chevron-down Created with Sketch Beta.
January 31, 2023 Practice Points

Fact Checking from a Trial Perspective

Trying cases today is different than it used to be, and as trial lawyers, we must recognize the changes in the practice and adapt to the juries of today.

By Kasey Mitchell Adams

Did you know that “fact-check” is a word in the Merriam-Webster dictionary? It’s defined as “to verify the factual accuracy of.” With smart phones and social media, information about anything we want to know is available instantly at our fingertips. But we all know that just because information is instantly available, does not mean it is accurate or tells the full story.

For better or worse, social media, technology, and society shifts in the last few years have changed a lot about the way people receive, process, and share information. For litigators, it would be unwise to discount the impact this plays in how jurors in particular receive, process, and share information. Though jurors are instructed not to do independent research or talk about the case outside the courtroom, they still bring their own life experiences and expectations into the courtroom every day. This often includes the skepticism and need for instant gratification that we have all grown accustomed to in this “fact-checking” era.

What does this mean as a trial lawyer?

  • Do your homework. We should assume that every argument or claim we make in court will be met with some level of skepticism by an audience that is used to being able to do a quick google search to get the answers they need/want. Present your arguments in a way that does the fact checking for them, is supported by the evidence, and anticipates that skepticism.
  • Connect the dots. Make it easy for the jury. Jurors today are used to instant-gratification access of information. Make your arguments clear and concise.
  • Poke holes. When the other side fails to connect the dots or provide support for their arguments, be the fact-checker for the jury. Show the jury why they should be skeptical of the other side’s arguments.
  • Explain the why. This ties into the instant-gratification concept, but today’s jurors do not want their time wasted. Explain to them why the witness or testimony you are presenting is important. Give them a why to latch on to.
  • Be self-critical. Just because something seems important to you does not mean that the jury will care about it. Be critical of the arguments you want to present and how you want to present them. Mock them. Seek feedback. It may not be as ground-breaking as you think, and the jury may consider it a waste of time (see above).
  • The best defense is a good offense. Similarly, when the other side wastes the jurors time on witnesses, issues, testimony, or exhibits that are not important to the claims at issue in the case, use that to your advantage.

Trying cases today is different than it was even three years ago. The world is different. People’s expectations are different. As trial lawyers, we must recognize these changes and adapt to the juries of today. These are just a few ideas to think about as you prepare for trying a case before today’s jurors, but it is important to think critically and creatively to meet your audience where they are. Be persuasive, be passionate, and be an advocate. Good luck!

Kasey Mitchell Adams is an attorney in Jackson, Mississippi, with Butler Snow LLP. She currently serves as cochair of the Litigation Section’s Mass Tort Committee’s Young Lawyers Subcommittee.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Copyright © 2023, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).