I have won cases where my client did not testify, but I am increasingly worried that most jurors need to hear the defendant regardless of how smart I am, how persuasive I can be, or how weak the state’s evidence seems.
So if you are planning your case, or a client’s case, time to think like a juror. Stand back and ask yourself the tough questions about the case.