In an age of 15 second internet reels, fast paced communications, constant online conversations, and “texting culture,” brevity is more important than ever for trial attorneys. At Tyson & Mendes, one of our trial goals is to defuse juror anger. As one who is impatient, and has participated in many civil jury trials over some 20 years, I can confidently say wasting your jury’s time will not dispel juror anger.

I am sure most of you have heard this famous quote from Hamlet:

“Brevity is the soul of wit.”

– William Shakespeare[i]

When preparing for trial, it is important to convey your theme clearly and efficiently. It is critical to convey your knowledge of the facts and why your client’s position should prevail. It is also incredibly valuable to get your case tried quickly and efficiently. Do. Not. Waste. The. Jury’s. Time.

This article focuses on how to keep each segment of the trial brief. I was writing TL;DR (“Too Long; Didn’t Read”) in emails before it was even a thing.

Jury Selection

“Brevity never fatigues; therefore, brevity is always a welcome guest.”

– Theophile Gautier

Jury selection is trial counsel’s only opportunity to speak directly to jurors individually. Many attorneys spend most of their time in voir dire attempting to build rapport with the jury. While it is important to be personable and build rapport, it is also important to consider that, most of the time, judges will put time limits on voir dire. While you may want to spend time making friends with jurors, if you do, you may miss your opportunity to learn which jurors need to be challenged for cause and when to exercise your peremptory challenges. Most jurors will know when you’re trying too hard to get them to like you.

On the defense side, before it’s your turn in jury selection, you may have sat through two hours of plaintiff questioning. Remove the questions the other side asked. Do not waste the jury’s time with repetition. Make note of areas requiring follow up, and focus on doing so.

Be organized, and prepare an outline of questions you must ask to determine which jurors may be biased and worth striking. If plaintiff’s counsel takes two hours, unless they did something horribly wrong, your voir dire should last less than an hour. Get in, be charming, ask the questions you need, and get out.

Opening Statement

“The most valuable of talents is that of never using two words when one will do.”

– Thomas Jefferson

Opening statement is your first opportunity to explain your case to the jury and tell them why the evidence will support your client. Your goals for opening: (1) present the theme of your case, (2) highlight favorable evidence, (3) address (and don’t ignore) the weaknesses in your case, and (4) show the jury that you know your case from top to bottom and build trust.

30-45 minutes is a good target time for an opening statement in most personal injury cases. Taking over an hour risks irritating the jury early on.

To keep my openings brief and efficient, I prepare them in sections. After my outline is done, I start cutting it down. The same process applies to a PowerPoint. When preparing a slide deck for opening, closing, or even a general presentation, “Do I need it?” is a question you should ask yourself often.

Keep your opening punchy. My first comment to the jury—what I say right out of the gate—is critical. It’s important to grab their attention immediately and keep the opening at a good tempo with the right amount of substance so you don’t lose them.

While we plan ahead for opening and all aspects of the trial, watch for juror feedback as well. If jurors appear inattentive or bored (body language), consider how to pick up the pace or slice some “fluff” without losing the substance you need to present.

Direct Examination

“It is my ambition to say in ten sentences what other will say in a whole book.”

– Friedrich Nietzsche

One area where trial attorneys go too long is their case in chief. Direct examination of expert witnesses creates a high risk for a juror “snooze fest.” Sure, your expert has 85 Ph.Ds, has won 100 awards, and has written 275 articles….but does the jury care? Be mindful of what resonates.

Also, be mindful of where you are in your case when your expert, or fact witness takes the stand. For example, if the jury has already heard plaintiff’s orthopedic surgeon and radiologist, you might want to cut your radiologist’s dog and pony show of an anatomy lesson.

A possible solution is to say something like, “Dr. Smith, the jury already had an anatomy and vocabulary lesson a couple of days ago, so let’s jump right into substance.” You’ll be surprised to see several jurors smile when you actively choose not to waste their time.

For direct examination, outline your goals, plan the questions you need to ask, and then give the outline a few passes where you cut the fluff. When witnesses talk too long, important aspects of their testimony can be lost in the sea of unnecessary talk.

Cross-Examination

Cross-examination is my favorite part of trial. The feeling of shredding experts who think they are smarter than you (and, to be fair, probably are) is exhilarating.

Surgical, short cross-examination can dismantle an opponent’s case. When cross-examining an expert, I know the expert is smarter than I am, or at least more schooled in the area in which he or she is testifying. Experts are “experts” for a reason.

Outline your goals for cross-examination. What can they be forced to concede? How can I show bias? Where is the expert unprepared? Did the expert make any mistakes during deposition on which I can capitalize? Has the plaintiff testified to anything the expert must concede is untrue or incorrect?

Once you have your “punch list,” get in there, throw your darts…and get out! The longer your cross, the more you risk losing control. As with direct examination, you want your points in cross-examination to shine. If you bury good information in a sea of unnecessary words, it will be lost.

Lastly, do not get greedy. If you get a great admission, resist the urge to ask that next question. Take your win and sit down!

Closing Argument

“If I am to speak for 10 minutes, I need a week to prepare; if I am to speak for an hour, I’m ready now.”

– Woodrow Wilson

In most cases, the judge will limit time for closing argument: often an hour, but sometimes, in more complex cases, it may be 90 minutes. You do not need to use the entire amount of time allotted. Plan to complete your closing within the allotted time. You don’t want to get jammed up when the judge says lets you know you have five minutes.

Organize your closing argument to avoid wasting time. Make sure you carry through the theme you built in opening and throughout the case. How you organize your presentation will, and should, vary depending on the facts of the case.

Consider whether you want to outline witness testimony first and then show the supporting evidence. Consider the jury instructions the judge will give and how to weave them into your closing efficiently, and in a way that does not bore the jury. If you have an unfavorable jury instruction (for example, in Florida, the dreaded aggravation instructions that most plaintiff’s attorneys consider their “hall pass” from causation), determine if you can mesh the law and facts in a manner favorable to your client. Then, educate the jury on why it supports your client. Don’t be overly repetitive. Drive home your points, but don’t beat a dead horse!

As with opening, direct, and cross examination, prepare your outline (and/or slide deck) review it, and then start cutting. Ask yourself “do I need it”? Make sure you plan for your first closing sentence and your last words to the jury to be meaningful.

Takeaways

“No weapons are more potent than Brevity and Simplicity.”

– Katherine Cecil Thurston

When preparing for trial, draft a brief order of proof outlining your plans for jury selection, opening statement, direct examination in your case in chief, and cross-examination of opposing witnesses. Think of ways to keep witness questioning brief and consider cutting witnesses you don’t need.

While you can’t violate the Golden Rule at trial by asking the jurors to put themselves in the shoes of a party, you can put yourself in the shoes of a juror who gives up their time to participate in your case.  The time you have to make your case and be impactful for your client is valuable—don’t waste it.

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Sources

[i] William Shakespeare, Hamlet act 2, sc. 2, l. 97 (Folger Shakespeare Library), https://www.folger.edu/explore/shakespeares-works/hamlet/read/.