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Trial Practice

Do’s and Don’ts of Talking to the Jury

By Nelly N. Khouzam

Good cases may be lost and dog cases may be won by the quality of advocacy, or the lack thereof. We sometimes say that trying a case well is largely a matter of "common sense," but this is a misnomer. Too often, trial counsel, as lawyers, forget the things they once knew as people. So at the risk of stating the obvious, I set forth some lessons learned on both sides of the bench. These are the do’s and don’ts of speaking to the jury, during voir dire, opening statement, and closing argument. Of course, there can be no all-inclusive list. And, as a good trial lawyer, you must temper any advice with the caveat that you must be yourself.

Voir Dire

1. Keep it simple. Think of the jurors as neighbors. When you talk with them, you talk in simple, everyday language. If they ask you what your trial is about, you might answer, "I represent a young boy who was hurt when he fell off a merry-go-round," not "a plaintiff seeking recovery of damages for negligence." Talk with the jury, not at the jury. Avoid using legalese and big words.

2. Avoid talking about yourself. Introduce yourself to the jury, but don’t go overboard. One of the goals of voir dire is to know who your potential jurors are, and to establish some rapport. I have seen the following thirty-second introduction effectively used in voir dire:

I want to know a little bit about each of you—whether or not you are married; whether or not you are employed; your occupation; your hobbies; your children and their occupations. As an example, I will introduce myself. My name is John Smith. I have been an attorney for the past twenty-six years. I am married and have two daughters. One is eighteen and a die-hard Gator; the other is twenty and a Seminole. My wife is in advertising, and I enjoy fishing, reading, and bicycling.

3. Establish a dialogue. In voir dire, you are visiting with the jury to learn about their attitudes, experiences, and potential prejudices. You will learn a great deal more from open-ended questions than from head-nodding questions. Then, remember to listen to the responses. If a juror says something that sounds problematic, use the response to educate the other jurors. As you establish a rapport with the jury, try to use examples to explain your theory of the case and the concepts involved in the case. Of course, know how far the judge will allow you to go.

4. Avoid embarrassing the jurors. Treat the jurors with dignity and respect. For example, if you are involved in a case that will concern alcohol problems, address that issue with the prospective jurors. Ask them whether any of them or any members of their families have ever had a history of alcoholism. One approach would be to ask the judge to ask these questions directly of the prospective jurors. Ask the judge to tell the jurors that they can approach the bench if they wish to discuss the matter outside the hearing of the rest of the panel. If the judge won’t ask these questions, let the jury know that you are not asking the questions to embarrass anyone, but are asking the questions because it is your duty to make sure the jurors can be impartial.

5. Always be civil and professional. Don’t belittle your opponent. If you act unprofessionally, the jurors will lose their respect for you and may hold it against your client. Be well groomed and professional. If it is in your nature to be very flamboyant, temper it, or you may lose the jury.

6. Know your judge. For voir dire, it is crucial that you know ahead of time how far the judge will permit you to get into the facts of your case. If the judge limits your inquiry, then stay within those limits.

7. Try to humanize your client. Have the prospective jurors take a good look at your client. At the beginning of a trial, I usually introduce all of the parties and their attorneys and inquire of the venire if any of them knows or recognizes anyone else in the courtroom. You may wish to proceed as follows:

My client’s name is Jane Smith. Ms. Smith, please stand up. Now do any of you, simply by looking at Ms. Smith, already believe that she shouldn’t win this case? Does she remind you of anyone? Can you give Ms. Smith her day in court? Will you hold it against Ms. Smith that she is bringing this lawsuit as a way of resolving this dispute? You may sit down, Ms. Smith.

By taking this simple approach, you will humanize your client, even if the client is a corporation. Let the jurors see the representatives as the people who are affected by the case.

8. Divulge your weaknesses or the problems with your case. Lawyers who bring out the weaknesses of their case during voir dire, and talk about those problems in their own way, have a better chance to diffuse the problems at that time. Lawyers who do this gain credibility for being up-front with the jury. It also avoids letting opposing counsel take shots at your case by exposing key problems.

Opening Statements

1. Prepare your opening carefully. Opening statements may well have an impact on the outcome of a case, particularly in a short trial. This is your opportunity to talk about your case and to focus on what needs to be emphasized at the outset of your case. This also allows you to build on what was discussed and learned in voir dire. Take care to present a clear story that will make the jury want to take your side and to look at the evidence in the spirit in which you have offered it. As in voir dire, speak plainly, with your neighbors, and not at the jury.

2. Above all, maintain your credibility. Do not tell the jury something in your opening statement that you do not expect you will be able to prove. Your opponent may effectively discredit your case by reminding the jury that you told them something that was not accurate. At this juncture, know how strong or how weak your case is and present it to the jury in the best possible light. Be forceful and positive.

3. Keep it simple (again). If you overload the jury, they are apt to become confused or overwhelmed or possibly bored. As in voir dire, speak in plain English.

4. Do not be argumentative. Some lawyers try to argue their case in their opening statements. If an objection is made, most judges will sustain it. You will suffer the interruption and a loss of credibility with the jury. There is an important line between discussing the expected evidence and arguing final conclusions. Don’t get swept away in your rhetoric and step across that line.

Closing Argument

1. Tie all evidence together and persuade the jury what it all means. Make sure that whatever argument you make is based on the evidence at trial. Don’t exaggerate testimony or other evidence. The jury will see right through you. Stick to the facts, and don’t embellish them. Craft the facts to tell your story and lead to the desired conclusion.

2. Be prepared. Closing argument can be one of the most powerful tools at your disposal for convincing the jury of your case, and it will provide your last opportunity to communicate directly to the jury. Think about your closing argument through every stage of the pretrial proceedings, up through time of trial. If you do this, you will run less of a risk of concluding trial without having proved some essential, or even helpful, fact.

3. Do not be philosophical. Avoid using quotes. Instead, tell the jury an allegorical story. But make sure that the story has a point, and that your opponent cannot manipulate the story to his or her advantage.

4. Avoid theatrics. Strive to make your presentation interesting and animated, but don’t overdo it. Jurors respond to theatrics by wondering, "What is he hiding?"

5. Use exhibits. Do not do anything fancy. A simple blackboard will suffice. If you are making reference to a certain piece of evidence, display that evidence to the jury at that time.

Of course, this is all common sense. It is about attempting to convey a point to people who are open to hearing it. Trying a case is not easy, but don’t make it harder than it has to be. When in doubt, ask your neighbor.

Nelly N. Khouzam is a Circuit Judge for the Sixth Judicial Circuit for Pasco and Pinellas Counties, Florida.

This article is an abridged and edited version of one that originally appeared on page 5 in Litigation, Summer 1997 (23:4).

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